<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
___________
FORM 10-K
___________
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998 Commission file number: 1-14323
Enterprise Products Partners L.P.
(Exact name of registrant as specified in its charter)
Delaware 76-0568219
(State or other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2727 North Loop West, Houston, Texas 77008-1037
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code : (713) 880-6500
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
Common Units New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Aggregate market value of the Common Units held by non-affiliates of the
registrant, based on closing prices in the daily composite list for transactions
on the New York Stock Exchange on March 1, 1999, was approximately $174,138,874.
This figure assumes that the directors and executive officers of the General
Partner, the Enterprise Products 1998 Unit Option Plan Trust, and the EPOLP 1999
Grantor Trust were affiliates of the Registrant.
The registrant had 45,552,915 Common Units outstanding as of March 1, 1999.
<PAGE>
ENTERPRISE PRODUCTS PARTNERS L.P.
TABLE OF CONTENTS
Page No.
PART I
Items 1 and 2. Business and Properties. 3
Item 3. Legal Proceedings. 25
Item 4. Submission of Matters to a Vote of Security Holders. 25
PART II
Item 5. Market for Registrant's Common Equity
and Related Unitholder Matters. 26
Item 6. Selected Financial Data. 27
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operation. 28
Item 7A. Quantitative and Qualitative Disclosures about Market Risk. 36
Item 8. Financial Statements and Supplementary Data. 36
Item 9. Changes in and disagreements with Accountants on Accounting
and Financial Disclosure. 36
PART III
Item 10. Directors and Executive Officers of the Registrant. 37
Item 11. Executive Compensation. 39
Item 12. Security Ownership of Certain Beneficial Owners
and Management. 40
Item 13. Certain Relationships and Related Transactions. 40
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on
Form 8-K. 43
2
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PART I
Items 1 and 2. Business and Properties.
Enterprise Products Partners L.P. ("Enterprise" or the "Company") is a
leading integrated North American provider of processing and transportation
services to domestic and foreign producers of natural gas liquids ("NGLs") and
other liquid hydrocarbons and domestic and foreign consumers of NGL and liquid
hydrocarbon products. The Company manages a fully integrated and diversified
portfolio of midstream energy assets and is engaged in NGL processing and
transportation through direct and indirect ownership and operation of NGL
fractionators. It also manages NGL processing facilities, storage facilities,
pipelines, and rail transportation facilities, and methyl tertiary butyl ether
("MTBE") and propylene production and transportation facilities in which it has
direct and indirect ownership.
The Company is a publicly traded master limited partnership (NYSE, symbol
"EPD") that conducts substantially all of its business through Enterprise
Products Operating L.P. (the "Operating Partnership"), the Operating
Partnership's subsidiaries, and a number of joint ventures with industry
partners. The Company was formed in April 1998 to acquire, own, and operate all
of the NGL processing and distribution assets of Enterprise Products Company
("EPCO").
The Company completed a public offering of 12,000,000 Common Units,
representing a 17.7% interest in the Company on July 27, 1998. The net proceeds
of the offering were approximately $243.3 million. EPCO and its affiliates hold
33,552,915 Common Units and 21,409,870 Subordinated Units. The general partner
of the Company, Enterprise Products GP, LLC, a majority-owned subsidiary of
EPCO, holds a 1.0% general partner interest in the Company and a 1.0101% general
partner interest in the Operating Partnership.
The principal executive office of the Company is located at 2727 North Loop
West, Houston, Texas, 77008-1038, and the telephone number of that office is
713-880-6500. References to, or descriptions of, assets and operations of the
Company in this Annual Report include the assets and operations of the Operating
Partnership and its subsidiaries as well as the predecessors of the Company.
Uncertainty of Forward-Looking Statements and Information. This Annual
Report contains various forward-looking statements and information that are
based on the belief of the Company and the General Partner, as well as
assumptions made by and information currently available to the Company and the
General Partner. When used in this document, words such as "anticipate,"
"estimate," "project," "expect," "plan," "forecast," "intend," "could," and
"may," and similar expressions and statements regarding the Company's business
strategy and plans and objectives of the Company for future operations, are
intended to identify forward-looking statements. Although the Company and the
General Partner believe that the expectations reflected in such forward-looking
statements are reasonable, they can give no assurance that such expectations
will prove to be correct. Such statements are subject to certain risks,
uncertainties, and assumptions. If one or more of these risks or uncertainties
materialize, or if underlying assumptions prove incorrect, actual results may
vary materially from those anticipated, estimated, projected, or expected.
Among the key risk factors that may have a direct bearing on the Company's
results of operations and financial condition are: (a) competitive practices in
the industries in which the Company competes, (b) fluctuations in oil, natural
gas, and NGL product prices and production, (c) operational and systems risks,
(d) environmental liabilities that are not covered by indemnity or insurance,
(e) the impact of current and future laws and governmental regulations
(including environmental regulations) affecting the NGL industry in general, and
the Company's operations in particular, (f) loss of a significant customer, and
(g) failure to complete one or more new projects on time or within budget.
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Enterprise Products Operating L.P. owns and operates NGL fractionation,
propylene production, isobutane production, storage, pipeline, and import/export
assets that were acquired from EPCO. Among these assets are the following
joint ventures:
. a 33-1/3% economic interest in Belvieu Environmental Fuels ("BEF"),
which owns and operates a MTBE production facility.
. a 49% economic interest in Mont Belvieu Associates ("MBA"), which owns a
50% interest in a NGL fractionation facility.
. a 50% aggregate economic interest in EPIK Terminalling L.P. and EPIK Gas
Liquids, LLC (collectively, "EPIK"), which own a refrigerated NGL marine
terminal loading facility.
. a 27.5% economic interest in Baton Rouge Fractionators LLC ("BRF"),
which owns a NGL fractionation facility that is under construction.
. a 33-1/3% economic interest in Wilprise Pipeline Company, LLC
("Wilprise"), which owns a NGL pipeline system that is under
construction.
. a 16-2/3% economic interest in Tri-States NGL Pipeline, LLC ("Tri-
States"), which owns a NGL pipeline system that is under construction.
4
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The following chart shows the organizational structure and ownership of
entities:
[CHART APPEARS HERE]
Sorrento Pipeline Company, LLC, Cajun Pipeline Company, LLC and Chunchula
Pipeline Company, LLC own NGL pipelines located in the southeastern United
States. Propylene Pipeline Partnership, L.P. owns interests in propylene
pipelines located in Texas and Louisiana. HSC Pipeline Partnership, L.P. owns
NGL pipeline assets in Mont Belvieu, Texas and the Houston ship channel area.
Enterprise Products Texas Operating L.P. owns a 49% interest in MBA which owns a
50% interest in a NGL fractionation facility.
Business Strategy
The Company's business strategy is to grow its core assets and maximize the
returns to Unitholders. The Company intends to pursue this strategy principally
by:
Capitalizing on Expected Increases in NGL Production. The Company believes
production of both oil and natural gas in the Gulf of Mexico will continue to
increase over the next several years. The Company intends to capitalize on its
existing infrastructure, market position,
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strategic relationships and financial flexibility to expand its operations to
meet the anticipated increased demand for NGL processing services. Of particular
significance will be production associated with the development of natural gas
fields in Mobile Bay and the Gulf of Mexico offshore Louisiana, which are
expected to produce natural gas with significantly higher NGL content than
typical domestic production. The Company believes the Gulf Coast is the only
major marketplace that has sufficient storage facilities, pipeline distribution
systems and petrochemical and refining demand to absorb this new NGL production.
Expanding through Construction of Identified New Facilities. The Company is
participating in a joint venture to own a new 60,000 barrel per day NGL
fractionation facility (expandable to 100,000 barrels per day) near Baton Rouge,
Louisiana that is currently under construction. The Company will operate the
fractionator and will process NGLs from the Mobile Bay/Pascagoula and south
Louisiana areas. In association with this project, the Company is participating
in the Wilprise NGL pipeline system, and in January 1999, the Company completed
the transaction to form the Tri-States Pipeline joint venture. These pipeline
systems will transport NGLs from Mobile Bay and south Louisiana to near Baton
Rouge. The Company is participating in a joint venture to own a NGL product
chiller that is under construction and will be operated by the Company at its
NGL import/export facility (the "NGL Product Chiller") on the Houston ship
channel. This facility will improve the Company's ability to load refrigerated
butane and propane onto tankers for export.
The Company's participation in these new projects is described in the
following table:
<TABLE>
<CAPTION>
Estimated
Cost to the Company's
Planned Company Ownership
Project Status Start-Up Date (in millions) Percentage
------- ------ ------------- ------------- ----------
<S> <C> <C> <C> <C>
Tri-States Pipeline Under construction 2nd QTR 1999 $14.5 16-2/3%
Wilprise Pipeline Under construction 2nd QTR 1999 7.7 33-1/3%
Baton Rouge Fractionator Under construction 2nd QTR 1999 24.6 27.5%
NGL Product Chiller Under construction 4th QTR 1999 11.0 50.0%
-----
$57.8
=====
</TABLE>
Investing with Strategic Partners. The Company will continue to pursue
joint investments with oil and natural gas producers that can commit feedstock
volumes to new facilities or with petrochemical companies that agree to purchase
a significant portion of the production from new facilities. For example, the
Company will be partners with Amoco, Exxon and Williams in the Baton Rouge
fractionation facility; with Amoco, Duke Energy, Koch, Tejas (a Shell
subsidiary) and Williams in the Tri-States pipeline; and with Amoco and Williams
in the Wilprise pipeline. The Company believes commitments from producers to
bring NGL volumes to new fractionation facilities and pipelines are central to
establishing the viability of new investments in the NGL processing and
transportation industry.
Expanding Through Acquisitions. The Company intends to analyze potential
acquisitions, joint ventures or similar transactions with businesses that
operate in complementary markets and geographic regions. In recent years, major
oil and natural gas companies have sold non-strategic assets including assets in
the mid-stream natural gas industry. The Company believes this trend will
continue and further expects independent oil and natural gas companies to
consider similar options.
Managing Commodity Price Exposure. A substantial portion of the Company's
operations are conducted pursuant to tolling contracts or involve NGL
transportation where the Company does not take title to its customer's products,
but rather processes or transports a raw feedstock or product for a fee. When
the Company does take title to the products it processes, it generally attempts
to match the timing and price of its feedstock purchases with those of the sales
of end products so as to reduce exposure to fluctuations in commodity prices.
The Company generally does not use derivatives to manage its commodity risk.
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General
The Company is a leading integrated provider of processing and
transportation services to producers of NGLs and consumers of NGL products. The
Company (i) fractionates for a processing fee mixed NGLs produced as by-products
of oil and natural gas production into their component products: ethane,
propane, isobutane, normal butane and natural gasoline; (ii) converts normal
butane to isobutane through the process of isomerization; (iii) produces MTBE
from isobutane and methanol; and (iv) transports NGL products to end users by
pipeline and railcar. The Company also separates high purity propylene from
refinery-sourced propane/propylene mix and transports high purity propylene to
plastics manufacturers by pipeline. Products processed by the Company generally
are used as feedstocks in petrochemical manufacturing, in the production of
motor gasoline and as fuel for residential and commercial heating.
The Company's processing operations are concentrated in Mont Belvieu,
Texas, which is the hub of the domestic NGL industry and is adjacent to the
largest concentration of refineries and petrochemical plants in the United
States. The facilities operated by the Company at Mont Belvieu include: (i) one
of the largest NGL fractionation facilities in the United States with an average
production capacity of 210,000 barrels per day; (ii) the largest butane
isomerization complex in the United States with an average isobutane production
capacity of 116,000 barrels per day; (iii) one of the largest MTBE production
facilities in the United States with an average production capacity of 14,800
barrels per day; and (iv) two propylene fractionation units with an average
combined production capacity of 30,000 barrels per day. The Company owns all of
the assets at its Mont Belvieu facility except for the NGL fractionation
facility, in which it owns an effective 37.0% economic interest; one of the
propylene fractionation units, in which it owns a 54.6% interest and controls
the remaining interest through a long-term lease; the MTBE production facility,
in which it owns a 33-1/3% interest; and one of its three isomerization units
and one deisobutanizer which are held under long-term leases with purchase
options. The Company also owns and operates approximately 35 million barrels of
storage capacity at Mont Belvieu and elsewhere that are an integral part of its
processing operations, a network of approximately 500 miles of pipelines along
the Gulf Coast and a NGL fractionation facility in Petal, Mississippi with an
average production capacity of 7,000 barrels per day. The Company also leases
and operates one of only two commercial NGL import/export terminals on the Gulf
Coast.
The Company's operating margins are derived from services provided to
tolling customers and from merchant activities. In its toll processing
operations, the Company does not take title to the product and is simply paid a
fee based on volumes processed. The Company's profitability from toll processing
operations depends primarily on the volumes of NGLs and refinery-sourced
propane/propylene mix processed and transported and the level of associated fees
charged to its customers. The profitability of the Company's toll processing
operations is largely unaffected by short-term fluctuations in the prices for
oil, natural gas or NGLs. In its merchant activities, the Company takes title to
feedstock products and sells processed end products. The Company's profitability
from merchant activities is dependent on the prices of its feedstocks and end
products, which typically vary on a seasonal basis. In its merchant activities,
the Company generally seeks to reduce commodity price exposure by matching the
timing and price of its feedstock purchases with sales of end products.
The Company has expanded rapidly since its inception in 1968, primarily
through internal growth and the formation of joint ventures. This growth
reflects the increased demand for NGL processing due to increased domestic
natural gas production and crude oil refining and increased demand for processed
NGLs in the petrochemical industry. Over the last few years the Company has
increased its NGL fractionation capacity by approximately 35%, built a third
isomerization unit that increased its isobutane production capacity by
approximately 60%, increased deisobutanizer capacity by approximately 54%,
constructed a second propylene fractionation unit which approximately doubled
production capacity and made its investment in the MTBE facility at Mont
Belvieu. The Company believes the demand for its services will continue to
increase, principally as a result of expected increases in natural gas
production, particularly in the Gulf of Mexico, and
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generally increasing domestic and worldwide petrochemical production.
Accordingly, the Company has initiated several new projects which are currently
in construction.
The Company has only one reportable segment: NGL Operations. This segment
is reported on under five distinct business units: NGL Fractionation,
Isomerization, MTBE Production, Propylene Fractionation, and Other Businesses.
For a discussion of the financial results of these business units over the last
three fiscal years, see "Management's Discussion and Analysis of Financial
Condition and Results of Operation." For total consolidated revenues over the
last three fiscal years, see the section labeled "Selected Financial Data."
NGL Fractionation
General
The three principal sources of NGLs fractionated in the United States are
(i) domestic gas processing plants, (ii) domestic crude oil refineries and (iii)
imports of butane and propane mixtures. When produced at the wellhead, natural
gas consists of a mixture of hydrocarbons that must be processed to remove NGLs
and other impurities. Gas processing plants are located near the production
area and separate pipeline quality natural gas (principally methane) from NGLs
and other materials. After being extracted in the field, mixed NGLs, sometimes
referred to as "y-grade" or "raw make," are typically transported to a
centralized facility for fractionation. Crude oil and condensate production also
contain varying amounts of NGLs, which are removed during the refining process
and are either fractionated by refiners or delivered to NGL fractionation
facilities. Domestic NGL production has increased in recent years, and the
Company believes, based on published industry data and its knowledge of the
industry, that this supply growth will continue over the next several years.
The mixed NGLs delivered from gas plants to centralized fractionation
facilities like those operated by the Company at Mont Belvieu are typically
transported by NGL pipelines. The following table lists the primary NGL
pipelines which connect to the Company's NGL fractionation facilities and the
other sources of mixed NGL supply:
<TABLE>
<CAPTION>
Source Parties Served Area of Origination
------ -------------- -------------------
<S> <C> <C> <C>
Black Lake Pipeline Enterprise/Dynegy North Louisiana
Central Louisiana
East Texas
Chaparral Pipeline Common Carrier West Texas
North Texas
Dean Pipeline Enterprise* South Texas
Enterprise Import/Export Facility Enterprise* Foreign imports
Enterprise Rail/Truck Terminal Common Carrier United States
Houston Ship Channel Pipeline Enterprise* Foreign Imports
Local Refineries
Panola Pipeline Enterprise* East Texas
Seminole Pipeline Common Carrier Rocky Mountains
Mid-Continent
West Texas
West Texas LPG Pipeline Common Carrier West Texas
North Texas
East Texas
---------------------------
* NGLs from these sources are delivered exclusively to the Company's Mont Belvieu NGL
fractionation facilities.
</TABLE>
NGL fractionation facilities separate mixed NGL streams into discrete NGL
products: ethane, propane, isobutane, normal butane and natural gasoline.
Ethane is primarily used in the petrochemical industry as feedstock for
ethylene, one of the basic building blocks for a wide range of plastics and
other chemical products. Propane is used both as a petrochemical feedstock in
the production of ethylene and propylene and as heating, engine and industrial
fuel. Isobutane is
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fractionated from mixed butane (a stream of normal butane and isobutane in
solution) or refined from normal butane through the process of isomerization,
principally for use in refinery alkylation to enhance the octane content of
motor gasoline and in the production of MTBE, an oxygenation additive in cleaner
burning motor gasoline. Normal butane is used as a petrochemical feedstock in
the production of ethylene and butadiene (a key ingredient in synthetic rubber),
as a blendstock for motor gasoline and to derive isobutane through
isomerization. Natural gasoline, a mixture of pentanes and heavier hydrocarbons,
is used primarily as motor gasoline blend stock or petrochemical feedstock.
The Company's NGL Fractionation Facilities
At Mont Belvieu, the Company operates one of the largest NGL fractionation
facilities in the United States with an average production capacity of 210,000
barrels per day. Mont Belvieu is approximately 25 miles east of Houston and is
the hub of the domestic NGL industry because of its proximity to the
petrochemical and refinery markets of the Gulf Coast and its location on a large
naturally-occurring salt dome that provides for the underground storage of
significant quantities of NGLs. Excluding NGLs fractionated in facilities which
are captive to certain refineries (non-commercial fractionation), approximately
one-half of all NGLs fractionated in the United States are fractionated at Mont
Belvieu, and the Company's fractionation facilities currently account for
approximately 33% of total NGL fractionation capacity at Mont Belvieu.
The Company's Mont Belvieu NGL fractionation facilities include two
fractionation trains. Each train consists of a series of towers and is named
after the point of origin of the NGL pipelines from which the facilities were
originally fed. The West Texas Fractionator was constructed in 1980 with an
average production capacity of 35,000 barrels per day and was expanded to 70,000
barrels per day capacity in 1988 and 115,000 barrels per day capacity in 1996.
The Seminole Fractionator was constructed in 1982 with an average production
capacity of 60,000 barrels per day and was expanded to 95,000 barrels per day
capacity in 1985. The individual towers within the fractionation trains are de-
ethanizers, depropanizers, debutanizers and deisobutanizers ("DIBs"). The two
fractionation trains currently include three de-ethanizers, three depropanizers,
three debutanizers and one DIB.
The Company owns an effective 37.0% economic interest in the NGL
fractionation facilities at its Mont Belvieu complex. The remaining interests
are owned by Kinder Morgan (25.0%), Burlington Resources (12.5%), Texaco
(12.5%), Union Pacific Resources (12.5%) and EPCO (0.5%). The Company operates
the facilities pursuant to an operating agreement that extends for their useful
operating life. The Company also owns and operates a NGL fractionation facility
at Petal, Mississippi. The Petal facility has two depropanizers and two DIBs
with an average production capacity of approximately 7,000 barrels per day. The
Petal facility is connected to the Company's Chunchula pipeline system and
serves NGL producers in Mississippi, Alabama and Florida.
The Company is participating in a joint venture with Amoco, Exxon and
Williams to own a 60,000 barrel per day NGL fractionation facility near Baton
Rouge, Louisiana. Construction of the facility is underway, with start-up
scheduled during the second quarter of 1999. The Company will operate the
facility and holds a 27.5% ownership interest at December 31, 1998. It is
expected that Amoco, Exxon, and Williams will provide an adequate supply of NGLs
produced in Alabama, Mississippi and southern Louisiana including offshore areas
to ensure the plant will operate at full capacity.
The Company's NGL Fractionation Customers and Contracts
The Company primarily processes NGLs for a toll processing fee.
Fractionation contracts typically include a base processing fee per gallon
subject to adjustment for changes in natural gas, electricity and labor costs,
which are the principal variable costs in NGL fractionation. NGL producers
generally retain title to, and the pricing risks associated with, the NGL
products.
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The Company has long-term fractionation agreements with Burlington
Resources, Texaco and Union Pacific Resources, each of which is a significant
producer of NGLs and a co-owner of the Mont Belvieu NGL fractionation facility.
Burlington Resources and Texaco have agreed to deliver either a minimum of
39,000 barrels per day of mixed NGLs or all of their mixed NGLs brought within
50 miles of Mont Belvieu. Union Pacific Resources has agreed to deliver 26,000
barrels per day of mixed NGLs as well as additional barrels that exceed its
commitments to other facilities. The Company generally enters into contracts
that cover most of the remaining capacity at the facilities for one to three-
year terms with customers such as Lyondell, Aquila Energy, Enron, Exxon,
Williams and Marathon/Ashland. The Company also purchases a small quantity of
mixed NGLs from oil and natural gas producers who prefer to sell at the gas
processing plant or the fractionation facility. The Company resells the
separated components of these NGLs in the spot market or uses them as feedstock
for its other operations.
The following table demonstrates the volumes of NGLs at the Mont Belvieu
facility accounted for by the joint owners in 1998:
Principal 1998 NGL Fractionation Customers
Average Total Percent of
Daily 1998 Total 1998
Customer Name Volumes Volumes Volumes
--------------------------------- ------- ------- -------
(thousands (millions of
of barrels) barrels)
Joint Owners
Burlington Resources 45.4 16.6 24%
Union Pacific Resources 60.4 22.0 32%
Texaco 37.1 13.6 19%
Enterprise 5.6 2.0 3%
---------------------------
Joint Owners Total 148.5 54.2 78%
All Others (12 Processing Customers) 42.7 15.6 22%
---------------------------
Total Processing 191.2 69.8 100%
===========================
In each of the last five years, the Mont Belvieu fractionation facilities
have operated at more than 90% capacity. The following table shows the volumes
of mixed NGLs fractionated and the utilization at these facilities over this
period:
Mont Belvieu NGL Fractionation Volumes and Utilization
<TABLE>
<CAPTION>
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Average daily production volume (thousands of barrels) 158 158 166 189 191
Average capacity utilization (a) 95% 95% 97% 92% 92%
Tolling volume as a percentage of total volume 94% 86% 90% 96% 96%
</TABLE>
-------------------
(a) The Company completed an expansion of the facilities in November 1996,
which increased capacity from 165,000 barrels per day to 210,000
barrels per day. This increased production capacity was not fully
utilized until mid-1997. Capacity utilization is based on days the
facilities are in operation and may vary from the stated capacity of
the facilities.
Isomerization
General
Isomerization is the process of converting normal butane into mixed butane,
which is subsequently fractionated into isobutane and normal butane. The demand
for commercial isomerization services depends on requirements for isobutane in
excess of naturally occurring isobutane that is produced from fractionation and
refinery operations. The profitability of isomerization operations is largely
dependent upon the differential in the prices of normal butane and isobutane.
The spread between the prevailing prices of normal butane and isobutane must be
sufficient to support the conversion of normal butane into isobutane by the
isomerization process.
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It is generally uneconomical to convert normal butane into isobutane when the
price spread is too narrow. To satisfy its customers' requirements at these
times, the Company has either purchased isobutane in the market or separated
isobutane from mixed butane held in inventory.
Isobutane is principally supplied by NGL fractionation and commercial
isomerization units, such as those operated by the Company. The principal
sources of demand for isobutane are refineries for alkylation, petrochemical
companies for the production of propylene oxide and MTBE producers.
The Company's Isomerization Facilities
The Company's Mont Belvieu facility includes three butane isomerization
units and eight DIBs which comprise the largest butane isomerization complex in
the United States. The Company's facilities have an average combined production
capacity of 116,000 barrels of isobutane per day and account for more than 70%
of the commercial isobutane production capacity in the United States. The
Company built its first two isomerization units ("Isom I and II") in 1981, each
with a capacity of 13,500 barrels per day. In 1991 and 1992, the capacity of
each of these units was increased to 36,000 barrels per day. The third
isomerization unit ("Isom III") was completed in 1992 with a capacity of 44,000
barrels per day. The Company has the operating flexibility to switch the
process streams from its isomerization units among different DIB units in order
to maximize overall plant efficiency. The Company is also able to process
fluoridic, lower cost butanes from oil refineries, which it would otherwise be
unable to process, by first passing those butanes through an associated
defluorinator.
The Company's Isomerization Customers and Contracts
The Company uses its isomerization facilities to convert normal butane to
isobutane for its tolling customers and to meet isobutane sales contracts. The
Company's most significant processing customers typically operate under long-
term contracts. Lyondell accounted for approximately 38.9% of the Company's
isomerization volumes in 1998. The Company's current contract with Lyondell has
a ten-year term which expires in December 2009. Lyondell supplies the normal
butane feedstock and pays the Company a processing fee based on the gallons of
isobutane produced. Lyondell uses the isobutane processed by the Company to
produce propylene oxide and MTBE.
The Company also has significant isomerization processing contracts with
Huntsman, Sun and Mitchell pursuant to which the customers supply the Company
with normal butane feedstock and pay the Company a processing fee based on the
gallons of isobutane produced. Sun and Mitchell use the isobutane processed for
them by the Company to meet their feedstock obligations as partners in the BEF
MTBE production facility. The Company can also meet its own obligation to
provide isobutane feedstock to the BEF MTBE facility with production from its
isomerization unit.
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As the following table indicates, processing contracts, together with
volumes processed by the Company to meet its obligations to BEF, accounted for
almost 90% of utilization in 1998:
Principal 1998 Isomerization Processing Customers
Average Total Percent of
Daily 1998 Total 1998
Customer Name Volumes Volumes Volumes
------------- ------- ------- -------
(thousands (millions of
of barrels) barrels)
BEF
Enterprise 4.9 1.8 7.4%
Mitchell 5.0 1.8 7.5%
Sun 5.0 1.8 7.5%
-----------------------------------
BEF Subtotal 14.9 5.4 22.4%
Lyondell 25.9 9.5 38.9%
Huntsman 16.5 6.0 24.8%
-----------------------------------
Total 57.3 20.9 86.1%
===================================
In addition to its processing contracts, the Company has also entered into
contracts to sell isobutane to Global Octanes, Texas Petrochemicals, Equistar,
Citgo, Crown Central and Texaco. The Company has long-standing business
relationships with Global Octanes and Texas Petrochemicals. Both of these
contracts were renegotiated in 1998 and provide for the delivery of isobutane on
the Company's pipeline for a fee. The term of the Global contract extends to
April 2002, and the Texas Petrochemicals contract extends to August 2003. Prices
under these contracts generally are based on the spot market price for isobutane
at Mont Belvieu. The Company can meet its sales obligations either by (i)
purchasing normal butane in the spot market and isomerizing it, (ii) purchasing
mixed butane on the spot market, including imports, and processing it through a
DIB or (iii) purchasing isobutane in the spot market. When the price
differential between normal butane and isobutane is not substantial enough to
justify isomerization, the Company purchases isobutane and delivers it to its
sales customers who pay market-based prices. Accordingly, the percentage of
isomerization volumes represented by processing customers increases when the
spread between normal butane and isobutane prices is narrow.
The following table describes the volumes of isobutane produced and the
utilization at the Company's Mont Belvieu facility during the past five years:
Isomerization Volumes and Utilization
<TABLE>
<CAPTION>
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Average daily toll processing volume (a) 45 57 59 62 57
Average daily production volume (a) 66 67 71 67 67
Tolling volume as a percentage of total production 68% 86% 84% 92% 86%
Average capacity utilization 57% 58% 61% 57% 57%
Average daily merchant volume (a)(b) 42 44 52 53 41
</TABLE>
----------------------------
(a) Thousands of barrels per day
(b) Average daily merchant volume includes merchant processing volume
and sales of isobutane purchased in the spot market
Mixed Butane Fractionation
The Company also uses its DIB units to fractionate mixed butane produced
from the Company's NGL fractionation and isomerization facilities and from
imports and other outside sources into isobutane and normal butane. The
operating flexibility provided by its multiple DIBs enables the Company to take
advantage of fluctuations in demand and prices for the different types of
butane. The Company also has DIB capacity available for toll processing of
mixed butane streams for third parties.
12
<PAGE>
Imports are the Company's most significant outside source of mixed butane.
The Company leases and operates a NGL import/export facility on the Houston ship
channel, one of only two commercial facilities on the Gulf Coast capable of
receiving and unloading world-scale NGL tankers. This facility, which is
connected to the Mont Belvieu facility via a pipeline which is part of the
Company's Houston ship channel system, enables the Company to import large
quantities of mixed butane for processing in its DIBs. During 1998, imports,
primarily from Algeria, Mexico and Venezuela, accounted for 92% of the Company's
supply of mixed butane from outside sources. The Company believes, because of
new projects in Africa and South America and the lack of storage capacity in the
Middle East, NGL import volumes will remain consistent over the near term.
MTBE Production
General
MTBE is produced by reacting methanol with isobutylene, which is derived
from isobutane. MTBE was originally used as an octane enhancer in motor
gasoline, partly in response to the lead phase-down program begun in the mid-
1970s. Following implementation of the Clean Air Act Amendments of 1990, MTBE
became a widely-used oxygenate to enhance the clean burning properties of motor
gasoline. Although oxygen requirements can be obtained by using various
oxygenates such as ethanol, ethyl tertiary butyl ether (ETBE) and tertiary amyl
methyl ether (TAME), MTBE has gained the broadest acceptance due to its ready
availability and history of acceptance by refiners. Additionally, motor gasoline
containing MTBE can be transported through pipelines, which is a significant
competitive advantage over alcohol blends.
Substantially all of the MTBE produced in the United States is used in the
production of oxygenated motor gasoline that is required to be used in carbon
monoxide and ozone non-attainment areas pursuant to the Clean Air Act Amendments
of 1990 and the California oxygenated motor gasoline program. Demand for MTBE is
primarily affected by the demand for motor gasoline in these areas. Motor
gasoline usage in turn is affected by many factors, including the price of motor
gasoline (which is dependent upon crude oil prices) and general economic
conditions. Historically, the spot price for MTBE has been at a modest premium
to gasoline blend values. Future MTBE demand is highly dependent on
environmental regulation, federal legislation and the actions of individual
states.
The Company's MTBE Production Facilities
The Company owns a 33-1/3% interest in BEF, the joint venture that owns
the MTBE production facility located within the Company's Mont Belvieu complex.
Both Sun and Mitchell own 33-1/3% interests in BEF. The BEF facility was
completed in 1994 and has an average MTBE production capacity of 14,800 barrels
per day. The Company operates the facility under a long-term contract.
The Company's MTBE Customers and Contracts
Each of the owners of BEF is responsible for supplying one-third of the
facility's isobutane feedstock through June 2004. Sun and Mitchell have each
contracted to supply their respective portions of the feedstock from the
Company's isomerization facilities. The methanol feedstock is purchased from
third parties under long-term contracts and transported to Mont Belvieu by a
dedicated pipeline which is part of the Company's Houston ship channel system.
Sun has entered into a contract with BEF under which Sun is required to take all
of BEF's production of MTBE through May 2005. Under the terms of its agreement
with BEF, through May 2000, Sun is required to pay the higher of a floor price
(approximately $0.78 per gallon at December 31, 1998) or a market-based price
for the first 193,450,000 gallons per contract year of production (equivalent to
approximately 12,600 barrels per day) from the BEF facility, subject to
quarterly adjustments on certain excess volumes. Sun is required to pay a
market-based price for volumes produced in
13
<PAGE>
excess of 193,450,000 gallons per contract year. Since the contract year begins
on June 1, if the facility produces at full capacity during the year, it reaches
193,450,000 gallons of production near the end of March, and sales thereafter
through the end of May are at market-based prices. Generally, the price charged
by BEF to Sun for MTBE has been above the spot market price for MTBE. The
average Gulf Coast MTBE spot price was $.46 per gallon for December 1998 and
$.64 per gallon for all of 1998. Beginning in June 2000, pricing on all volumes
will convert to market-based rates.
The following table shows the production volumes and utilization at BEF's
MTBE facility over the past five years:
<TABLE>
<CAPTION>
MTBE Volumes and Utilization
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Average daily production volume (thousands of barrels) 7.8 9.6 13.2 14.4 14.0
Average capacity utilization 70% 65% 89% 97% 95%
</TABLE>
Propylene Fractionation
General
Polymer grade, or high purity, propylene is one of three grades of
propylene sold in the United States and is used in the petrochemical industry
for the production of plastics. High purity propylene is typically over 99.5%
pure propylene and is derived by purifying either of the lower grade propylene
feedstocks, refinery grade or chemical grade. Chemical grade propylene is 92-93%
pure propylene and is produced as a by-product of olefin (ethylene) plants. The
supply of chemical grade propylene is insufficient to meet the demand for high
purity propylene; therefore, remaining demand is satisfied by the purification
of refinery grade propylene. Refinery grade propylene, or propane/propylene mix,
is 50-70% pure propylene, with the primary impurity being propane.
Propane/propylene mix is produced in crude oil refinery fluid catalytic cracking
plants and is fractionated to separate propane and other impurities from the
high purity propylene. The fractionation process occurs either at the crude oil
refinery or at a commercial propylene fractionation facility like those operated
by the Company.
Since 1995, domestic high purity propylene production has remained fairly
constant, aggregating approximately 112,000 barrels per day in 1998.
Polypropylene production accounts for approximately one-half of the demand for
high purity propylene. Polypropylene has a variety of end uses, including fiber
for carpets and upholstery, packaging film and molded plastic parts for
appliance, automotive, houseware and medical products. Another use for propylene
is to produce alkylate for blending into gasoline.
The Company's Propylene Facilities
In 1979, the Company, together with Montell (a Shell subsidiary),
constructed its first propylene fractionation unit. The unit, which is also
called a "splitter," had an initial average production capacity of 5,500 barrels
per day. The facility has been expanded over the years to a current average
propylene production capacity of 16,500 barrels per day. The Company owns a
54.6% interest in the splitter, and Montell owns the remaining 45.4% interest.
The Company leases Montell's interest. In response to strong demand, the Company
constructed a second propylene fractionation unit in March 1997. The new unit
has an average production capacity of 13,500 barrels per day. The Company is the
sole owner of the second splitter; however, Mobil has an option to purchase a
25.0% interest in the splitter for approximately $13.75 million for a one-year
period ending September 30, 1999. Together, the splitters have an average
production capacity of 30,000 barrels per day of high purity propylene.
14
<PAGE>
The Company is able to unload barges carrying propane/propylene mix through
its import/export facility on the Houston ship channel. The Company is also able
to receive supplies of propane/propylene mix from its truck and rail loading
facility and from refineries and other propane/propylene mix producers through
its pipeline located along the Houston ship channel.
The Company's Propylene Customers and Contracts
The Company produces high purity propylene both as a toll processor and for
sale pursuant to long-term agreements with market-based pricing and on the spot
market. The Company's most significant toll processing contracts are with
Equistar and Huntsman. Pursuant to those contracts, the Company is guaranteed
certain minimum volumes and paid a processing fee based on the pounds of high
purity propylene processed. The Company also has a toll processing contract with
Montell. The Company has several long-term high purity propylene sales
agreements, the most significant of which is with Montell. Pursuant to the
Montell agreement, the Company agrees to sell Montell 700 million pounds, equal
to approximately 11,000 barrels per day, of high purity propylene each year at
market-based prices. The Company has supplied Montell with propylene since the
first splitter facility was constructed in 1979. The contract is currently
scheduled to expire on December 31, 2004. Montell has the option to renew the
contract for another 12 years. To meet its sales obligations, the Company has
entered into several long-term agreements to purchase propane/propylene mix. The
Company's most significant feedstock contracts are with Mobil and Shell.
Principal 1998 Propylene Fractionation Customers
Average Total Percent of
Daily 1998 Total 1998
Customer Name Volumes Volumes Volumes
--------------------- ------- ------- -------
(thousands (millions of
of barrels) barrels)
Processing Customers:
Montell 1.1 0.4 4.3%
Equistar 6.2 2.3 24.4%
Huntsman 3.7 1.4 14.9%
Chevron 1.1 0.4 4.3%
---------------------------------
Total Processing 12.1 4.5 47.9%
Sales Customers:
Montell 10.9 4.0 42.5%
Huntsman 1.2 0.4 4.3%
Other 1.4 0.5 5.3%
---------------------------------
Total Sales 13.5 4.9 52.1%
---------------------------------
Total 25.6 9.4 100.0%
=================================
The following table shows the volumes of propylene produced and utilization
at the Company's facilities over the past five years:
<TABLE>
<CAPTION>
Propylene Fractionation Volumes and Utilization
1994 1995 1996 1997 1998
<S> <C> <C> <C> <C> <C>
Average daily production volume (thousands of barrels) 14 16 16 26 26
Average capacity utilization (a) 84% 100% 100% 93% 85%
Tolling volumes as a percentage of total volume 35% 35% 33% 47% 47%
</TABLE>
----------------------------
(a) The Company began operating its second splitter in March 1997 resulting
in an increase in capacity to 30,000 barrels per day. During the last
six months in 1997, average daily production volume was 29,000 barrels
per day.
15
<PAGE>
Other Businesses
Storage
NGLs, NGL products, propane/propylene mix and other light hydrocarbons must
be pressurized or refrigerated for storage or transportation in a liquid state.
Above-ground storage of these materials in refrigerated or pressurized
containers is uneconomical in the quantities required for efficient processing
and industrial consumption. For this reason, such materials are typically stored
in underground caverns, or wells, within salt domes or salt beds. These salt
formations provide a medium which is impervious to the stored products and can
contain large quantities of hydrocarbons in a safer manner and at a
significantly lower per-unit cost than any above-ground alternative. Brine is
used to displace the stored products and to maintain pressure in the well as
product volumes fluctuate. The Company owns nine storage wells at Mont Belvieu
with an aggregate capacity of approximately 20 million barrels. The Company also
owns NGL storage caverns in Breaux Bridge, Louisiana and Petal, Mississippi with
additional capacity of 15 million barrels.
Several of the wells at Mont Belvieu are used to store mixed NGLs and
propane/propylene mix that have been delivered for processing. Such storage
allows the Company to mix various batches of feedstock and maintain a sufficient
supply and stable composition of feedstock to the processing facilities. The
Company stores certain fractionated products for its customers when they are
unable to take immediate delivery. These products include propane, isobutane,
normal butane, mixed butane and high purity propylene. The Company's storage and
product handling facilities and pipeline systems also enable it to unload
feedstocks and load processed products on marine tankers at maximum rates. Some
of the Company's processing contracts allow for a short period of free storage
(typically 30 days or less) and impose fees based on volumes stored for longer
periods.
Pipelines
The Company owns and operates a network of approximately 500 miles of NGL,
NGL product and propylene pipelines in the Gulf Coast area.
The following table identifies the Company's primary pipeline assets as of
December 31, 1998:
<TABLE>
<CAPTION>
Company
Ownership
Pipeline System Location Miles Function Percentage
--------------- -------- ----- -------- ----------
<S> <C> <C> <C> <C>
Houston Ship Channel Mont Belvieu to 175 Delivers NGLs to Mont Belvieu and NGL 100%
Port of Houston products to refineries and petrochemical
companies
Sorrento Near Baton Rouge to near 140 Delivers NGL products to refineries and 100%
New Orleans petrochemical companies and Dixie Pipeline
Chunchula Alabama/Florida border 117 Delivers NGLs to Petal Fractionator 100%
to Petal, Mississippi
Lake Charles/Bayport Mont Belvieu to Lake 134 Delivers high purity propylene from Mont 50%
Propylene Pipeline Charles, Louisiana and Belvieu to Montell's Lake Charles and
Bayport, Texas Bayport propylene plants and to Aristech's
La Porte facility and receives refinery grade
propylene from Mobil at Beaumont
</TABLE>
The Houston ship channel distribution system and the Sorrento system are
bi-directional for maximum operating flexibility, market responsiveness and
transportation efficiency. These systems transport feedstocks to the Company's
facilities for processing and deliver products to petrochemical plants and
refineries. The Houston ship channel distribution system has an aggregate
16
<PAGE>
length of approximately 175 miles and extends west from Mont Belvieu, along the
Houston ship channel to Pierce Junction south of Houston. The Houston ship
channel system includes (i) a combination 6-inch and 8-inch propane/propylene
mix pipeline; (ii) a combination 8-inch and 10-inch isobutane pipeline; (iii) an
8-inch methanol pipeline; and (iv) a combination 12-inch and 16-inch NGL
import/export pipeline. The Houston ship channel distribution system serves the
refinery and petrochemical industry concentrated along the Houston ship channel
and connects the Mont Belvieu facilities to a number of the Company's major
customers and suppliers.
The Sorrento system comprises two pipeline subsystems aggregating 140 miles
in length that originate from Sorrento, Louisiana and serve the major refineries
and petrochemical companies on the Mississippi River from near Baton Rouge,
Louisiana to near New Orleans, Louisiana. One subsystem is used for transporting
propane, and one is used for transporting butane and natural gasoline. Propane
received in the Sorrento system is delivered to petrochemical plants or into the
Dixie Pipeline. Butane from Mont Belvieu is received from the Dixie Pipeline at
the Company's Breaux Bridge storage facility, and transported through the
Sorrento system to refineries.
In January 1999, the Company announced the formation of a new joint
venture, Entell NGL Services, LLC ("Entell"), for the development of a NGL
transportation and distribution system. Entell anticipates that the system will
be capable of distributing products from key NGL sources in southern Louisiana
directly to major NGL markets, including the lower Mississippi River corridor,
Dixie pipeline, Lake Charles, Louisiana and Mont Belvieu, Texas. Entell is
equally owned by the Company and Tejas (a Shell subsidiary). Entell leases from
the Company a portion of the Sorrento pipeline system connecting several market
centers in Louisiana, including Breaux Bridge, Tebone, Riverside, Sorrento and
Garyville. These assets have the capacity to move a total of 80,000 barrels per
day.
The Chunchula system originates at the Alabama-Florida border and extends
west to the Company's NGL storage and fractionation facility in Petal,
Mississippi. The Company owns and operates this 117-mile, 6-inch line consisting
of the Chunchula Pipeline and the Jay Extension that gathers NGLs from the
Chunchula, Jay and Hatters Pond Fields in Florida and Alabama for delivery to
the Company's facility in Petal, Mississippi for processing or storage and
further distribution.
The Company operates a 134-mile propylene pipeline system which is used to
distribute high purity propylene from Mont Belvieu to Montell's polypropylene
plants in Lake Charles, Louisiana and Bayport, Texas and Aristech's facility in
LaPorte, Texas. A segment of the pipeline is jointly owned by the Company and
Montell, and another segment of the pipeline is jointly leased from Mobil.
The Company is participating in pipeline joint ventures which will support
its Baton Rouge NGL fractionator joint venture. The Tri-States Pipeline, a joint
venture with Amoco, Duke Energy, Koch, Williams and Tejas (a Shell subsidiary),
will extend approximately 169 miles from Mobile Bay, Alabama to near Kenner,
Louisiana. The Wilprise Pipeline, a joint venture with Williams and Amoco, will
extend approximately 30 miles from Kenner to Sorrento, Louisiana.
Houston Ship Channel Import/Export Facility; Rail Cars and Facilities
The Company leases and operates a NGL import/export facility at the
Oiltanking Houston marine terminal on the Houston ship channel. The
import/export facility is connected to Mont Belvieu via the Company's 16-inch
bi-directional import/export pipeline. This pipeline enables NGL tankers to be
offloaded at their maximum (10,000 barrels per hour) unloading rate, thus
minimizing laytime and increasing the number of vessels that can be offloaded.
An 8-inch methanol pipeline which is part of the Houston ship channel
distribution system also extends from the facility to Mont Belvieu and enables
methanol to be delivered by ship and then transferred to the MTBE facility.
EPIK, a joint venture with Idemitsu, is constructing the NGL Product Chiller
17
<PAGE>
for cooling NGL products for loading refrigerated marine tankers at the
import/export facility. The NGL Product Chiller will speed the loading of
tankers and increase export capability.
The Company utilizes a fleet of approximately 350 rail cars under short and
long-term leases used to deliver feedstocks to Mont Belvieu and transport NGL
products throughout the United States. The Company also has rail
loading/unloading facilities at Mont Belvieu, Texas, Breaux Bridge, Louisiana,
and Petal, Mississippi to serve its own and customers' rail shipments.
Competition
The consumption of NGL products in the United States can be separated among
four distinct markets. Petrochemical production provides the largest end-use
market, followed by motor gasoline production, residential and commercial
heating and agricultural uses. There are other hydrocarbon alternatives,
primarily refined petroleum products, which can be substituted for NGL products
in most end uses. In some uses, such as residential and commercial heating, a
substitution of other hydrocarbon products for NGL products would require a
significant expense or delay, but for other uses, such as the production of
motor gasoline, ethylene, industrial fuels and petrochemical feedstocks, such a
substitution can be readily made without significant delay or expense.
Because certain NGL products compete with other refined petroleum products
in the fuel and petrochemical feedstock markets, NGL product prices are set by
or in competition with refined petroleum products. Increased production and
importation of NGLs and NGL products in the United States may decrease NGL
product prices in relation to refined petroleum alternatives and thereby
increase consumption of NGL products as NGL products are substituted for other
more expensive refined petroleum products. Conversely, a decrease in the
production and importation of NGLs and NGL products could increase NGL product
prices in relation to refined petroleum product prices and thereby decrease
consumption of NGLs. However, because of the relationship of crude oil and
natural gas production to NGL production, the Company believes any imbalance in
the prices of NGLs and NGL products and alternative products would be temporary.
Although competition for NGL product fractionation services is based
primarily on the fractionation fee, the ability of a fractionator to obtain and
distribute product is a function of the existence of the necessary pipelines and
transportation facilities. A fractionator connected to an extensive
transportation and distribution system has direct access to a larger market than
its competitors. Overall, the Company believes it provides a broader range of
services than any of its competitors at Mont Belvieu. In addition, the Company
believes its joint venture relationships enable it to contract for the long-term
utilization of a significant amount of its fractionation facilities with major
producers and consumers of NGLs or NGL products.
The Company's Mont Belvieu fractionation facility competes for volumes of
mixed NGLs with three other fractionators at Mont Belvieu: a joint venture
between Dynegy and Amoco (205,000 barrels per day capacity); Gulf Coast
Fractionators, a joint venture of Conoco, Mitchell and Dynegy (110,000 barrels
per day capacity); and a joint venture between Koch and Union Pacific Resources
(110,000 barrels per day capacity). The Koch/Union Pacific Resources
fractionator is scheduled for expansion to a capacity of 200,000 barrels per day
in 1999. Mobil operates a fractionation facility (60,000 barrels per day
capacity) in Hull, Texas that is connected to Mont Belvieu by pipeline and
Phillips Petroleum operates a fractionation facility (70,000 barrels per day
capacity) in Sweeny, Texas that is connected to Mont Belvieu by pipeline. Mobil
and Phillips use their facilities primarily to process their own NGL production
but at certain times these facilities compete with the fractionators at Mont
Belvieu. The Company's fractionation facilities also compete on a more limited
basis with two fractionators in Conway, Kansas: Williams (107,000 barrels per
day capacity) and Koch (200,000 barrels per day capacity) and with a number of
decentralized, smaller fractionation facilities in Louisiana, the most
significant of which are Promix at Napoleonville (55,000 barrels per day
capacity), Texaco/Williams at Paradis (45,000 barrels per day capacity) and
TransCanada at Eunice and Riverside (45,000 barrels per day combined
18
<PAGE>
capacity). In recent years, the Conway market has experienced excess capacity
and prices for NGL products that are generally lower than prices at Mont
Belvieu, although prices in Conway tend to strengthen along with demand for
propane in winter months. Finally, a number of producers operate smaller-scale
fractionators at individual field processing facilities.
In the isomerization market, the Company competes primarily with Koch at
Conway, Kansas; Enron at Riverside, Louisiana; and Conoco at Wingate, New
Mexico. Enron and Valero also produce isobutane, primarily for internal
production of MTBE. Competitive factors affecting isomerization operations
include the price differential between normal butane and isobutane as well as
the fees charged for isomerization services, long-term contracts, the
availability of merchant capacity, the ability to produce a higher purity
isobutane product and storage and transportation support.
BEF competes with a number of MTBE producers, including a number of
refiners who produce MTBE for internal consumption in the manufacture of
reformulated motor gasoline. Competitive factors affecting MTBE production
include production costs, long-term contracts, the availability of merchant
capacity and federal and state environmental regulations relating to the content
of motor gasoline.
The Company competes with numerous producers of high purity propylene,
which include many of the major refiners on the Gulf Coast. The Company and
Ultramar Diamond Shamrock are the primary domestic commercial producers of high
purity propylene from refinery-sourced propane/propylene mix. High purity
propylene is also produced as a by-product from steam crackers used in ethylene
production.
Certain of the Company's competitors are major oil and natural gas
companies and other large integrated pipeline or energy companies that have
greater financial resources than the Company. The Company believes its
independence from the major producers of NGLs and petrochemical companies is
often an advantage in its dealings with its customers, but the Company's
continued success will depend upon its ability to maintain strong relationships
with the primary producers of NGLs and consumers of NGL products, particularly
in the form of long-term contracts and joint venture relationships.
Major Customers of the Company
Although the Company's revenues are derived from a wide customer base,
revenues from Montell, the largest single customer, accounted for approximately
13.8% of consolidated revenues in fiscal 1998. Montell owns a 45.4% undivided
interest in one of the propylene fractionation units and the related pipeline
system, and it leases such undivided interest in these facilities to the
Company. For a more complete discussion of major customers in the last three
fiscal years, see Note 7 of the Notes to the Consolidated Financial Statements.
Significant Agreement with EPCO
The Company has no employees. All management, administrative and operating
functions are performed by employees of EPCO. Operating costs and expenses
include charges for EPCO's employees who operate the Company's various
facilities. Such charges are based upon EPCO's actual salary costs and related
fringe benefits.
In connection with the Company's initial public offering ("IPO") on July
27, 1998, EPCO, the General Partner and the Company entered into the EPCO
Agreement pursuant to which (i) EPCO agreed to manage the business and affairs
of the Company and the Operating Partnership; (ii) EPCO agreed to employ the
operating personnel involved in the Company's business for which EPCO is
reimbursed by the Company at cost; (iii) the Company and the Operating
Partnership agreed to participate as named insureds in EPCO's current insurance
program, and costs are allocated among the parties on the basis of formulas set
forth in the agreement; (iv) EPCO agreed
19
<PAGE>
to grant an irrevocable, non-exclusive worldwide license to all of the
trademarks and trade names used in its business to the Company; (v) EPCO agreed
to indemnify the Company against any losses resulting from certain lawsuits; and
(vi) EPCO agreed to sublease all of the equipment which it holds pursuant to
operating leases relating to an isomerization unit, a deisobutanizer tower, two
cogeneration units and approximately 100 rail cars to the Company for $1 per
year and assigned its purchase options under such leases to the Company
(hereafter referred to as "Retained Leases"). Pursuant to the EPCO Agreement,
EPCO is reimbursed at cost for all expenses that it incurs in connection with
managing the business and affairs of the Company, except that EPCO is not
entitled to be reimbursed for any selling, general and administrative expenses.
In lieu of reimbursement for such selling, general and administrative expenses,
EPCO is entitled to receive an annual administrative services fee that initially
equals $12.0 million. The General Partner, with the approval and consent of the
Audit and Conflicts Committee of the Company, has the right to agree to
increases in such administrative services fee of up to 10% each year during the
10-year term of the EPCO Agreement and may agree to further increases in such
fee in connection with expansions of the Company's operations through the
construction of new facilities or the completion of acquisitions that require
additional management personnel.
Employees
At December 31, 1998, EPCO employed approximately 500 employees involved in
the management and operation of assets owned and operated by the Company; none
of whom were members of a union.
Regulation
Interstate Common Carrier Pipeline Regulation
The Company's Chunchula and Lake Charles/Bayport pipelines are interstate
common carrier oil pipelines subject to regulation by Federal Energy Regulatory
Commission ("FERC") under the October 1, 1977 version of the Interstate Commerce
Act ("ICA").
Standards for Terms of Service and Rates. As interstate common carriers,
the Chunchula and Lake Charles/Bayport pipelines provide service to any shipper
who requests transportation services, provided that the products tendered for
transportation satisfy the conditions and specifications contained in the
applicable tariff. The ICA requires the Company to maintain tariffs on file with
the FERC that set forth the rates the Company charges for providing
transportation services on the interstate common carrier pipelines as well as
the rules and regulations governing these services.
The ICA gives the FERC authority to regulate the rates the Company charges
for service on the interstate common carrier pipelines. The ICA requires, among
other things, that such rates be "just and reasonable" and nondiscriminatory.
The ICA permits interested persons to challenge proposed new or changed rates
and authorizes the FERC to suspend the effectiveness of such rates for a period
of up to seven months and to investigate such rates. If, upon completion of an
investigation, the FERC finds that the new or changed rate is unlawful, it is
authorized to require the carrier to refund the revenues in excess of the prior
tariff collected during the pendency of the investigation. The FERC may also
investigate, upon complaint or on its own motion, rates that are already in
effect and may order a carrier to change its rates prospectively. Upon an
appropriate showing, a shipper may obtain reparations for damages sustained for
a period of up to two years prior to the filing of a complaint.
On October 24, 1992, Congress passed the Energy Policy Act of 1992 ("Energy
Policy Act"). The Energy Policy Act deemed petroleum pipeline rates that were in
effect for the 365-day period ending on the date of enactment or that were in
effect on the 365th day preceding enactment and had not been subject to
complaint, protest or investigation during the 365-day period to be just and
reasonable under the ICA (i.e., "grandfathered"). The Energy Policy Act also
limited the
20
<PAGE>
circumstances under which a complaint can be made against such grandfathered
rates. In order to challenge grandfathered rates, a party would have to show
that it was previously contractually barred from challenging the rates or that
the economic circumstances or the nature of the service underlying the rate had
substantially changed or that the rate was unduly discriminatory or
preferential. These grandfathering provisions and the circumstances under which
they may be challenged have received only limited attention from the FERC,
causing a degree of uncertainty as to their application and scope.
The Energy Policy Act required the FERC to issue rules establishing a
simplified and generally applicable ratemaking methodology for petroleum
pipelines, and to streamline procedures in petroleum pipeline proceedings. The
FERC responded to this mandate by issuing Order No. 561, which, among other
things, adopted a new indexing rate methodology for petroleum pipelines. Under
the new regulations, which became effective January 1, 1995, petroleum pipelines
are able to change their rates within prescribed ceiling levels that are tied to
an inflation index. Rate increases made within the ceiling levels will be
subject to protest, but such protests must show that the portion of the rate
increase resulting from application of the index is substantially in excess of
the pipeline's increase in costs. If the indexing methodology results in a
reduced ceiling level that is lower than a pipeline's filed rate, Order No. 561
requires the pipeline to reduce its rate to comply with the lower ceiling. Under
Order No. 561, a pipeline must as a general rule utilize the indexing
methodology to change its rates. The FERC, however, retained cost-of-service
ratemaking, market-based rates, and settlement as alternatives to the indexing
approach, which alternatives may be used in certain specified circumstances.
The Company believes the rates it charges for transportation service on its
interstate pipelines have been grandfathered under the Energy Policy Act and are
thus considered just and reasonable under the ICA. As discussed above, however,
because of the uncertainty related to the application of the Energy Policy Act's
grandfathering provisions to the Company's rates as well as the novelty and
uncertainty related to the FERC's new indexing methodology, the Company is
unable to predict what rates it will be allowed to charge in the future for
service on its interstate common carrier pipelines. Furthermore, because rates
charged for transportation must be competitive with those charged by other
transporters, the rates set forth in the Company's tariffs will be determined
based on competitive factors in addition to regulatory considerations.
Allowance for Income Taxes in Cost of Service. In a 1995 decision regarding
Lakehead Pipe Line Company ("Lakehead"), FERC ruled that an interstate pipeline
owned by a limited partnership could not include in its cost of service an
allowance for income taxes with respect to income attributable to limited
partnership interests held by individuals. On request in 1996, FERC clarified
that, in order to avoid any effect of a "curative allocation" of income from
individual partners to the corporate partner, an allowance for income taxes paid
by corporate partners must be based on income as reflected on the pipeline's
books for earning and distribution rather than as reported for income tax
purposes. Subsequent appeals of these rulings were resolved by a 1997 settlement
among the parties and were never adjudicated. The effect of this policy on the
Company is uncertain. The Company's rates are set using the indexing method and
have been grandfathered. It is possible that a party might challenge the
Company's grandfathered rates on the basis that the creation of the Company
constituted a substantial change in circumstances, potentially lifting the
grandfathering protection. Alternatively, a party might contend that, in light
of the Lakehead ruling and creation of the Company, the Company's rates are not
just and reasonable. While it is not possible to predict the likelihood that
such challenges would succeed at FERC, if such challenges were to be raised and
succeed, application of the Lakehead ruling would reduce the Company's
permissible income tax allowance in any cost of service, and rates, to the
extent income is attributable to partnership interests held by individual
partners rather than corporations.
Intrastate Common Carrier Regulation
The Company's Houston ship channel pipeline is an intrastate private
carrier not subject to rate regulation. The Sorrento pipeline is an intrastate
common carrier pipeline that transports
21
<PAGE>
NGL products and is subject to various Louisiana state laws and regulations that
affect the terms of service and rates for such services.
Other State and Local Regulation
The Company's activities are subject to various state and local laws and
regulations, as well as orders of regulatory bodies pursuant thereto, governing
a wide variety of matters, including marketing, production, pricing, community
right-to-know, protection of the environment, safety and other matters.
Cogeneration
The Company cogenerates electricity for internal consumption and heat for
a process-related hot oil system at Mont Belvieu. If this electricity were sold
to third parties, the Company's Mont Belvieu cogeneration facilities could be
certified as qualifying facilities under the Public Utility Regulatory Policy
Act of 1978 ("PURPA"). Subject to compliance with certain conditions under
PURPA, this certification would exempt the Company from most of the regulations
applicable to electric utilities under the Federal Power Act and the Public
Utility Holding Company Act, as well as from most state laws and regulations
concerning the rates, finances, or organization of electric utilities. However,
since such electric power is consumed entirely by the Company's plant
facilities, the Company's cogeneration activities are not subject to public
utility regulation under federal or Texas law.
Environmental Matters
General. The operations of the Company are subject to federal, state and
local laws and regulations relating to release of pollutants into the
environment or otherwise relating to protection of the environment. The Company
believes its operations and facilities are in general compliance with applicable
environmental regulations.
However, risks of process upsets, accidental releases or spills are
associated with the Company's operations and there can be no assurance that
significant costs and liabilities will not be incurred, including those relating
to claims for damage to property and persons.
The clear trend in environmental regulation is to place more restrictions
and limitations on activities that may affect the environment, such as emissions
of pollutants, generation and disposal of wastes and use and handling of
chemical substances. The usual remedy for failure to comply with these laws and
regulations is the assessment of administrative, civil and, in some instances,
criminal penalties or, in rare circumstances, injunctions. The Company believes
the cost of compliance with environmental laws and regulations will not have a
material adverse effect on the results of operations or financial position of
the Company. However, it is possible that the costs of compliance with
environmental laws and regulations will continue to increase, and thus there can
be no assurance as to the amount or timing of future expenditures for
environmental compliance or remediation, and actual future expenditures may be
different from the amounts currently anticipated. In the event of future
increases in costs, the Company may be unable to pass on those increases to its
customers. The Company will attempt to anticipate future regulatory
requirements that might be imposed and plan accordingly in order to remain in
compliance with changing environmental laws and regulations and to minimize the
costs of such compliance.
Solid Waste. The Company currently owns or leases, and has in the past
owned or leased, properties that have been used over the years for NGL
processing, treatment, transportation and storage and for oil and natural gas
exploration and production activities. Solid waste disposal practices within the
NGL industry and other oil and natural gas related industries have improved over
the years with the passage and implementation of various environmental laws and
regulations. Nevertheless, a possibility exists that hydrocarbons and other
solid wastes may have been disposed of on or under various properties owned by
or leased by the Company during the operating history
22
<PAGE>
of those facilities. In addition, a small number of these properties may have
been operated by third parties over whom the Company had no control as to such
entities' handling of hydrocarbons or other wastes and the manner in which such
substances may have been disposed of or released. State and federal laws
applicable to oil and natural gas wastes and properties have gradually become
more strict and, pursuant to such laws and regulations, the Company could be
required to remove or remediate previously disposed wastes or property
contamination including groundwater contamination. The Company does not believe
that there presently exists significant surface and subsurface contamination of
the Company properties by hydrocarbons or other solid wastes.
The Company generates both hazardous and nonhazardous solid wastes which
are subject to requirements of the federal Resource Conservation and Recovery
Act ("RCRA") and comparable state statutes. From time to time, the Environmental
Protection Agency ("EPA") has considered making changes in nonhazardous waste
standards that would result in stricter disposal requirements for such wastes.
Furthermore, it is possible that some wastes generated by the Company that are
currently classified as nonhazardous may in the future be designated as
"hazardous wastes," resulting in the wastes being subject to more rigorous and
costly disposal requirements. Such changes in the regulations may result in
additional capital expenditures or operating expenses by the Company.
Superfund. The Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), also known as the "Superfund" law, and similar state
laws, impose liability without regard to fault or the legality of the original
conduct, on certain classes of persons, including the owner or operator of a
site and companies that disposed or arranged for the disposal of the hazardous
substances found at the site. CERCLA also authorizes the EPA and, in some cases,
third parties to take actions in response to threats to the public health or the
environment and to seek to recover from the responsible classes of persons the
costs they incur. Although "petroleum" is excluded from CERCLA's definition of a
"hazardous substance," in the course of its ordinary operations the Company will
generate wastes that may fall within the definition of a "hazardous substance."
The Company may be responsible under CERCLA for all or part of the costs
required to clean up sites at which such wastes have been disposed. The Company
has not received any notification that it may be potentially responsible for
cleanup costs under CERCLA.
Clean Air Act--General. The operations of the Company are subject to the
Clean Air Act and comparable state statutes. Amendments to the Clean Air Act
were adopted in 1990 and contain provisions that may result in the imposition of
certain pollution control requirements with respect to air emissions from the
operations of the pipelines and the processing and storage facilities. For
example, the Mont Belvieu processing and storage facility is located in the
Houston-Galveston ozone non-attainment area, which is categorized as a "severe"
area and, therefore, is subject to more restrictive regulations for the issuance
of air permits for new or modified facilities. The Houston-Galveston area is
among nine areas in the country in this "severe" category. One of the other
consequences of this non-attainment status is the potential imposition of lower
limits on the emissions of certain pollutants, particularly oxides of nitrogen
which are produced through combustion, as in the gas turbines at the Mont
Belvieu processing facility. Regulations imposing these new requirements on
existing facilities will not be promulgated until the end of 2000, and,
therefore, it is not possible at this time to assess the impact these
requirements may have on the Company's operations. Failure to comply with these
air statutes or the implementing regulations may lead to the assessment of
administrative, civil or criminal penalties, and/or result in the limitation or
cessation of construction or operation of certain air emission sources. As part
of the regular overall evaluation of its current operations, the Company is
updating certain of its operating permits. The Company believes its operations,
including its processing facilities, pipelines and storage facilities, are in
substantial compliance with applicable air requirements.
Clean Air Act--Fuels. To implement the Clean Air Act Amendments of 1990,
the EPA, in November 1992, began requiring the use of motor gasoline containing
2.7% oxygen by weight during winter months in carbon monoxide non-attainment
areas largely in the western half of the United States (approximately 25
metropolitan areas). Since January 1995, the EPA has required
23
<PAGE>
the use of motor gasoline containing 2.0% oxygen by weight throughout the year
in extreme and severe ozone non-attainment areas (nine metropolitan areas). The
production of MTBE is driven by compliance with the requirements of these
oxygenated fuels programs. Any changes to these programs that enable localities
to opt out of these programs, lessen the requirements for oxygenates or favor
the use of non-isobutane based oxygenated fuels would reduce demand for the
Company's MTBE and could have a material adverse effect on the Company's results
of operations. Several public advocacy and protest groups active in California
and other states have asserted that MTBE contaminates water supplies, causes
health problems and has not been as beneficial as originally contemplated in
reducing air pollution. In California, state authorities negotiated an agreement
with the EPA to implement a program requiring oxygenated motor gasoline at 2.0%
for the whole state, rather than 2.7% only in selected areas. In addition,
legislation to amend the Clean Air Act has been introduced in Congress to exempt
California from the federal oxygenate requirements for reformulated motor
gasoline. If this legislation is enacted, refiners could eliminate or reduce the
amount of MTBE from motor gasoline sold in California as long as certain other
minimum standards are met. This federal legislation is opposed by both the
federal Department of Energy and the EPA. Many of the public advocacy and
protest groups that have been campaigning for legislation to exempt California
from the federal oxygenate requirement are also supporting a nationwide ban on
the use of MTBE and other oxygenates, but no legislation to implement a
nationwide ban has been introduced in Congress to date.
Clean Water Act. The Federal Water Pollution Control Act, also known as
the Clean Water Act, and similar state laws require containment of potential
discharges of contaminants into federal and state waters. Regulations
promulgated pursuant to these laws require that entities such as the Company
that discharge into federal and state waters obtain National Pollutant Discharge
Elimination System ("NPDES") and/or state permits authorizing these discharges.
The Clean Water Act and analogous state laws provide penalties for releases of
unauthorized contaminants into the water and impose substantial liability for
the costs of removing spills from such waters. In addition, the Clean Water Act
and analogous state laws require that individual permits or coverage under
general permits be obtained by covered facilities for discharges of stormwater
runoff. The Company believes it will be able to obtain, or be included under,
these Clean Water Act permits and that compliance with the conditions of such
permits will not have a material effect on the Company.
Underground Storage Requirements. The Company currently owns and operates
underground storage caverns that have been created in naturally occurring salt
domes in Texas, Louisiana and Mississippi. These storage caverns are used to
store NGLs, NGL products, propane/propylene mix and propylene. Surface brine
pits and brine disposal wells are used in the operation of the storage caverns.
All of these facilities are subject to strict environmental regulation by state
authorities under the Texas Natural Resources Code and similar statutes in
Louisiana and Mississippi. Regulations implemented under such statutes address
the operation, maintenance and/or abandonment of such underground storage
facilities, pits and disposal wells, and require that permits be obtained.
Failure to comply with the governing statutes or the implementing regulations
may lead to the assessment of administrative, civil or criminal penalties. The
Company believes its salt dome storage operations, including the caverns, brine
pits and brine disposal wells, are in substantial compliance with applicable
statutes.
Safety Regulation
The Company's pipelines are subject to regulation by the U.S. Department
of Transportation under the Hazardous Liquid Pipeline Safety Act, as amended
("HLPSA"), relating to the design, installation, testing, construction,
operation, replacement and management of pipeline facilities. The HLPSA covers
crude oil, carbon dioxide, NGL and petroleum products pipelines and requires any
entity which owns or operates pipeline facilities to comply with the regulations
under the HLPSA, to permit access to and allow copying of records and to make
certain reports and provide information as required by the Secretary of
Transportation. The Company believes its pipeline operations are in substantial
compliance with applicable HLPSA requirements; however,
24
<PAGE>
due to the possibility of new or amended laws and regulations or
reinterpretation of existing laws and regulations, there can be no assurance
that future compliance with the HLPSA will not have a material adverse effect on
the Company's results of operations or financial position.
The workplaces associated with the processing and storage facilities and
the pipelines operated by the Company are also subject to the requirements of
the federal Occupational Safety and Health Act ("OSHA") and comparable state
statutes. The Company believes it has operated in substantial compliance with
OSHA requirements, including general industry standards, record keeping
requirements and monitoring of occupational exposure to regulated substances.
In general, the Company expects expenditures will increase in the future
to comply with likely higher industry and regulatory safety standards such as
those described above. Such expenditures cannot be accurately estimated at this
time, although the Company does not expect that such expenditures will have a
material adverse effect on the Company.
Title to Properties
Real property held by the Company falls into two basic categories: (a)
parcels that it owns in fee, such as the land at the Mont Belvieu complex and
Petal fractionation and storage facility, and (b) parcels in which its interest
derives from leases, easements, rights-of-way, permits or licenses from
landowners or governmental authorities permitting the use of such land for
Company operations. The fee sites upon which the major facilities are located
have been owned by the Company or its predecessors in title for many years
without any material challenge known to the Company relating to title to the
land upon which the assets are located, and the Company believes it has
satisfactory title to such fee sites. The Company has no knowledge of any
challenge to the underlying fee title of any material lease, easement, right-of-
way or license held by it or to its title to any material lease, easement,
right-of-way, permit or lease, and the Company believes it has satisfactory
title to all of its material leases, easements, rights-of-way and licenses.
Item 3. Legal Proceedings.
EPCO has indemnified the Company against any litigation arising from
events or actions prior to its formation. The Company is sometimes named as a
defendant in litigation relating to its normal business operations. Although the
Company insures itself against various business risks, to the extent management
believes it is prudent, there is no assurance that the nature and amount of such
insurance will be adequate, in every case, to indemnify the Company against
liabilities arising from future legal proceedings as a result of its ordinary
business activity. Management is aware of no significant litigation, pending or
threatened, that would have a significant adverse effect on the Company's
financial position or results of operations.
Item 4. Submission of Matters to a Vote of Security Holders.
There were no matters submitted to a vote of security holders during 1998.
25
<PAGE>
PART II
Item 5. Market for the Registrant's Common Equity and Related Unitholder
Matters.
The following table sets forth the high and low sale prices per Common
Unit (as reported under the symbol "EPD" on the New York Stock Exchange), the
amount of cash distributions paid per Common Unit and the declaration and
payment dates related to such cash distributions. The Common Units began trading
on July 28, 1998.
<TABLE>
<CAPTION>
Cash Distributions
------------------
Price Range Distribution Declaration Payment
High Low Amount Date Date
---- --- ------ ---- ----
<S> <C> <C> <C> <C> <C>
1998
- ----
Third Quarter $22.063 $14.625 - - -
Fourth Quarter $18.375 $13.750 $0.32 October 30,1998 November 12, 1998
1999
- ----
First Quarter $18.500 $14.938 $0.45 January 29, 1999 February 11, 1999
(through March 1, 1999)
</TABLE>
The Company pays a minimum quarterly distribution of $.45 per Common Unit.
Although the payment of the minimum quarterly distribution is not guaranteed,
the Company currently expects that it will continue to pay comparable cash
distributions in the future. The $.32 cash distribution made during the fourth
quarter of 1998 was based upon the minimum quarterly distribution of $0.45 per
Unit adjusted to take into account the 65-day period of the third quarter during
which the Company was a public entity.
As of March 1, 1999, there were approximately 120 Unitholders of record of
the Company's Common Units.
26
<PAGE>
Item 6. Selected Financial Data.
The following table sets forth for the periods and at the dates indicated,
selected historical financial data for the Company. The selected historical
financial data (except for EBITDA of unconsolidated affiliates) have been
derived from the Company's audited financial statements for the periods
indicated. The selected historical income statement data for each of the three
years in the period ended December 31, 1998 and the selected balance sheet data
as of December 31, 1998 and 1997 should be read in conjunction with the audited
financial statements for such periods included elsewhere in this report. EBITDA
of unconsolidated affiliates has been derived from the audited financial
statements of such entities for the periods indicated. See also "Management's
Discussion and Analysis of Financial Condition and Results of Operation." The
dollar amounts in the table below, except per Unit data, are in thousands.
<TABLE>
<CAPTION>
For Year Ended December 31,
1994 1995 1996 1997 1998
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Revenues $586,609 $790,080 $999,506 $1,020,281 $738,902
Operating costs and expenses (1) 534,783 727,337 907,524 938,237 686,160
----------------------------------------------------------
Operating margin 51,826 62,743 91,982 82,044 52,742
Selling, general and administrative expenses (1,2) 16,972 21,120 23,070 21,891 18,216
----------------------------------------------------------
Operating income 34,854 41,623 68,912 60,153 34,526
Interest expense (25,411) (27,567) (26,310) (25,717) (14,696)
Interest income 2,477 554 2,705 1,934 1,581
Equity in income of unconsolidated affiliates 7,257 12,274 15,756 15,682 15,671
Gain (loss) on sale of assets 4,271 7,948 - (155) 276
Other income (expense), net 45 305 364 793 (3)
----------------------------------------------------------
Income before extraordinary charge and
minority interest 23,493 35,137 61,427 52,690 37,355
Extraordinary item - early
extinguishment of debt - - - - (27,176)
----------------------------------------------------------
Income before minority interest 23,493 35,137 61,427 52,690 10,179
Minority interest (235) (351) (614) (527) (102)
----------------------------------------------------------
Net income $ 23,258 $ 34,786 $ 60,813 $ 52,163 $ 10,077
==========================================================
Net income per Unit (3) $ 0.42 $ 0.63 $ 1.10 $ 0.94 $ 0.17
Dividends declared per Unit $ 0.32
Balance Sheet Data (at period end):
Total assets $573,348 $610,931 $711,151 $ 697,713 $741,037
Long-term debt 268,585 281,656 255,617 230,237 90,000
Consolidated equity / Partners' equity 189,366 198,815 266,021 311,885 562,536
Other Financial Data:
Cash flows from operating activities $ 49,997 $ 12,212 $ 91,431 $ 57,795 $(20,294)
Cash flows from investing activities (36,944) (9,233) (57,725) (30,982) (50,695)
Cash flows from financing activities (21,973) 11,995 (24,930) (26,551) 61,238
EBITDA (4) 55,430 65,406 87,109 79,882 55,472
EBITDA of unconsolidated affiliates (5) 7,198 18,520 25,012 24,372 23,912
</TABLE>
Notes
- -----
(1) Certain 1994 through 1997 amounts have been reclassified to conform to the
1998 presentation
(2) 1998 expenses are lower than 1997 amounts due to the adoption of the EPCO
agreement
(3) Net income per Unit is computed by dividing the limited partners' 99%
interest in Net income by the weighted average of the number of Units
outstanding. The weighted average number of Units outstanding from 1994 through
1997 was 54.963 million. For 1998, the weighted average number of Units
outstanding was 60.124 million.
(4) EBITDA is defined as net income plus depreciation and amortization and
interest expense less equity in income of unconsolidated affiliates. EBITDA
should not be considered as an alternative to net income, operating income, cash
flow from operations or any other measure of financial performance presented in
accordance with generally accepted accounting principals. EBITDA is not intended
to represent cash flow and does not represent the measure of cash available for
distribution, but provides additional information for evaluating the Company's
ability to make the minimum quarterly distribution. Management uses EBITDA to
assess the viability of projects and to determine overall rate of returns on
alternative investment opportunities. Because EBITDA excludes some, but not all,
items that affect net income and this
(Notes continued on following page)
27
<PAGE>
measure may vary among companies, the EBITDA data presented above may not be
comparable to similarly titled measures of other companies. EBITDA for 1998
excludes the extraordinary charge of $27.176 million related to the early
extinguishment of debt.
(5) Represents the Company's pro rata share of net income plus depreciation and
amortization and interest expense of the unconsolidated affiliates. Since the
purchase of the Company's pro rata share of bank debt of BEF and MBA in July
1998, EBITDA of unconsolidated affiliates has closely approximated the aggregate
cash that the Company will receive from its investment in BEF and MBA.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operation.
Industry Environment
Because certain NGL products compete with other refined petroleum
products in the fuel and petrochemical feedstock markets, NGL product prices are
set by or in competition with refined petroleum products. Increased production
and importation of NGLs and NGL products in the United States may decrease NGL
product prices in relation to refined petroleum alternatives and thereby
increase consumption of NGL products as NGL products are substituted for other
more expensive refined petroleum products. Conversely, a decrease in the
production and importation of NGLs and NGL products could increase NGL product
prices in relation to refined petroleum product prices and thereby decrease
consumption of NGLs. However, because of the relationship of crude oil and
natural gas production to NGL production, the Company believes any imbalance in
the prices of NGLs and NGL products and alternative products would be temporary.
Historically, when the price of crude oil is a multiple of ten or more
to the price of natural gas (i.e., crude oil $20 per barrel and natural gas $2
per thousand cubic feet ("MCF")), NGL pricing has been strong due to increased
use in manufacturing petrochemicals. In 1998, the industry experienced an
annualized multiple of approximately six (i.e., crude oil $12 per barrel and
natural gas $2 per MCF), which caused petrochemical manufacturing demand to
change from reliance on NGLs to a preference for crude oil derivatives. This
change resulted in the lowering of both the production and pricing of NGLs. In
the NGL industry, revenues and cost of goods sold can fluctuate significantly up
or down based on current NGL prices. However, operating margins will generally
remain constant except for the effect of inventory price adjustments or
increased operating expenses.
The following discussion of the historical financial condition and
results of operations of the Company should be read in conjunction with the
Company's historical consolidated financial statements and the notes thereto
included elsewhere in this report.
NGL Fractionation
The profitability of this business unit depends on the volume of mixed
NGLs that the Company processes for its toll customers and the level of toll
processing fees charged to its customers. The most significant variable cost of
fractionation is the cost of energy required to operate the units and to heat
the mixed NGLs to effect separation of the NGL products. The Company is able to
reduce its energy costs by capturing excess heat and re-using it in its
operations. Additionally, the Company's NGL fractionation processing contracts
typically contain escalation provisions for cost increases resulting from
increased variable costs, including energy costs. The Company's interest in the
operations of its NGL fractionation facilities at Mont Belvieu consists of a
directly-owned 12.5% undivided interest and a 49.0% economic interest in MBA,
which in turn owns a 50.0% undivided interest in such facilities. The Company's
12.5% interest is recorded as part of revenues and expenses, and its effective
24.5% economic interest is recorded as an equity investment in an unconsolidated
subsidiary.
28
<PAGE>
Isomerization
The profitability of this business unit depends on the volume of normal
butane that the Company isomerizes (i.e., converts) into isobutane for its toll
processing customers, the level of toll processing fees charged to its
customers, and the margins generated from selling isobutane to merchant
customers. The Company's toll processing customers pay the Company a fee for
isomerizing their normal butane into isobutane. In addition, the Company sells
isobutane that it obtains by isomerizing normal butane into isobutane,
fractionating mixed butane into isobutane and normal butane, or purchasing
isobutane in the spot market. The Company determines the optimal sources for
isobutane to meet sales obligations based on current and expected market prices
for isobutane and normal butane, volumes of mixed butane held in inventory, and
estimated costs of isomerization and mixed butane fractionation.
The Company purchases most of its imported mixed butanes between the
months of February and October. During these months, the Company is able to
purchase imported mixed butanes at prices that are often at a discount to posted
market prices. Because of its storage capacity, the Company is able to store
these imports until the summer months when the spread between isobutane and
normal butane typically widens or until winter months when the prices of
isobutane and normal butane typically rise. As a result, inventory investment
is generally at its highest level at the end of the third quarter of the year.
Should this spread not materialize, or in the event absolute prices decline,
margins generated from selling isobutane to merchant customers may be negatively
affected.
Propylene Fractionation
The profitability of this business unit depends on the volumes of refinery-
sourced propane/propylene mix that the Company processes for its toll customers,
the level of toll processing fees charged to its customers and the margins
associated with buying refinery-sourced propane/propylene mix and selling high
purity propylene to meet sales contracts with non-tolling customers.
Pipelines
The Company operates both interstate and intrastate NGL product and
propylene pipelines. The Company's interstate pipelines are common carriers and
must provide service to any shipper who requests transportation services at
rates regulated by the FERC. One of the Company's intrastate pipelines is a
common carrier regulated by the State of Louisiana. The profitability of this
business unit is primarily dependent on pipeline throughput volumes.
Unconsolidated Affiliates
At December 31, 1998, the Company's unconsolidated affiliates were BEF,
MBA, EPIK, BRF, Tri-States and Wilprise. BEF owns the MTBE production facility
operated by the Company at its Mont Belvieu complex. MBA owns a 50% interest in
a NGL fractionation facility at the Company's Mont Belvieu complex. EPIK owns a
refrigerated NGL marine terminal loading facility located on the Houston ship
channel. An expansion of EPIK's NGL marine terminal loading facility is underway
and is scheduled for completion in the fourth quarter of 1999. BRF owns a NGL
fractionation facility which is under construction in Louisiana. This facility
is expected to begin operations in the second quarter of 1999. Tri-States owns a
NGL pipeline which is under construction in Louisiana, Mississippi, and Alabama.
Wilprise owns a NGL pipeline which is under construction in Louisiana.
Management anticipates that both the Tri-States and Wilprise pipelines will be
operational in the second quarter of 1999.
29
<PAGE>
Prepayment Penalties on Extinguishment of Debt
The Company incurred a $27.2 million extraordinary loss during the third
quarter of 1998 in connection with the early extinguishment of debt assumed from
EPCO in connection with the IPO. The extraordinary loss was equal to remaining
unamortized debt origination costs associated with such debt and make-whole
premiums payable in connection with the repayment of such debt.
Results of Operations of the Company
The Company's operating margins by business unit (in thousands) over the
past three years were as follows:
Year Ended December 31,
1996 1997 1998
---------------------------------
Operating Margin:
NGL Fractionation $ 1,982 $ 2,801 $ 3,743
Isomerization 51,068 38,286 17,540
Propylene Fractionation 18,260 18,996 11,275
Pipeline 11,270 13,520 14,121
Storage and Other Plants 9,402 8,441 6,063
---------------------------------
Total $91,982 $82,044 $52,742
=================================
The Company's plant production (in thousands of barrels per day) over the
past three years was as follows:
Year Ended December 31,
1996 1997 1998
---------------------------------
Plant Production Data:
NGL Fractionation 166 189 191
Isomerization 71 67 67
MTBE 13 14 14
Propylene Fractionation 16 26 26
The Company's equity in income of unconsolidated affiliates (in thousands)
over the past three years was as follows:
Year Ended December 31,
1996 1997 1998
---------------------------------
Equity in income of unconsolidated affiliates:
BEF $ 9,752 $ 9,305 $ 9,801
MBA 6,004 6,377 5,213
EPIK - - 748
BRF - - (91)
---------------------------------
Total $15,756 $15,682 $15,671
================================
Year Ended December 31, 1998 Compared with Year Ended December 31, 1997
Revenues; Costs and Expenses
The Company's revenues decreased by 27.6% to $738.9 million in 1998
compared to $1,020.3 million in 1997. The Company's costs and operating expenses
decreased by 26.9% to $686.2 million in 1998 compared to $938.2 million in 1997.
Both revenues and cost of goods sold decreased dramatically from 1997 to 1998
due to sharp declines in average NGL prices during most of 1998. For example,
isobutane prices decreased from an average of 46.9 cents per gallon in 1997 to
32.1 cents per gallon in 1998. Operating margin decreased by 35.7% to $52.7
million in 1998 from $82.0 million in 1997. The reduced operating margin in 1998
is mainly due to the effect of declining NGL prices on inventory values and
merchant activities during 1998.
NGL Fractionation. The Company's operating margin for NGL fractionation
increased by 33.6% to $3.7 million in 1998 from $2.8 million in 1997. Excluding
the positive effect of $1.3
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million in overhead expenses and support facility cost reimbursements from joint
venture partners for 1998, the Company's NGL fractionation operating margin
decreased 14.3% to $2.4 million from $2.8 million in 1997. The operating margin
for NGL fractionation declined by $1.9 million in 1998 due to lower toll
processing fees. On average, these fees were 2.3 cents per gallon in 1997 versus
2.1 cents per gallon in 1998. The decline was partially offset by lower
operating expenses. Average daily fractionation volumes increased from 189,323
barrels per day in 1997 to 191,176 barrels per day in 1998, primarily as a
result of increased volumes from joint owners' new gas processing plants which
began operations during 1998.
Isomerization. The Company's operating margin for isomerization decreased
by 54.2% to $17.6 million in 1998 from $38.3 million in 1997. This was a direct
result of inventory write-downs, loss of marketing profits due to lower butane
price spreads, and the decline of isomerization revenues on merchant activities.
The difference between the average prices of isobutane and normal butane
decreased from 3.3 cents per gallon for 1997 to 1.1 cents per gallon for 1998 as
a result of the preference for crude-oil-derivative petrochemical feedstocks as
described above.
Propylene Fractionation. The Company's operating margin for propylene
fractionation decreased by 40.6% to $11.3 million in 1998 from $19.0 million in
1997. The decrease in operating margin was a direct result of continued falling
prices of high purity and refinery grade propylene, reduced production volumes
and write-downs of feedstock inventory. Production volumes decreased from 26,456
barrels per day in 1997 to 25,625 barrels per day in 1998.
Pipeline. The Company's operating margin for pipeline operations increased
by 4.4% to $14.1 million in 1998 from $13.5 million in 1997, reflecting a 10.0%
increase in throughput volume due primarily to increased butane imports.
Selling, General and Administrative Expenses
Selling, general and administrative expenses decreased by $3.7 million to
$18.2 million in 1998 from $21.9 million in 1997. This decrease was primarily
due to the adoption of the EPCO Agreement in July 1998 in conjunction with the
IPO which fixed reimbursable selling, general, and administrative expenses at
$1.0 million per month.
Interest Expense
Interest expense was $14.7 million in 1998 and $25.7 million in 1997. The
$11.0 million decline was due to a decrease in the average debt outstanding
during the first seven months of 1998 as compared to the same period of 1997,
and the prepayment of debt in conjunction with the IPO in July 1998.
Equity Income of Unconsolidated Affiliates
Equity income of unconsolidated affiliates remained constant at $15.7
million in 1998 and 1997. Equity income in BEF increased by 5.4% to $9.8 million
in 1998 from $9.3 million in 1997 due primarily to lower interest costs. Equity
income in MBA decreased by 18.7% to $5.2 million in 1998 from $6.4 million in
1997 due to lower average NGL fractionation processing fees. Among the Company's
new projects, equity income in EPIK for 1998 was $0.8 million.
Year Ended December 31, 1997 Compared with Year Ended December 31, 1996
Revenues; Costs and Expenses
The Company's revenues increased by 2.1% to $1,020.3 million in 1997
compared to $999.5 million in 1996. The Company's costs and operating expenses
increased by 3.4% to $938.2
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million in 1997 compared to $907.5 million in 1996. Operating margin decreased
by 10.8% to $82.0 million in 1997 from $92.0 million in 1996.
NGL Fractionation. The Company's operating margin for NGL fractionation
increased by 41.3% to $2.8 million in 1997 from $2.0 million in 1996. The
increase was due primarily to the phase-in of a 45,000 barrel per day expansion
in the capacity of the NGL fractionation facilities at Mont Belvieu resulting in
increased NGL fractionation volumes in the second half of 1997, principally from
the joint owners of the facility, and increases in fractionation fees as a
result of higher natural gas and electricity costs that resulted in contractual
escalations in pricing formulas.
Isomerization. The Company's operating margin for isomerization decreased
by 25.0% to $38.3 million in 1997 from $51.1 million in 1996. The Company's
margins were negatively impacted by decreases in marketing margins which
declined as a result of lower isobutane prices after the first quarter of 1997
and a lower average spread between isobutane and normal butane prices. Isobutane
prices were unusually high in the second half of 1996 and the first quarter of
1997. In addition, isomerization processing margins decreased due to the loss of
a processing contract from a significant customer and lower utilization of the
deisobutanizer units as a result of lower import volume of mixed butanes.
Propylene Fractionation. The Company's operating margin for propylene
fractionation increased by 4.0% to $19.0 million in 1997 from $18.3 million in
1996. Propylene fractionation operating margins were positively affected by an
increase in volumes due to the start up of the Company's second propylene
fractionation unit in April 1997. This increase in volume was largely offset by
price decreases for high purity propylene in the fourth quarter of 1997, which
reflected weaker prices for polypropylene, compared to price increases for high
purity propylene in late 1996. The Company uses an average cost method of
accounting for its refinery-sourced propane/propylene mix feedstock costs.
Accordingly, the Company's feedstock costs generally increase or decrease at a
slower rate than high purity propylene market prices.
Pipeline. The Company's operating margin for pipeline operations increased
by 20.0% to $13.5 million in 1997 from $11.3 million in 1996, reflecting an
11.5% increase in throughput volume.
Selling, General and Administrative Expenses
Selling, general and administrative expenses decreased by $1.2 million to
$21.9 million in 1997 from $23.1 million in 1996. This decrease was primarily
due to the recognition of compensation expense in 1996 related to employee stock
appreciation rights ("SAR"). SAR expense declined to $1.1 million in 1997
compared to $2.1 million in 1996. EPCO retained the liability for all
outstanding SARs following the IPO.
Interest Expense
Interest expense was $25.7 million in 1997 and $26.3 million in 1996. The
$0.6 million decrease was due to a decrease in the average debt outstanding to
$243.8 million in 1997 from $268.4 million in 1996.
Equity Income of Unconsolidated Affiliates
Equity income of unconsolidated affiliates includes amounts from BEF and
MBA. Earnings attributable to BEF were $9.3 million in 1997 and $9.8 million in
1996. Earnings attributable to MBA were $6.4 million in 1997 and $6.0 million in
1996, reflecting increased NGL fractionation volumes in the second half of 1997.
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Liquidity and Capital Resources
General
The Company's primary cash requirements, in addition to normal operating
expenses, are debt service, maintenance capital expenditures, expansion capital
expenditures, and quarterly distributions to the partners. The Company expects
to fund future cash distributions and maintenance capital expenditures with cash
flows from operating activities. Expansion capital expenditures for current
projects are expected to be funded with working capital and borrowings under the
revolving bank credit facility described below while capital expenditures for
future expansion activities are expected to be funded with cash flows from
operating activities and borrowings under the revolving bank credit facility.
Cash flows from operating activities were a $20.3 million outflow for 1998
as compared to $57.8 million inflow for the comparable period of 1997. Cash
flows from operating activities primarily reflect the effects of net income,
depreciation and amortization, extraordinary items, equity income of
unconsolidated affiliates and changes in working capital. Depreciation and
amortization increased by $1.5 million in 1998 as a result of additional capital
expenditures. The net effect of changes in operating accounts from year to year
is generally the result of timing of NGL sales and purchases near the end of the
period.
Cash outflows from investing activities were $50.7 million in 1998 and
$31.0 million for the comparable period of 1997. Cash outflows included capital
expenditures which aggregated $8.4 million (including approximately $7.7 million
of maintenance capital expenditures) for 1998 and $33.6 million for 1997.
Investing cash outflows also included $26.8 million in contributions to
unconsolidated affiliates that were primarily used for construction projects
during 1998. The Company purchased $33.7 million in notes receivable from BEF
and MBA which is included as a cash outflow from investing activities and
received $7.2 million in payments on these notes included as a cash inflow from
investing activities during 1998.
Cash flows from financing activities were a $61.2 million inflow in 1998
and a $26.6 million outflow for the comparable period of 1997. Cash flows from
financing activities during 1998 were affected primarily by repayments of long-
term debt, borrowings under long-term debt agreements, costs for early
extinguishment of debt, distributions to the Unitholders, and net proceeds from
the sale of partnership Units in connection with the IPO.
Future Capital Expenditures
The Company currently estimates that its share of remaining expenditures
for significant capital projects in fiscal 1999 will be approximately $29.1
million. These expenditures will be for the construction of new joint venture
projects in Louisiana which will be recorded as additional investments in
unconsolidated subsidiaries. The Company expects to finance these expenditures
out of operating cash flows, the proceeds from its IPO and borrowings under its
bank credit facility. As of December 31, 1998, the Company had $11.1 million in
outstanding purchase commitments associated with its capital projects.
Distributions from Unconsolidated Affiliates; Loan Participations
Distributions to the Company from MBA were $5.7 million for 1998 and $7.3
million in 1997. Distributions from BEF in 1998 were $2.4 million. Prior to the
first quarter of 1998, BEF was prohibited under the terms of its bank
indebtedness from making distributions to its owners. These restrictions lapsed
during the first quarter of 1998 as a result of BEF having repaid 50% of the
principal on such indebtedness, and the Company received its first distribution
from BEF in April 1998.
33
<PAGE>
In connection with the IPO, the Company purchased participation interests
in a bank loan to MBA and a bank loan to BEF. The Company acquired an
approximate $7.7 million participation interest in the bank debt of MBA, which
bears interest at a floating rate per annum of LIBOR plus 0.75% and matures on
December 31, 2001. The Company will receive monthly principal payments,
aggregating approximately $1.7 million per year, plus interest from MBA during
the term of the loan. The Company will receive a final payment of principal of
$1.8 million upon maturity. The Company acquired an approximate $26.1 million
participation interest in a bank loan to BEF, which bears interest at a floating
rate per annum at either the bank's prime rate, CD rate, or the Eurodollar rate
plus the applicable margin as defined in the facility and matures on May 31,
2000. The Company will receive quarterly principal payments of approximately
$3.3 million plus interest from BEF during the term of the loan.
Bank Credit Facility
In connection with the IPO, the Company entered into a $200.0 million bank
credit facility that includes a $50.0 million working capital facility and a
$150.0 million revolving term loan facility. The $150.0 million revolving term
loan facility includes a sublimit of $30.0 million for letters of credit. As of
December 31, 1998, the Company has borrowed $90.0 million under the revolving
term loan facility.
The Company's obligations under the bank credit facility are unsecured
general obligations and are non-recourse to the General Partner. Borrowings
under the bank credit facility will bear interest at either the bank's prime
rate or the Eurodollar rate plus the applicable margin as defined in the
facility. The Company elects the basis for the interest rate at the time of each
borrowing. Interest rates ranged from 6.25% to 6.69% during 1998, and the
weighted-average interest rate at December 31, 1998 was 6.45%. The bank credit
facility will expire after two years and all amounts borrowed thereunder shall
be due and payable on such date. There must be no amount outstanding under the
working capital facility for at least 15 consecutive days during each fiscal
year.
The credit agreement relating to the facility contains a prohibition on
distributions on, or purchases or redemptions of, Units if any event of default
is continuing. In addition, the bank credit facility contains various
affirmative and negative covenants applicable to the ability of the Company to,
among other things, (i) incur certain additional indebtedness, (ii) grant
certain liens, (iii) sell assets in excess of certain limitations, (iv) make
investments, (v) engage in transactions with affiliates and (vi) enter into a
merger, consolidation or sale of assets. The bank credit facility requires that
the Operating Partnership satisfy the following financial covenants at the end
of each fiscal quarter: (i) maintain Consolidated Tangible Net Worth (as defined
in the bank credit facility) of at least $257,000,000 plus 75% of the net cash
proceeds from the sale of equity securities of the Company that are contributed
to the Operating Partnership, (ii) maintain a ratio of EBITDA (as defined in the
bank credit facility) to Consolidated Interest Expense (as defined in the bank
credit facility) for the previous 12-month period of at least 3.50 to 1.0 and
(iii) maintain a ratio of Total Indebtedness (as defined in the bank credit
facility) to EBITDA of no more than 2.25 to 1.0.
A "Change of Control" constitutes an Event of Default under the bank
credit facility. A Change of Control includes any of the following events: (i)
Dan L. Duncan (and certain affiliates) cease to own (a) at least 51% (on a fully
converted, fully diluted basis) of the economic interest in the capital stock of
EPCO or (b) an aggregate number of shares of capital stock of EPCO sufficient to
elect a majority of the board of directors of EPCO; (ii) EPCO ceases to own,
through a wholly owned subsidiary, at least 95% of the outstanding membership
interest in the General Partner and at least 51% of the outstanding Common
Units; (iii) any person or group beneficially owns more than 20% of the
outstanding Common Units; (iv) the General Partner ceases to be the general
partner of the Company or the Operating Partnership; or (v) the Company ceases
to be the sole limited partner of the Operating Partnership.
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Year 2000 Readiness Disclosure
Pursuant to the EPCO Agreement, any selling, general and administrative
expenses related to Year 2000 compliance issues are covered by the annual
administrative services fee paid by the Company to EPCO. Consequently, only
those costs incurred in connection with Year 2000 compliance which relate to
operational information systems and hardware will be paid directly by the
Company.
Since 1997, EPCO has been assessing the impact of Year 2000 compliance
issues on the software and hardware used by the Company. A team is in the
process of reviewing and documenting the status of EPCO's and the Company's
systems for Year 2000 compliance. The key information systems under review
include EPCO's financial and human resource systems and the Company's pipeline
Supervisory Control and Data Acquisition ("SCADA") system, plant, storage, and
other pipeline operating systems. In connection with each of these areas,
consideration is being given to hardware, operating systems, applications, data
base management, system interfaces, electronic transmission, and outside
vendors.
As of December 31, 1998, EPCO had spent approximately $12,000 in connection
with Year 2000 compliance and has estimated the future costs to approximate
$340,000. This cost estimate does not include internal costs of EPCO's
previously existing resources and personnel that might be partially used for
Year 2000 compliance or cost of normal system upgrades which also included
various Year 2000 compliance features or fixes. Such internal costs have been
determined to be materially insignificant to the total estimated cost of Year
2000 compliance.
At this time, the Company believes its total cost for known or anticipated
remediation of its information systems to make them Year 2000 compliant will not
be material to its financial position or its ability to sustain operations.
Since the IPO date, the Company has incurred substantially no expenditures in
connection with Year 2000 compliance. However, the Company expects future
spending to approximate $1,026,000 (principally for the SCADA system) to
complete the project and become fully compliant with all Year 2000 issues. This
estimated cost does not include the Company's internal costs related to
previously existing resources and personnel that might be partially used for
remediation of Year 2000 compliance issues. Such internal costs have been
determined to be materially insignificant to the total estimated cost of Year
2000 compliance. These amounts are current cost estimates and actual future
costs could potentially be higher or lower than the estimates. The Company
relies on third-party suppliers for certain systems, products and services,
including telecommunications. There can be no assurance that the systems of
other companies on which the Company's systems rely also will timely be
compliant or that any such failure to be compliant by another company would not
have an adverse effect on the Company's systems. The Company has received some
preliminary information concerning Year 2000 compliance status from a group of
critical suppliers and vendors, and anticipates receiving additional information
in the near future. This information will assist the Company in determining the
extent to which it may be vulnerable to those third parties' failure to address
their Year 2000 compliance issues.
Management believes it has a program to address the Year 2000 compliance
issue in a timely manner. Completion of the plan and testing of replacement or
modified systems is anticipated during the third quarter of 1999. Nevertheless,
since it is not possible to anticipate all possible future outcomes, especially
when third parties are involved, there could be circumstances in which the
Company would be unable to invoice customers or collect payments. The failure to
correct a material Year 2000 compliance problem could result in an interruption
in or failure of certain normal business activities or operations of the
Company. Such failures could have a material adverse effect on the Company. The
amount of potential liability and lost revenue has not been estimated.
The Company is continuing its work on contingency plans to address
unavoided or unavoidable risks associated with Year 2000 compliance issues.
35
<PAGE>
Accounting Standards
Recent Statements of Financial Accounting Standards ("SFAS") include
(effective for all fiscal quarters of fiscal years beginning after June 15,
1999) SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities." Management is currently studying this SFAS item for its possible
impact on the consolidated financial statements. On April 3, 1998, the American
Institute of Certified Public Accountants issued Statement of Position ("SOP")
98-5, "Reporting on the Costs of Start-Up Activities." For years beginning after
December 15, 1998, SOP 98-5 generally requires that all start-up costs of a
business activity be charged to expense as incurred and any start-up costs
previously deferred should be written off as a cumulative effect of a change in
accounting principle. Based on its assessment of SOP 98-5, management believes
SOP 98-5 will not have a material impact on the financial statements except for
a $4.5 million noncash write-off at January 1, 1999 of the unamortized balance
of deferred start-up costs of BEF, in which the Company owns a 33-1/3% interest.
This write-off will cause a $1.5 million reduction in the equity in income of
unconsolidated affiliates for 1999 and a corresponding reduction in the
Company's investment in unconsolidated affiliates.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
The Company is exposed to financial market risks, including changes in
interest rates with respect to its investments in financial instruments and
changes in commodity prices. The Company may, but generally does not, use
derivative financial instruments (i.e., futures, forwards, swaps, options, and
other financial instruments with similar characteristics) or derivative
commodity instruments (i.e., commodity futures, forwards, swaps, or options, and
other commodity instruments with similar characteristics that are permitted by
contract or business custom to be settled in cash or with another financial
instrument) to mitigate either of these risks. The return on the Company's
financial investments is generally not affected by foreign currency
fluctuations. The Company does not use derivative financial instruments for
speculative purposes. At December 31, 1998, the Company had no derivative
instruments in place to cover any potential interest rate, foreign currency or
other financial instrument risk.
At December 31, 1998, the Company had $24.1 million invested in cash and
cash equivalents. All cash equivalent investments other than cash are highly
liquid, have original maturities of less than three months, and are considered
to have insignificant interest rate risk. The Company's inventory of NGLs and
NGL products at December 31, 1998, was $17.6 million. Inventories are carried at
the lower of cost or market. A 10% adverse change in commodity prices would
result in an approximate $1.7 million decrease in the fair value of the
Company's inventory, based on a sensitivity analysis at December 31, 1998.
Actual results may differ materially. All the Company's long-term debt is at
variable interest rates; a 10% change in the base rate selected would have an
approximate $0.6 million effect on the amount of interest expense for the year
based upon amounts outstanding at December 31, 1998.
Item 8. Financial Statements and Supplementary Data.
The information required hereunder is included in this report as set forth
in the "Index to Financial Statements" on page F-1.
Item 9. Changes in and disagreements with Accountants on Accounting and
Financial Disclosure.
None.
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PART III
Item 10. Directors and Executive Officers of the Registrant.
Company Management
The General Partner manages and operates the activities of the Company.
Notwithstanding any limitation on its obligations or duties, the General Partner
is liable, as the general partner of the Company, for all debts of the Company
(to the extent not paid by the Company), except to the extent that indebtedness
or other obligations incurred by the Company are made specifically non-recourse
to the General Partner. Whenever possible, the General Partner intends to make
any such indebtedness or other obligations non-recourse to the General Partner.
At least two of the members of the Board of Directors of the General
Partner who are neither officers, employees or security holders of the General
Partner nor directors, officers, employees or security holders of any affiliate
of the General Partner serve on the Audit and Conflicts Committee, which has the
authority to review specific matters as to which the Board of Directors believes
there may be a conflict of interests in order to determine if the resolution of
such conflict proposed by the General Partner is fair and reasonable to the
Company. Any matters approved by the Audit and Conflicts Committee are
conclusively deemed to be fair and reasonable to the Company, approved by all
partners of the Company and not a breach by the General Partner or its Board of
Directors of any duties they may owe the Company or the Unitholders. In
addition, the Audit and Conflicts Committee reviews the external financial
reporting of the Company, recommends engagement of the Company's independent
public accountants, reviews the Company's procedures for internal auditing and
the adequacy of the Company's internal accounting controls and approves any
increases in the administrative service fee payable under the EPCO Agreement.
As is commonly the case with publicly-traded limited partnerships, the
Company does not directly employ any of the persons responsible for managing or
operating the Company. In general, the management of EPCO, the majority-owner of
the General Partner, manages and operates the Company's business pursuant to the
EPCO Agreement.
Directors and Executive Officers of the General Partner
Set forth below is the name, age, and position of each of the directors and
executive officers of the General Partner. Each director and officer is elected
for a one-year term.
Name Age Position with General Partner
- --------------------------- --- ------------------------------------------------
Dan L. Duncan 65 Director and Chairman of the Board
O.S. Andras 63 Director, President, and Chief Executive Officer
Randa L. Duncan 37 Director and Group Executive Vice President
Gary L. Miller 50 Director, Executive Vice President, Chief
Financial Officer, and Treasurer
Dr. Ralph S. Cunningham (1) 58 Director
Lee W. Marshall, Sr.(1) 66 Director
Albert W. Bell 60 Executive Vice President, Business Management
William D. Ray 63 Executive Vice President, Marketing and Supply
Charles E. Crain 65 Senior Vice President, Operations
Michael R. Johnson 54 General Counsel and Secretary
- -------------
(1) Member of Audit and Conflicts Committee
Dan L. Duncan was elected as Chairman of the Board and a Director of the
General Partner in April 1998. Mr. Duncan joined EPCO in 1969 and has served as
Chairman of the Board of EPCO since 1979. He served as President of EPCO from
1970 to 1979 and Chief Executive Officer from 1982 to 1985.
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O. S. Andras was elected as President, Chief Executive Officer and a
Director of the General Partner in April 1998. Mr. Andras has served as
President and Chief Executive Officer of EPCO since 1996. Mr. Andras served as
President and Chief Operating Officer of EPCO from 1982 to 1996 and Executive
Vice President of EPCO from 1981 to 1982. Before joining EPCO, he was employed
by The Dow Chemical Company in various capacities from 1960 to 1981, including
Director of Hydrocarbons. Mr. Andras also serves as a director of Tetra
Technologies, Inc.
Randa L. Duncan was elected as Group Executive Vice President and a
director of the General Partner in April 1998. Ms. Duncan has served as Group
Executive Vice President of EPCO since 1994. Before joining EPCO, she was an
attorney with the firms of Butler & Binion from 1988 to 1991 and Brown, Sims,
Wise and White from 1991 until 1994. Ms. Duncan is the daughter of Dan L.
Duncan.
Albert W. Bell was elected as Executive Vice President, Business Management
of the General Partner in April 1998. Mr. Bell has served as Executive Vice
President, Business Management of EPCO since 1994. Mr. Bell joined EPCO in 1980
as President of its Canadian subsidiary. Mr. Bell transferred to EPCO in Houston
in 1988 as Vice President, Business Development and was promoted to Senior Vice
President, Business Management in 1992. Prior to joining EPCO, he was employed
by Continental Emsco Supply Company, Ltd. and Amoco Canada Petroleum Company,
Ltd.
Gary L. Miller was elected as Executive Vice President, Chief Financial
Officer, Treasurer and Director of the General Partner in April 1998. Mr. Miller
has served as Executive Vice President, Chief Financial Officer and Treasurer of
EPCO since 1990. He served as Senior Vice President, Controller and Treasurer of
EPCO from 1988 to 1990. From 1983 to 1988 he served as Vice President, Treasurer
and Controller of EPCO. Before joining EPCO, he was employed by Wanda Petroleum,
where he was Assistant Controller from 1977 to 1980.
William D. Ray was elected as Executive Vice President, Marketing and
Supply of the General Partner in April 1998. Mr. Ray has served as EPCO's
Executive Vice President, Marketing and Supply since 1985. Mr. Ray served as
Vice President, Supply and Distribution of EPCO from 1971 to 1973 and as EPCO's
Senior Vice President, Supply, Marketing and Distribution from 1973 to 1979.
Prior to joining EPCO in 1971, Mr. Ray was employed by Wanda Petroleum from 1958
to 1969 and Koch as Vice President, Marketing and Supply from 1969 to 1971.
Charles E. Crain was elected as Senior Vice President, Operations of the
General Partner in April 1998 and has served as Senior Vice President,
Operations of EPCO since 1991. Mr. Crain joined EPCO in 1980 as Vice President,
Process Operations. Prior to joining EPCO, Mr. Crain held positions with Shell
Oil Company, Air Products & Chemicals and Tenneco Chemicals.
Michael R. Johnson was elected as General Counsel and Secretary of the
General Partner in April 1998 and has served as General Counsel and Secretary of
EPCO since 1982. Mr. Johnson joined EPCO as Senior Attorney in 1979. Before
joining EPCO, Mr. Johnson was employed by the Internal Revenue Service for six
years and spent two years in private practice in Tyler, Texas. Mr. Johnson also
worked for the Department of Energy on the regional counsel staff of the Office
of Special Counsel.
Ralph S. Cunningham was elected as a Director of the General Partner in
April 1998. Dr. Cunningham retired in 1997 from Citgo Petroleum Corporation,
where he had served as President and Chief Executive Officer since 1995. Dr.
Cunningham served as Vice Chairman of Huntsman Corporation from 1994 until 1995
and as President of Texaco Chemical Company from 1990 through 1994. Prior to
joining Texaco Chemical Company, Dr. Cunningham held various executive positions
with Clark Oil & Refining and Tenneco. He started his career in Exxon's refinery
operations. He holds Ph.D., M.S. and B.S. degrees in Chemical Engineering. Dr.
Cunningham serves as a director of Huntsman Corporation and Agrium, Inc. and
served as a director of EPCO from 1987 to 1997.
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Lee W. Marshall, Sr. was elected as a Director of the General Partner in
April 1998. Mr. Marshall has been the Chief Executive Officer and principal
stockholder of Bison International, Inc., and Bison Resources, LLC since 1991.
Previously, Mr. Marshall was Executive Vice President and Chief Financial
Officer of Wolverine Exploration Company and held senior management positions
with Union Pacific Resources and Tenneco Oil.
Item 11. Executive Compensation.
The Company has no executive officers. The Company is managed by the
General Partner, the executive officers of which are employees of, and the
compensation of whom is paid by, EPCO. Pursuant to the EPCO Agreement, EPCO is
reimbursed at cost for all expenses that it incurs managing the business and
affairs of the Company, except that EPCO is not entitled to be reimbursed for
any selling, general, and administrative expenses. In lieu of reimbursement for
such selling, general, and administrative expenses, EPCO is entitled to receive
an annual administrative services fee that currently equals $12.0 million. The
Company paid EPCO $5.1 million in administrative services fees under the EPCO
Agreement during 1998. The General Partner, with the approval and consent of the
Audit and Conflicts Committee, has the right to agree to increases in such
administrative services fee of up to 10% each year during the 10-year term of
the EPCO agreement and may agree to further increases in such fee in connection
with expansions of the Company's operations through the construction of new
facilities or the completion of acquisitions that require additional management
personnel.
Compensation of Directors
No additional remuneration is paid to employees of EPCO or the General
Partner who also serve as directors of the General Partner. Each independent
director receives $24,000 annually, for which each agrees to participate in four
regular meetings of the Board of Directors and four Audit and Conflicts
Committee meetings. Each independent director also receives $500 for each
additional meeting in which he participates. In addition, each independent
director is reimbursed for his out-of-pocket expenses in connection with
attending meetings of the Board of Directors or committees thereof. Each
director is fully indemnified by the Company for his actions associated with
being a director to the extent permitted under Delaware law.
39
<PAGE>
Item 12. Security Ownership of Certain Beneficial Owners and Management.
The following table sets forth certain information as of March 1, 1999,
regarding the beneficial ownership of (a) the Common Units and (b) the
Subordinated Units of the Company by all directors of the General Partner, each
of the named executive officers, all directors and executive officers as a group
and all persons known by the General Partner to own beneficially more than 5% of
the Common Units.
<TABLE>
<CAPTION>
Percentage of Percentage of Percentage of
Common Common Subordinated Subordinated Total Total
Units (2) Units Units (2) Units Units Units
Beneficially Beneficially Beneficially Beneficially Beneficially Beneficially
Owned Owned Owned Owned Owned Owned
----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
EPCO (1) 33,552,915 73.7% 21,409,870 100.0% 54,962,785 82.1%
Dan Duncan (1) 33,552,915 73.7% 21,409,870 100.0% 54,962,785 82.1%
O.S. Andras 100,000 0.2% - - 100,000 0.1%
Randa L. Duncan - - - - - -
Gary L. Miller - - - - - -
Dr. Ralph S. Cunningham - - - - - -
Lee W. Marshall - - - - - -
All directors and
executive officers as
a group (10 persons) 33,655,915 75.3% 21,409,870 100.0% 55,065,785 83.2%
</TABLE>
______________
(1) EPCO holds the Units through its wholly-owned subsidiary EPC Partners II,
Inc. Mr. Duncan owns 57.1% of the voting stock of EPCO and, accordingly,
exercises sole voting and dipositive power with respect to the Units held by
EPCO. The remaining shares of EPCO capital stock are held primarily by trusts
for the benefit of the members of Mr. Duncan's family, including Randa L.
Duncan, a director and executive officer of the General Partner. The address of
EPCO is 2727 North Loop West, Houston, Texas 77008.
(2) For a discussion of the Company's Partners' Equity and the Units in general,
see Note 6 of the Notes to Consolidated Financial Statements. Subordinated
Units are non-voting.
Section 16(a) Beneficial Ownership Reporting Compliance
Under the federal securities laws, the General Partner, the General
Partner's directors, executive (and certain other) officers, and any persons
holding more than ten percent of the Common Units are required to report their
ownership of Common Units and any changes in that ownership to the Company and
the SEC. Specific due dates for these reports have been established by
regulation and the Company is required to report in this proxy statement any
failure to file by these dates in 1998.
The Company believes that all of these filings were satisfied by the
General Partner, the General Partner's directors and officers, and ten percent
holders. As of March 1, 1999, the Company believes that the General Partner, and
all of the General Partner's directors and officers and any ten percent holders
are current in their filings. In making these statements, the Company has relied
on the written representations of the General Partner, the General Partner's
directors and officers, and ten percent holders and copies of reports that they
have filed with the SEC.
Item 13. Certain Relationships and Related Transactions.
Ownership Interests of EPCO and its affiliates in the Company
At December 31, 1998, EPC Partners II, Inc., a wholly owned subsidiary of
EPCO, owned 33,552,915 Common Units and 21,409,870 Subordinated Units,
representing a 49.1% interest and a 31.3% interest, respectively, in the
Company. In addition, the General Partner owned a combined 2% interest in the
Company and the Operating Partnership. In addition, another affiliate of EPCO,
Enterprise Products 1998 Unit Option Plan Trust (the "1998 Trust") owned 660,890
Common Units as of December 31, 1998. The 1998 Trust was formed for the purpose
of granting options in the
40
<PAGE>
Company's securities to management and certain key employees. The 1998 Trust
intends to purchase up to 339,110 additional Units on the open market or through
privately negotiated transactions.
Ownership Interests of other affiliates of the Company
Another affiliate of the Company, EPOLP 1999 Grantor Trust (the "1999
Trust"), also intends to purchase up to 400,000 additional Common Units on the
open market or through privately negotiated transactions. The 1999 Trust was
formed to fund liabilities of a long-term incentive employee benefit plan. As of
December 31, 1998, no Common Units had been purchased by the 1999 Trust.
Related Party Transactions
The Company, the Operating Partnership, the General Partner, EPCO and
certain other parties have entered into various documents and agreements that
generally govern the business of the Company and its affiliates. Such documents
and agreements are not the result of arm's-length negotiations, and there can be
no assurance that it, or that any of the transactions provided for therein, are
effected on terms at least as favorable to the parties to such agreement as
could have been obtained from unaffiliated third parties.
The Company has an extensive ongoing relationship with EPCO and its
affiliates. These relationships include the following:
(i) All management, administrative and operating functions for the
Company are performed by officers and employees of EPCO pursuant to the terms of
the EPCO Agreement. Under the EPCO Agreement, EPCO employs the operating
personnel involved in the Company's business and is reimbursed at cost.
(ii) EPCO is and will continue as operator of the plants and facilities
owned by BEF, MBA, BRF, and EPIK and in connection therewith will charge such
entities for actual salary costs and related fringe benefits. As operator of
such facilities, EPCO also is entitled to be reimbursed for the cost of
providing certain management services to such entities, which costs totaled $2.1
million in the aggregate for the year ended December 31, 1998.
(iii) Although EPCO transferred a 49% economic interest in MBA to the
Company, the Company is not a partner in such partnership. EPCO retains a 1%
economic interest in such partnership and, except for the economic rights
transferred by EPCO to the Company, continues to hold all rights as a partner
under the partnership agreement for MBA, including the right to participate in
the management and conduct of the business and affairs of such entity.
(iv) EPCO and the Company have entered into an agreement pursuant to
which EPCO provides trucking services to the Company.
(v) EPCO retains the Retained Leases and, pursuant to the terms of the
EPCO Agreement, subleases all of the facilities covered by the Retained Leases
to the Company for $1 per year and has assigned its purchase options under the
Retained Leases to the Company. EPCO is liable for the lease payments under the
Retained Leases.
(vi) Pursuant to the EPCO Agreement, the Company and the Operating
Partnership participate as named insureds in EPCO's current insurance program,
and costs attributable thereto are allocated among the parties on the basis of
formulas set forth in such agreement.
(vii) Pursuant to the EPCO Agreement, EPCO licenses certain trademarks
and tradenames to the Company and indemnifies the Company for certain lawsuits
and claims.
41
<PAGE>
(viii) In the normal course of its business, the Company engages in
transactions with BEF, MBA and other subsidiaries and divisions of EPCO. These
transactions include the buying and selling of NGL products and the
transportation of NGL products by truck.
For a description of certain historical related party transactions between
EPCO, the Company and their affiliates, see Note 8 of Notes to Consolidated
Financial Statements.
42
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.
(a)(1) and (2) Financial Statements and Financial Statement Schedules
See "Index to Financial Statements" set forth on page F-1.
(a)(3) Exhibits
*3.1 Form of Amended and Restated Agreement of Limited Partnership of
Enterprise Products Partners L.P. (Exhibit 3.1 to Registration
Statement on Form S-1, File No. 333-52537, filed on May 13, 1998).
*3.2 Form of Amended and Restated Agreement of Limited Partnership of
Enterprise Products Operating L.P. (Exhibit 3.2 to Registration
Statement on Form S-1/A, File No. 333-52537, filed on July 21,
1998).
*3.3 LLC Agreement of Enterprise Products GP (Exhibit 3.3 to Registration
Statement on Form S-1/A, File No. 333-52537, filed on July 21,
1998).
*4.1 Form of Common Unit certificate (Exhibit 4.1 to Registration
Statement on Form S-1/A, File No. 333-52537, filed on July 21,
1998).
4.2 Credit Agreement among Enterprise Products Operating L.P., the
Several Banks from Time to Time Parties Hereto, Den Norske Bank ASA,
and Bank of Tokyo-Mitsubishi, Ltd., Houston Agency as Co-
Arrangers, The Bank of Nova Scotia, as Co-Arranger and as
Documentation Agent and The Chase Manhattan Bank as Co-Arranger and
as Agent dated as of July 27, 1998 as Amended and Restated as
of September 30, 1998.
*10.1 Articles of Merger of Enterprise Products Company, HSC Pipeline
Partnership, L.P., Chunchula Pipeline Company, LLC, Propylene
Pipeline Partnership, L.P., Cajun Pipeline Company, LLC and
Enterprise Products Texas Operating L.P. dated June 1, 1998 (Exhibit
10.1 to Registration Statement on Form S-1/A, File No: 333-52537,
filed on July 8, 1998).
*10.2 Form of EPCO Agreement between Enterprise Products Partners L.P.,
Enterprise Products Operating L.P., Enterprise Products GP, LLC and
Enterprise Products Company (Exhibit 10.2 to Registration Statement
on Form S-1/A, File No. 333-52537, filed on July 21, 1998).
*10.3 Transportation Contract between Enterprise Products Operating L.P.
and Enterprise Transportation Company dated June 1, 1998 (Exhibit
10.3 to Registration Statement on Form S-1/A, File No. 333-52537,
filed on July 8, 1998).
*10.4 Venture Participation Agreement between Sun Company, Inc. (R&M),
Liquid Energy Corporation and Enterprise Products Company dated May
1, 1992 (Exhibit 10.4 to Registration Statement on Form S-1, File
No. 333-52537, filed on May 13, 1998).
43
<PAGE>
*10.5 Partnership Agreement between Sun BEF, Inc., Liquid Energy Fuels
Corporation and Enterprise Products Company dated May 1, 1992
(Exhibit 10.5 to Registration Statement on Form S-1, File No. 333-
52537, filed on May 13, 1998).
*10.6 Amended and Restated MTBE Off-Take Agreement between Belvieu
Environmental Fuels and Sun Company, Inc. (R&M) dated August 16,
1995 (Exhibit 10.6 to Registration Statement on Form S-1, File No.
333-52537, filed on May 13, 1998).
*10.7 Articles of Partnership of Mont Belvieu Associates dated July 17,
1985 (Exhibit 10.7 to Registration Statement on Form S-1, File No.
333-52537, filed on May 13, 1998).
*10.8 First Amendment to Articles of Partnership of Mont Belvieu
Associates dated July 15, 1996 (Exhibit 10.8 to Registration
Statement on Form S-1, File No. 333-52537, filed on May 13, 1998).
*10.9 Propylene Facility and Pipeline Agreement between Enterprise
Petrochemical Company and Hercules Incorporated dated
December 13, 1978 (Exhibit 10.9 to Registration Statement on Form
S-1, File No. 333-52537, dated May 13, 1998).
*10.10 Restated Operating Agreement for the Mont Belvieu Fractionation
Facilities Chambers County, Texas between Enterprise Products
Company, Texaco Producing Inc., El Paso Hydrocarbons Company and
Champlin Petroleum Company dated July 17, 1985 (Exhibit 10.10 to
Registration Statement on Form S-1/A, File No. 333-52537, filed on
July 8, 1998).
*10.11 Ratification and Joinder Agreement relating to Mont Belvieu
Associates Facilities between Enterprise Products Company Texaco
Producing Inc., El Paso Hydrocarbons Company, Champlin Petroleum
Company and Mont Belvieu Associates dated July 17, 1985 (Exhibit
10.11 to Registration Statement on Form S-1/A, File No. 333-52537,
filed on July 8, 1998).
*10.12 Amendment to Propylene Facility and Pipeline Sales Agreement between
HIMONT U.S.A., Inc. and Enterprise Products Company dated January 1,
1993 (Exhibit 10.12 to Registration Statement on Form S-1/A, File
No. 333-52537, filed on July 8, 1998).
*10.13 Amendment to Propylene Facility and Pipeline Agreement between
HIMONT U.S.A., Inc. and Enterprise Products Company dated January 1,
1995 (Exhibit 10.13 to Registration Statement on Form S-1/A, File
No. 333-52537, filed on July 8, 1998).
21.1 List of Subsidiaries of the Company
27.1 Financial Data Schedule
_____________________
* Asterisk indicates exhibits incorporated by reference as indicated; all
other exhibits are filed herewith
44
<PAGE>
(b) Reports on Form 8-K
The Company filed two Form 8-Ks during the quarter ending December 31,
1998.
(I) Form 8-K dated October 19, 1998, reporting that the Company
announced that its affiliate, EPCO intended to purchase up to 500,000 of the
Company's Common Units in the open market or through privately negotiated
transactions. A description of the intended transaction was filed according to
Item 5, and the associated press release was filed pursuant to Item 7.
(II) Form 8-K dated December 22, 1998, reporting that the Company
announced that it, together with certain of its affiliates, may purchase up to
1,000,000 of the Company's Common Units in the open market or through privately
negotiated transactions. At the time of the December 22, 1998 filing, the
Company's affiliate, EPCO, had purchased, since October 19, 1998, 375,000 of the
Company's Common Units in the open market and restated its intention to purchase
up to 125,000 additional Common Units in the open market or through privately
negotiated transactions. A description of the intended transaction was filed
according to Item 5, and the associated press release was filed pursuant to
Item 7.
45
<PAGE>
INDEX TO FINANCIAL STATEMENTS
Page
Enterprise Products Partners L.P.
Independent Auditors' Report............................................ F-2
Consolidated Balance Sheets as of December 31, 1997 and 1998............ F-3
Statements of Consolidated Operations
for the Years Ended December 31, 1996, 1997 and 1998.................. F-4
Statements of Consolidated Cash Flows
for the Years Ended December 31, 1996, 1997 and 1998.................. F-5
Statements of Consolidated Partners' Equity
for the Years Ended December 31, 1996, 1997 and 1998.................. F-6
Notes to Consolidated Financial Statements.............................. F-7
Belvieu Environmental Fuels
Independent Auditors' Report............................................ F-22
Balance Sheets as of December 31, 1997 and 1998......................... F-23
Statements of Operations
for the Years Ended December 31, 1996, 1997 and 1998 ................. F-24
Statements of Cash Flows
for the Years Ended December 31, 1996, 1997 and 1998.................. F-25
Statements of Partners' Equity
for the Years Ended December 31, 1996, 1997 and 1998.................. F-26
Notes to Financial Statements........................................... F-27
All schedules have been omitted because they are either not applicable, not
required or the information called for therein appears in the consolidated
financial statements or notes thereto.
F-1
<PAGE>
Independent Auditors' Report
Enterprise Products Partners L.P.:
We have audited the accompanying consolidated balance sheets of Enterprise
Products Partners L.P. (the "Company") as of December 31, 1997 and 1998, and
the related statements of consolidated operations, consolidated cash flows and
consolidated partners' equity for each of the years in the three-year period
ended December 31, 1998. These consolidated financial statements are the
responsibility of the management of the Company. Our responsibility is to
express an opinion on these consolidated financial statements based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of the Company at December 31, 1997
and 1998, and the results of their operations and their cash flows for each of
the years in the three-year period ended December 31, 1998 in conformity with
generally accepted accounting principles.
DELOITTE & TOUCHE LLP
Houston, Texas
February 15, 1999
F-2
<PAGE>
ENTERPRISE PRODUCTS PARTNERS L.P.
CONSOLIDATED BALANCE SHEETS
(AMOUNTS IN THOUSANDS)
DECEMBER 31,
------------------------
1997 1998
ASSETS ------------------------
CURRENT ASSETS
Cash and cash equivalents, including restricted cash
of $4,522 in 1997 $ 23,463 $ 24,103
Accounts receivable - trade 69,851 57,288
Accounts receivable - affiliates 6,682 15,546
Inventories 18,935 17,574
Current maturities of participation in notes
receivable from unconsolidated affiliates 14,737
Prepaid and other current assets 8,103 8,445
------------------------
Total current assets 127,034 137,693
PROPERTY, PLANT AND EQUIPMENT, NET 513,727 499,793
INVESTMENTS IN AND ADVANCES TO
UNCONSOLIDATED AFFILIATES 55,875 91,121
PARTICIPATION IN NOTES RECEIVABLE FROM
UNCONSOLIDATED AFFILIATES 11,760
OTHER ASSETS 1,077 670
------------------------
TOTAL $697,713 $741,037
========================
LIABILITIES AND PARTNERS' EQUITY
CURRENT LIABILITIES
Current maturities of long-term debt $ 14,903
Accounts payable - trade 76,591 $ 36,586
Accrued gas payables 45,668 27,183
Accrued expenses 8,638 7,540
Other current liabilities 21,544 11,462
------------------------
Total current liabilities 167,344 82,771
LONG-TERM DEBT 215,334 90,000
MINORITY INTEREST 3,150 5,730
COMMITMENTS AND CONTINGENCIES
PARTNERS' EQUITY
Common Units (33,552,915 and 45,552,915 units
outstanding at December 31, 1997 and 1998,
respectively) 188,503 433,082
Subordinated Units (21,409,870 units outstanding
at December 31, 1997 and 1998) 120,263 123,829
General Partner 3,119 5,625
------------------------
Total partners' equity 311,885 562,536
------------------------
TOTAL $697,713 $741,037
========================
See Notes to Consolidated Financial Statements
F-3
<PAGE>
ENTERPRISE PRODUCTS PARTNERS L.P.
STATEMENTS OF CONSOLIDATED OPERATIONS
(Amounts in Thousands, Except per Unit Amounts)
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------------------
1996 1997 1998
-------------------------------------------------------
<S> <C> <C> <C>
Revenues $999,506 $1,020,281 $738,902
-------------------------------------------------------
Cost and Expenses
Operating costs and expenses 907,524 938,237 686,160
Selling, general and administrative 23,070 21,891 18,216
-------------------------------------------------------
Total 930,594 960,128 704,376
-------------------------------------------------------
Operating Income 68,912 60,153 34,526
-------------------------------------------------------
Other Income (Expense)
Interest expense (26,310) (25,717) (14,696)
Equity income in unconsolidated affiliates 15,756 15,682 15,671
Interest income from unconsolidated
affiliates 809
Interest income - other 2,705 1,934 772
Other, net 364 638 273
-------------------------------------------------------
Other income (expense) (7,485) (7,463) 2,829
-------------------------------------------------------
Income before Extraordinary Item and
Minority Interest 61,427 52,690 37,355
Extraordinary item--early extinguishment of
debt (27,176)
-------------------------------------------------------
Income before Minority Interest 61,427 52,690 10,179
Minority Interest (614) (527) (102)
-------------------------------------------------------
Net Income $ 60,813 $ 52,163 $ 10,077
=======================================================
Allocation of Net Income to:
Limited partners $ 60,205 $ 51,641 $ 9,976
=======================================================
General partner $ 608 $ 522 $ 101
=======================================================
Income per Unit Before
Extraordinary Item $1.10 $.94 $.62
Extraordinary item (.45)
-------------------------------------------------------
Net Income per Unit $1.10 $.94 $.17
=======================================================
Weighted-average number of units
outstanding 54,963 54,963 60,124
=======================================================
</TABLE>
See Notes to Consolidated Financial Statements
F-4
<PAGE>
ENTERPRISE PRODUCTS PARTNERS L.P.
STATEMENTS OF CONSOLIDATED CASH FLOWS
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------------
1996 1997 1998
-----------------------------------------------
<S> <C> <C> <C>
Operating Activities
Net income $ 60,813 $ 52,163 $ 10,077
Adjustments to reconcile net income to cash
flows provided by (used for) operating
activities:
Extraordinary item - early extinguishment
of debt 27,176
Depreciation and amortization 15,742 17,684 19,194
Equity in income of unconsolidated affiliates (15,756) (15,682) (15,671)
Leases paid by EPCO 4,010
Minority interest 614 527 102
(Gain) loss on sale of assets 155 (276)
Net effect of changes in operating accounts 30,018 2,948 (64,906)
-----------------------------------------------
Operating activities cash flows 91,431 57,795 (20,294)
-----------------------------------------------
Investing Activities
Capital expenditures (61,010) (33,636) (8,360)
Proceeds from sale of assets 25 1,887
Participation in notes receivable from
unconsolidated affiliates:
Purchase of notes receivable (33,725)
Collection of notes receivable 7,228
Unconsolidated affiliates:
Investments in and advances to (3,894) (4,625) (26,842)
Distributions received 7,154 7,279 9,117
-----------------------------------------------
Investing activities cash flows (57,725) (30,982) (50,695)
-----------------------------------------------
Financing Activities
Net proceeds from sale of common units 243,296
Long-term debt borrowings 24,001 598 90,000
Long-term debt repayments (50,040) (25,978) (257,413)
Net increase (decrease) in restricted cash 1,109 (1,171) 4,522
Cash contributions from EPCO to minority
interest 2,478
Cash dividends paid (21,645)
-----------------------------------------------
Financing activities cash flows (24,930) (26,551) 61,238
-----------------------------------------------
Cash Contributions from (to) epco 6,393 (6,299) 14,913
-----------------------------------------------
Net Change in Cash and Cash Equivalents 15,169 (6,037) 5,162
Cash and Cash Equivalents, January 1 9,809 24,978 18,941
-----------------------------------------------
Cash and Cash Equivalents, December 31
(Excluding restricted cash of $3,351 in
1996 and $4,522 in 1997) $ 24,978 $ 18,941 $ 24,103
===============================================
</TABLE>
See Notes to Consolidated Financial Statements
F-5
<PAGE>
ENTERPRISE PRODUCTS PARTNERS L.P.
STATEMENTS OF CONSOLIDATED PARTNERS' EQUITY
(Amounts in Thousands)
<TABLE>
<CAPTION>
Limited Partners
-----------------------------
Common Subordinated General
Units Units Partner Total
--------------------------------------------------------------
<S> <C> <C> <C> <C>
Consolidated Partners' Equity, January 1, 1996 $120,164 $ 76,663 $1,988 $198,815
Net Income 36,755 23,450 608 60,813
Cash contributions from EPCO 3,864 2,465 64 6,393
--------------------------------------------------------------
Consolidated Partners' Equity, December 31, 1996 160,783 102,578 2,660 266,021
Net Income 31,527 20,114 522 52,163
Cash distributions to EPCO (3,807) (2,429) (63) (6,299)
--------------------------------------------------------------
Consolidated Partners' Equity, December 31, 1997 188,503 120,263 3,119 311,885
Net Income 5,641 4,335 101 10,077
Cash contributions from EPCO 7,519 4,813 2,581 14,913
Leases paid by EPCO after public offering 2,701 1,269 40 4,010
Proceeds from sale of Common Units 243,296 243,296
Cash distributions to Unitholders ($.32 per
unit on Common and Subordinated Units) (14,578) (6,851) (216) (21,645)
--------------------------------------------------------------
Consolidated Partners' Equity, December 31, 1998 $433,082 $123,829 $5,625 $562,536
==============================================================
</TABLE>
See Notes to Consolidated Financial Statements
F-6
<PAGE>
ENTERPRISE PRODUCTS PARTNERS L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ENTERPRISE PRODUCTS PARTNERS L.P. (the "Company") was formed on April 9,
1998 as a Delaware limited partnership to own and operate the natural gas
liquids ("NGL") business of Enterprise Products Company ("EPCO"). The
Company is the limited partner and owns 99% of Enterprise Products
Operating L.P. (the "Operating Partnership"), which directly or indirectly
owns or leases and operates the NGL facilities. Enterprise Products GP, LLC
(the "General Partner") is the general partner and owns 1.0101% of the
Operating Partnership and 1% of the Company. Both the Company and the
General Partner are subsidiaries of EPCO.
Prior to their consolidation, EPCO and its affiliated companies were
controlled by members of a single family, who collectively owned at least
90% of each of the entities for all periods presented. As of April 30,
1998, the owners of all the affiliated companies exchanged their ownership
interests for shares of EPCO. Accordingly, each of the affiliated companies
became a wholly owned subsidiary of EPCO or was merged into EPCO as of
April 30, 1998. In accordance with generally accepted accounting
principles, the consolidation of the affiliated companies with EPCO was
accounted for as a reorganization of entities under common control in a
manner similar to a pooling of interests.
Under terms of a contract entered into on May 8, 1998 between EPCO and the
Operating Partnership, EPCO contributed all of its NGL assets through the
Company and the General Partner to the Operating Partnership and the
Operating Partnership assumed certain of EPCO's debt. As a result, the
Company became the successor to the NGL operations of EPCO.
Effective July 27, 1998, the Company filed a registration statement
pursuant to an initial public offering of 12,000,000 Common Units. The
Common Units sold for $22 per unit. The Company received approximately
$243.3 million after underwriting commissions of $16.8 million and expenses
of approximately $3.9 million.
The accompanying consolidated financial statements include the historical
accounts and operations of the NGL business of EPCO, including NGL
operations conducted by affiliated companies of EPCO prior to their
consolidation with EPCO. Investments in which the Company owns 20% to 50%
and exercises significant influence over operating and financial policies
are accounted for using the equity method. All significant intercompany
accounts and transactions have been eliminated in consolidation.
Certain reclassifications have been made to the prior years' financial
statements to conform to the presentation of the current period financial
statements.
INVENTORIES, consisting of NGLs and NGL products, are carried at the lower
of average cost or market.
EXCHANGES are movements of NGL products between parties to satisfy timing
and logistical needs of the parties. NGLs and NGL products borrowed from
the Company under such agreements are included in inventories, and NGLs and
NGL products loaned to the Company under such agreements are accrued as a
liability in accrued gas payables.
PROPERTY, PLANT AND EQUIPMENT is recorded at cost and is depreciated using
the straight-line method over the asset's estimated useful life.
Maintenance, repairs and minor renewals are charged to operations as
incurred. Additions, improvements and major renewals are capitalized. The
cost of assets retired or sold, together with the related accumulated
F-7
<PAGE>
depreciation, is removed from the accounts, and any gain or loss on
disposition is included in income.
REVENUE is recognized when products are shipped or services are rendered.
USE OF ESTIMATES AND ASSUMPTIONS by management that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period are required
for the preparation of financial statements in conformity with generally
accepted accounting principles. Actual results could differ from these
estimates.
FEDERAL INCOME TAXES are not provided because the Company and its
predecessors either had elected under provisions of the Internal Revenue
Code to be a Master Limited Partnership or Subchapter S Corporation or were
organized as pass-through entities for federal income tax purposes. As a
result, for federal income taxes purposes, the owners are individually
responsible for the taxes on their allocable share of the consolidated
taxable income of the Company. State income taxes are not material.
ENVIRONMENTAL COSTS for remediation are accrued based on estimates of known
remediation requirements. Such accruals are based on management's best
estimate of the ultimate costs to remediate the site. Ongoing environmental
compliance costs are charged to expense as incurred, and expenditures to
mitigate or prevent future environmental contamination are capitalized.
Environmental costs, accrued environmental liabilities and expenditures to
mitigate or eliminate future environmental contamination for each of the
years in the three-year period ended December 31, 1998 were not significant
to the consolidated financial statements. The Company's estimated liability
for environmental remediation is not discounted.
CASH FLOWS are computed using the indirect method. For cash flow purposes,
the Company considers all highly liquid debt instruments with an original
maturity of less than three months at the date of purchase to be cash
equivalents. All cash presented as restricted cash in the Company's
financial statements was due to requirements of the Company's debt
agreements.
DOLLAR AMOUNTS presented in the tabulations within the notes to the
Company's financial statements are stated in thousands of dollars, unless
otherwise indicated.
RECENT STATEMENTS OF FINANCIAL ACCOUNTING STANDARDS ("SFAS") include the
following: (effective for all fiscal quarters of fiscal years beginning
after June 15, 1999) SFAS No. 133, "Accounting for Derivative Instruments
and Hedging Activities." Management is currently studying this SFAS item
for its possible impact on the consolidated financial statements. On April
3, 1998, the American Institute of Certified Public Accountants issued
Statement of Position ("SOP") 98-5, "Reporting on the Costs of Start-Up
Activities." For years beginning after December 15, 1998, SOP 98-5 requires
that all start-up costs of a business activity be charged to expense as
incurred and any start-up cost previously deferred should be written off as
a cumulative effect of a change in accounting principle. Based on the
assessment of SOP 98-5, SOP 98-5 will not have a material impact on the
consolidated financial statements except for a $4.5 million noncash write-
off at January 1, 1999 of the unamortized balance of deferred start-up
costs of Belvieu Environmental Fuels, in which the Company owns a 33-1/3%
economic interest. Such a write-off would cause a $1.5 million reduction in
the equity in income of unconsolidated affiliates for 1999 and a
corresponding reduction in the Company's investment in unconsolidated
affiliates.
INCOME PER UNIT is based on the amount of income allocated to limited
partners and the weighted-average number of Common Units and Subordinated
Units outstanding during the
F-8
<PAGE>
period. The Company has no dilutive securities outstanding; accordingly, no
diluted net income per Unit is presented.
2. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment and accumulated depreciation are as follows:
<TABLE>
<CAPTION>
Estimated
Useful Life in
Years 1997 1998
--------------------------------------------------
<S> <C> <C> <C>
Plants and pipelines............................. 5-35 $599,047 $611,994
Underground and other storage facilities......... 5-35 79,744 89,064
Transportation equipment......................... 3-35 12,393 3,043
Land............................................. 12,783 12,362
Construction in progress......................... 12,627 3,879
---------------------------
Total................................. 716,594 720,342
Less accumulated depreciation.................... 202,867 220,549
---------------------------
Property, plant and equipment, net............... $513,727 $499,793
===========================
</TABLE>
3. INVESTMENTS IN AND ADVANCES TO UNCONSOLIDATED AFFILIATES
At December 31, 1998, the Company's significant unconsolidated affiliates
which were accounted for using the equity method included the following:
Belvieu Environmental Fuels ("BEF") - a 33-1/3% economic interest in a
Methyl Tertiary Butyl Ether ("MTBE") production facility.
Mont Belvieu Associates ("MBA") - a 49% economic interest in an entity
which owns a 50% interest in a NGL fractionation facility.
Baton Rouge Fractionators, LLC ("BRF") - a 27.5% economic interest in a
NGL fractionation facility which is under construction and scheduled to
begin production during the second quarter of 1999.
EPIK Terminalling L.P. and EPIK Gas Liquids, LLC (collectively, "EPIK") -
a 50% aggregate economic interest in a refrigerated NGL marine terminal
loading facility which is under construction.
Other joint ventures included various entities in the formation stage at
December 31, 1998.
F-9
<PAGE>
Following is a summary of the Company's investments in and advances to
unconsolidated affiliates and the equity in income of unconsolidated affiliates:
Investments in and advances to unconsolidated affiliates at:
<TABLE>
<CAPTION>
December 31, 1997 December 31, 1998
------------------------------------------
<S> <C> <C>
BEF.................................................. $41,278 $50,079
MBA.................................................. 11,963 12,551
BRF.................................................. 2,634 17,896
EPIK................................................. 5,667
Other................................................ 4,928
------------------------------------------
Total.......................................... $55,875 $91,121
==========================================
</TABLE>
Equity in income of unconsolidated affiliates for the:
<TABLE>
<CAPTION>
Years Ended December 31,
---------------------------------------------------
1996 1997 1998
---------------------------------------------------
<S> <C> <C> <C>
BEF........................... $ 9,752 $ 9,305 $ 9,801
MBA........................... 6,004 6,377 5,213
BRF........................... (91)
EPIK.......................... 748
---------------------------------------------------
Total................... $15,756 $15,682 $15,671
===================================================
</TABLE>
At December 31, 1998, the Company's share of accumulated earnings of
unconsolidated affiliates that had not been remitted to the Company was $33
million.
F-10
<PAGE>
Following is selected financial data for the most significant investments of the
Company:
BEF
BEF is owned equally (33-1/3%) by Mitchell Gas Services, L.P. ("Mitchell"), SUN
BEF, Inc. ("SUN BEF") and the Company. Mitchell Energy & Development Corp. is
Mitchell's ultimate parent company, and Sun Company, Inc. ("Sun") is SUN BEF's
ultimate parent company. Following is condensed financial data for BEF:
<TABLE>
<CAPTION>
At December 31,
----------------------------------------
BALANCE SHEET DATA: 1997 1998
----------------------------------------
<S> <C> <C>
Current assets.............................................. $ 40,189 $ 34,268
Property, plant and equipment, net.......................... 182,945 172,281
Other assets................................................ 18,323 13,684
----------------------------------------
Total assets............................................. $241,457 $220,233
========================================
Current liabilities......................................... $ 57,344 $ 54,326
Long-term debt.............................................. 58,667 19,556
Other liabilities........................................... 2,950 1,798
Partners' equity............................................ 122,496 144,553
----------------------------------------
Total liabilities and partners' equity................... $241,457 $220,233
========================================
</TABLE>
<TABLE>
<CAPTION>
Years Ended December 31,
----------------------------------------------------------
1996 1997 1998
----------------------------------------------------------
<S> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues...................................... $217,438 $233,218 $182,001
Expenses...................................... 188,182 205,300 152,600
----------------------------------------------------------
Net income................................ $ 29,256 $ 27,918 $ 29,401
==========================================================
</TABLE>
BEF's owners are required under isobutane supply contracts to provide their pro
rata share of BEF's monthly isobutane requirements. If the MTBE plant's
isobutane requirements exceed 450,000 barrels for any given month, each of the
owners retains the right, but not the obligation, to supply at least one-third
of the additional isobutane needed. The purchase price for the isobutane (which
generally approximates the established market price) is based on contracts
between the owners.
BEF has a ten-year off-take agreement through May 2005 under which Sun is
required to purchase all of the plant's MTBE production. Through May 31, 2000,
Sun pays the higher of a contractual floor price or market price (as defined
within the agreement) for floor production (193,450,000 gallons per year) and
the market price for production in excess of 193,450,000 gallons per year,
subject to quarterly adjustments on certain excess volumes. At floor production
levels, the contractual floor price is a price sufficient to cover essentially
all of BEF's operating costs plus principal and interest payments on its bank
term loan. Market price is (a) toll fee price (cost of feedstock plus
approximately $0.484 per gallon during the first two contract years ended
May 31, 1997) and (b) at Sun's option, the toll fee price (cost of feedstock
plus approximately $0.534 per gallon) or the U.S. Gulf Coast Posted Contract
Price for the period from June 1, 1997 through May 31, 2000. For purposes of
computing the toll fee price, the feedstock component is based on the Normal
Butane Posted Price for the month plus the average purchase price paid by BEF to
acquire methanol consumed by the facility during the month. In addition, the
floor or market price determined above will be increased by $0.03 per gallon in
the third and fourth contract years and by about $0.04 per gallon in the fifth
contract year. Beginning June 1, 2000, through the remainder of the agreement,
the price for all production will be based on a market-related negotiated price.
F-11
<PAGE>
The contracted floor price paid by Sun for production in 1996, 1997 and 1998
exceeded the spot market price for MTBE. At December 31, 1998, the floor price
paid for MTBE by Sun was $.78 per gallon. The average Gulf Coast MTBE spot
market price was $.46 per gallon for December 1998 and $.64 per gallon for all
of 1998.
Substantially all revenues earned by BEF are from the production of MTBE which
is sold to Sun. This concentration could impact BEF's exposure to credit risk;
however, such risk is reduced since Sun has an equity interest in BEF.
Management believes BEF is exposed to minimal credit risk. BEF does not require
collateral for its receivables from Sun.
Long-term debt of BEF consists of a five-year, floating interest rate (London
Interbank Offered Rate ["LIBOR"] plus .0875%) bank term note payable ($58.7
million outstanding at December 31, 1998) which is due in equal quarterly
installments of $9.8 million through May 31, 2000. The weighted-average interest
rate on this debt for the year ended December 31, 1998 was 6.60%. The debt is
non-recourse debt to the partners. BEF had an interest rate cap agreement (based
on a LIBOR rate of 7%) with a notional amount of $13 million at December 31,
1998. The interest rate cap agreement provides that the notional amount will
decrease by $4.5 million each quarter through May 1999. BEF intends to hold the
contract through its expiration date and use it as a means of fixing a portion
of the interest on the term note payable. While the notional amount is used to
express the magnitude of an interest rate cap agreement, the amount subject to
credit risk, in the event of nonperformance by a third party, is substantially
less. Management does not expect any significant impact to its financial
position as a result of nonperformance by a third party. The interest rate cap
did not have a significant effect on the net interest rate that BEF recognized
for 1996, 1997 or 1998.
The bank term loan agreement contains restrictive covenants prohibiting or
limiting certain actions of BEF, including partner distributions, and requiring
certain actions by BEF, including the maintenance of specified levels of
leverage, as defined, and approval by the banks of certain contracts.
Distributions to partners in the amount of $7.3 million were made for the year
ended December 31, 1998. In addition, the loan agreement requires BEF to
restrict a certain portion of cash to pay for the plant's turnaround maintenance
and long-term debt service. At December 31, 1997 and 1998, cash of $13.1 million
and $11.1 million, respectively, was restricted under terms of the loan
agreement. BEF was in compliance with the restrictive covenants at December 31,
1998. The long-term debt is collateralized by substantially all of BEF's assets.
F-12
<PAGE>
MBA
Kinder Morgan Natural Gas Liquids Corporation owns 50%, the Company owns 49% and
EPCO owns 1% of Mont Belvieu Associates. Following is the condensed financial
data for MBA:
<TABLE>
<CAPTION>
At December 31,
----------------------------------------
BALANCE SHEET DATA: 1997 1998
----------------------------------------
<S> <C> <C>
Current assets............................................... $ 6,125 $ 4,756
Property, plant and equipment, net........................... 45,774 44,205
Other assets................................................. 79 1,687
----------------------------------------
Total assets.............................................. $51,978 $50,648
========================================
Current liabilities.......................................... $ 4,479 $ 1,582
Long-term debt............................................... 11,790 11,790
Other liabilities............................................ 130
Partners' equity............................................. 35,709 37,146
----------------------------------------
Total liabilities and partners' equity.................... $51,978 $50,648
========================================
</TABLE>
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------------------------------------------
1996 1997 1998
------------------------------------------------------------
<S> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues................................... $26,954 $33,646 $31,881
Expenses................................... 16,347 23,034 22,280
------------------------------------------------------------
Net income............................... $10,607 $10,612 $ 9,601
============================================================
</TABLE>
Long-term debt of MBA represents an $11.6 million bank term note which is
payable over a six-year amortization schedule and a balloon payment in December
2001 of $3 million. Interest on the bank term note payable bears interest at
LIBOR plus 0.75%. The weighted-average interest rate was 5.79% at December 31,
1998. The loan is nonrecourse to the partners and is secured by MBA's rights
under the operating agreement of the facility with the joint owners. The bank
agreement contains no restrictions on the payment of distributions to the
partners. Also included in long-term debt is a $0.2 million note payable to
EPCO.
All of MBA's revenues are derived from NGL fractionation services to customers
in the Gulf Coast area. This concentration could impact MBA's exposure to credit
risk since these customers could be affected by similar economic or other
conditions. Management, however, believes MBA is exposed to minimal credit risk.
MBA generally does not require collateral for its receivables.
BRF
BRF is a joint venture among Amoco Louisiana Fractionator Company, Williams Mid-
Stream Natural Gas Liquids, Inc., Exxon Chemical Louisiana LLC ("Exxon") and the
Company. At December 31, 1998, the joint venture agreement was not finalized.
The ownership interests in BRF will be based on the amounts contributed by each
member to fund certain capital expenditures. Exxon will fund a small portion of
the construction costs but will contribute other NGL assets. At December 31,
1998, included in investments in and advances to unconsolidated affiliates, the
Company recorded 27.5% of the $0.3 million operating loss as a result of
certain start-up expenses incurred during the developmental stage.
F-13
<PAGE>
BRF is an NGL fractionation facility under construction near Baton Rouge,
Louisiana, which will have a 60,000 barrel per day capacity. The Company is the
operator of the facility, which will service NGL production from the
Mobile/Pascagoula and Louisiana areas. Following is the condensed balance sheet
data for BRF:
<TABLE>
<CAPTION>
At December 31,
-----------------------------------------
1997 1998
-----------------------------------------
<S> <C> <C>
Current assets.............................................. $2,511 $ 2,386
Construction in progress.................................... 4,634 58,618
Other....................................................... 3
-----------------------------------------
Total assets............................................. $7,145 $61,007
=========================================
Current liabilities......................................... $3,379 $ 8,222
Members' equity............................................. 3,766 52,785
-----------------------------------------
Total liabilities and members' equity.................... $7,145 $61,007
=========================================
</TABLE>
EPIK
EPIK is a joint venture among EPIK Gas Liquids LLC ("Gas Liquids"), the 1%
general partner, the Operating Partnership and Idemitsu LPG USA Corporation
("Idemitsu"). The Operating Partnership and Idemitsu each are 49.5% limited
partners. EPIK was formed to construct and own refrigerated NGL marine
terminal loading facilities. The Operating Partnership operates the facilities
for EPIK and acts as the contractor for construction of the assets.
Construction of certain assets was completed during 1998, and EPIK began their
operations in June 1998. EPIK expects the remaining construction to be
completed during the fourth quarter of 1999. Following is the condensed
financial data for EPIK as of and for the year ended December 31, 1998:
<TABLE>
<CAPTION>
BALANCE SHEET DATA:
<S> <C>
Current assets............................................... $ 1,332
Property, plant and equipment, net........................... 11,939
--------------------
Total assets.............................................. $13,271
====================
Current liabilities.......................................... $ 36
Partners' equity............................................. 13,235
--------------------
Total liabilities and partners' equity.................... $13,271
====================
</TABLE>
<TABLE>
<CAPTION>
INCOME STATEMENT DATA:
<S> <C>
Revenues..................................................... $3,962
Expenses..................................................... 2,200
--------------------
Net income.............................................. $1,762
====================
</TABLE>
F-14
<PAGE>
4. NOTES RECEIVABLE FROM UNCONSOLIDATED AFFILIATES
On July 31, 1998, the Company purchased a participation interest in bank loans
of MBA and BEF for $33.7 million.
Participation interest in the MBA bank note receivable totaled approximately
$7.7 million at the time of the purchase. The MBA note receivable bears
interest at a floating rate per annum at LIBOR plus 0.75% and matures on
December 31, 2001. The Company will receive monthly principal payments,
aggregating approximately $1.7 million per year, plus interest from MBA during
the term of the loan with an additional $1.8 million lump sump payment upon
maturity in December 2001.
Participation interest in the BEF bank note receivable totaled $26.1 million at
the time of purchase. The BEF note receivable bears interest at a floating rate
per annum at LIBOR plus 0.0875% and matures on May 31, 2000. The Company will
receive quarterly principal payments of approximately $3.3 million plus interest
from BEF during the term of the loan.
5. LONG-TERM DEBT
On July 31, 1998, the Company entered into a $200 million revolving credit
agreement (the "Bank Revolver") with a bank syndicate. The Bank Revolver is
due on July 31, 2000 and bears interest at various rates based on the bank's
prime rate, three-month certificate of deposit rate, as defined, federal funds
effective rate or Eurodollar rate. The Company elects the basis for the
interest rate at the time of each borrowing. Interest rates ranged from 6.25% to
6.69% during 1998, and the weighted-average interest rate at December 31, 1998
was 6.45%.
Long-term debt consisted of the following:
<TABLE>
<CAPTION>
At December 31,
-----------------------------------------
1997 1998
-----------------------------------------
<S> <C> <C>
Bank Revolver.............................................. $90,000
Insurance Companies:
Secured notes (five separate series), with interest from
8.82% to 12.10% at December 31, 1997, retired during
1998.................................................... $ 65,395
Senior notes (seven separate series), with interest from
8.04% to 12.10% at December 31, 1997, retired during
1998.................................................... 160,345
Subordinated note, with interest at 9.3% at December 31,
1997, retired during 1998............................... 4,497
-----------------------------------------
Total........................................... 230,237 90,000
Less current maturities of long-term debt.................. 14,903
-----------------------------------------
Long-term debt............................................. $215,334 $90,000
=========================================
</TABLE>
The Bank Revolver contains restrictive covenants prohibiting or limiting certain
actions of the Company, including payment of cash distributions to owners,
making of certain investments and incurring any additional debt. Additionally,
the Bank Revolver requires certain actions by the Company including the
maintenance of specified levels of working capital and tangible net worth, as
defined by the agreement. The Company was in compliance with these restrictive
covenants at December 31, 1998.
At December 31, 1998, the Company had $30 million of standby letters of credit
available, and approximately $0.7 million of letters of credit were outstanding
under letter of credit agreements with the banks.
F-15
<PAGE>
Extraordinary Item--Early Extinguishment of Debt
On July 31, 1998, the Company used $243.3 million of proceeds from the sale of
Common Units and $13.3 million of borrowings from the Bank Revolver to retire
$256.6 million of debt that was assumed from EPCO. In connection with the
repayment of the debt, the Company was required to pay a "make-whole payment" of
$26.3 million to the lenders. The $26.3 million (plus $0.9 million of
unamortized debt costs) is included in the consolidated statement of operations
for the year ended December 31, 1998 as "Extraordinary item--early
extinguishment of debt."
6. PARTNERS' CAPITAL AND CASH DISTRIBUTIONS
At December 31, 1998, the Company had 45.6 million Common Units and 21.4 million
Subordinated Units outstanding (collectively, "Units").
The Subordinated Units have no voting rights until the Units are converted into
Common Units at the end of the Subordination Period (as defined below).
The Agreement of Limited Partnership of the Company (the "Partnership
Agreement") contains specific provisions for the allocation of net earnings and
losses to the Common Units, Subordinated Units and the General Partner. The
Partnership Agreement also sets forth the calculation to be used to determine
the amount and priority of cash distributions that the Common Unitholders,
Subordinated Unitholders and the General Partner will receive.
The Company intends, to the extent there is sufficient available cash from
Operating Surplus, as defined by the Partnership Agreement, to distribute to
each holder of Common Units at least a minimum quarterly distribution of $0.45
per Common Unit. The minimum quarterly distribution is not guaranteed and is
subject to adjustment as set forth in the Partnership Agreement. With respect to
each quarter during the subordination period, which will generally not end
before June 30, 2003, the Common Unitholders will generally have the right to
receive the minimum quarterly distribution, plus any arrearages thereon, and the
General Partner will have the right to receive the related distribution on its
interest before any distributions of available cash from Operating Surplus are
made to the Subordinated Unitholders. During the year ended December 31, 1998,
the Company declared cash distributions of $.32 per Unit as of October 30, 1998
on all partnership interests.
The Subordination Period for the Subordinated Units will generally extend until
the first day of any quarter beginning after June 30, 2003 when the Conversion
Test has been satisfied. Generally, the Conversion Test will have been
satisfied when the Company has paid from Operating Surplus and generated from
Adjusted Operating Surplus the minimum quarterly distribution on all Units for
the three preceding four-quarter periods. Upon expiration of the Subordination
Period, all remaining Subordinated Units will convert into Common Units on a
one-for-one basis and will thereafter participate pro rata with the other Common
Units in distributions of Available Cash.
If the Conversion Test has been met for any quarter ending on or after June 30,
2001, 25% of the Subordinated Units will convert into Common Units. If the
Conversion Test has been met for any quarter ending on or after June 30, 2002,
an additional 25% of the Subordinated Units will convert into Common Units. The
early conversion of the second 25% of Subordinated Units may not occur until at
least one year following the early conversion of the first 25% of Subordinated
Units.
The Partnership Agreement generally authorizes the Company to issue an unlimited
number of additional limited partner interests and other equity securities of
the Company for such consideration and on such terms and conditions as shall be
established by the General Partner in its sole discretion without the approval
of the Unitholders. During the Subordination Period, however, the Company may
not issue equity securities ranking senior to the Common Units for an aggregate
of more than 22,775,000 Common Units (except for Common Units upon conversion of
Subordinated Units, pursuant to employee benefit plans, upon conversion of the
general partner interest as a result of the withdrawal of the General Partner or
in connection with acquisitions or
F-16
<PAGE>
capital improvements that are accretive on a per Unit basis) or an equivalent
number of securities ranking on a parity with the Common Units, without the
approval of the holders of at least a Unit Majority. A Unit Majority is defined
as at least a majority of the outstanding Common Units (during the Subordination
Period), excluding Common Units held by the General Partner and its affiliates,
and at least a majority of the outstanding Common Units (after the Subordination
Period).
7. MAJOR CUSTOMERS
A customer owns a 45.4% undivided interest in a plant and the related pipeline
system and it leases such undivided interest in these facilities to the
Company. The agreement with the customer expires in 2004. There are two
successive options to extend the term for 12 years each remaining under the
original agreement. Revenues from sales to this customer were approximately
$114.1 million, $147.6 million and $102.2 million for 1996, 1997 and 1998,
respectively.
In addition, the Company has supply, transportation and storage contracts with
another customer which expire in 2003. Under the supply contract, the Company
sells approximately 390,000 barrels of isobutane per month to the customer.
Under the transportation contract, the Company delivers the product sold at a
transportation fee of approximately 0.75 cents per gallon. Storage fees are
charged at a rate of 7.5 cents per gallon for any product held for the customer
and then subsequently sold to third parties. Revenues from sales to this
customer were approximately $113.4 million, $107.3 million and $64.4 million for
1996, 1997 and 1998, respectively.
8. RELATED PARTY TRANSACTIONS
The Company has no employees. All management, administrative and operating
functions are performed by employees of EPCO. Operating costs and expenses
include charges for EPCO's employees who operate the Company's various
facilities. Such charges are based on EPCO's actual salary costs and related
fringe benefits. Because the Company's operations constitute the most
significant portion of EPCO's consolidated operations, selling, general and
administrative expenses reported in the accompanying statements of consolidated
operations for all periods before the public offering include all such expenses
incurred by EPCO less amounts directly incurred by other subsidiaries or
operating divisions of EPCO.
In connection with the initial public offering, EPCO, the General Partner and
the Company entered into the EPCO Agreement pursuant to which (i) EPCO agreed to
manage the business and affairs of the Company and the Operating Partnership;
(ii) EPCO agreed to employ the operating personnel involved in the Company's
business for which EPCO is reimbursed by the Company at cost; (iii) the Company
and the Operating Partnership agreed to participate as named insureds in EPCO's
current insurance program, and costs are allocated among the parties on the
basis of formulas set forth in the agreement; (iv) EPCO agreed to grant an
irrevocable, nonexclusive worldwide license to all of the trademarks and trade
names used in its business to the Company; (v) EPCO agreed to indemnify the
Company against any losses resulting from certain lawsuits; and (vi) EPCO agreed
to sublease all of the equipment which it holds pursuant to operating leases
relating to an isomerization unit, a deisobutanizer tower, two cogeneration
units and approximately 100 rail cars to the Company for $1 per year and
assigned its purchase options under such leases to the Company (hereafter
referred to as "Retained Leases".) Pursuant to the EPCO Agreement, EPCO is
reimbursed at cost for all expenses that it incurs in connection with managing
the business and affairs of the Company, except that EPCO is not entitled to be
reimbursed for any selling, general and administrative expenses. In lieu of
reimbursement for such selling, general and administrative expenses, EPCO
receives an annual administrative services fee that initially equals $12.0
million. The General Partner, with the approval and consent of the Audit and
Conflicts Committee of the Company, can agree to increases in such
administrative services fee of up to 10% each year during the ten-year term of
the EPCO Agreement and may agree to further increases in such fee in
F-17
<PAGE>
connection with expansions of the Company's operations through the construction
of new facilities or the completion of acquisitions that require additional
management personnel.
EPCO also operates all plants owned by the unconsolidated affiliates and charges
them for actual salary costs and related fringe benefits. In addition, EPCO
charged the unconsolidated affiliates for management services provided; such
charges aggregated $1.1 million for 1996, $1.1 million for 1997 and $2.1 million
for 1998. Since EPCO pays the rental charges for the Retained Leases, such
payments are considered a contribution by EPCO for the benefit of each
partnership interest and are included as such in Partners' Equity, and a
corresponding charge for the rental expense is included in the consolidated
statements of operations. Rental expense, included in operating costs and
expenses, for the Retained Leases was $11.4 million, $13.3 million and $13.9
million (of which $4.0 million occurred after the public offering) for 1996,
1997 and 1998, respectively.
The Company also has transactions in the normal course of business with the
unconsolidated affiliates and other subsidiaries and divisions of EPCO. Such
transactions include the buying and selling of NGL products, loading of NGL
products and transportation of NGL products by truck. Following is a summary
of significant transactions with related parties:
<TABLE>
<CAPTION>
For the Years Ended
December 31
----------------------------------------------
1996 1997 1998
----------------------------------------------
<S> <C> <C> <C>
Revenues from NGL products sold to:
Unconsolidated affiliates............................ $41,653 $44,392 $36,474
Other EPCO subsidiaries.............................. 10,292 19,029 19,531
Cost of NGL products purchased from:
Unconsolidated affiliates............................ 7,339 8,453 9,270
Other EPCO subsidiaries.............................. 3,944 6,495 5,293
Operating expenses charged for trucking
of NGL products..................................... 9,114 7,606 4,704
Administrative service fee charged by EPCO............. 5,129
</TABLE>
9. COMMITMENTS AND CONTINGENCIES
Storage Commitments
The Company stores NGL products for EPCO and various third parties. Under the
terms of the storage agreements, the Company is generally required to redeliver
to the owner its NGL products upon demand. The Company is insured for any
physical loss of such NGL products due to catastrophic events. At December 31,
1998, NGL products aggregating 337 million gallons were due to be redelivered to
the owners under various storage agreements.
Lease Commitments
The Company leases certain processing facilities under noncancelable leases.
Minimum future rental payments on such leases with terms in excess of one year
at December 31, 1998 are as follows:
<TABLE>
<S> <C>
1999................................................................... $ 4,468
2000................................................................... 4,456
2001................................................................... 4,455
2002................................................................... 4,251
2003................................................................... 4,252
Thereafter............................................................. 4,251
-----------
Total minimum obligations................................... $26,133
===========
</TABLE>
F-18
<PAGE>
Lease expense charged to operations (including Retained Leases) for the years
ended December 1996, 1997 and 1998 was approximately $26.3 million, $29.6
million and $18.5 million, respectively.
Capital Expenditure Commitments
As of December 31, 1998, the Company had capital expenditure commitments
totaling approximately $11.1 million, the majority of which relates to the
construction of projects of unconsolidated affiliates.
Litigation
EPCO has indemnified the Company against any litigation arising from events or
actions prior to its formation. The Company is sometimes named as a defendant in
litigation relating to its normal business operations. Although the Company
insures itself against various business risks, to the extent management believes
it is prudent, there is no assurance that the nature and amount of such
insurance will be adequate, in every case, to indemnify the Company against
liabilities arising from future legal proceedings as a result of its ordinary
business activity. Management is aware of no significant litigation, pending or
threatened, that would have a significantly adverse effect on the Company's
financial position or results of operations.
10. FAIR VALUE OF FINANCIAL INSTRUMENTS
The following disclosure of estimated fair value was determined by the Company,
using available market information and appropriate valuation methodologies.
Considerable judgment, however, is necessary to interpret market data and
develop the related estimates of fair value. Accordingly, the estimates
presented herein are not necessarily indicative of the amounts that the Company
could realize upon disposition of the financial instruments. The use of
different market assumptions and/or estimation methodologies may have a material
effect on the estimated fair value amounts.
Cash and Cash Equivalents, Accounts Receivable, Participation in Notes
Receivable from Unconsolidated Affiliates, Accounts Payable, Accrued Expenses
and Long-Term Debt are carried at amounts which reasonably approximate their
fair value at year end.
F-19
<PAGE>
11. SUPPLEMENTAL CASH FLOWS DISCLOSURE
The net effect of changes in operating assets and liabilities is as follows:
<TABLE>
<CAPTION>
Year Ended December 31,
--------------------------------------------------------
1996 1997 1998
--------------------------------------------------------
<S> <C> <C> <C>
(Increase) decrease in:
Accounts receivable......................... $(34,763) $ 29,024 $ 3,699
Inventories................................. 5,947 7,329 1,361
Prepaids and other current assets........... 100 917 (342)
Other assets................................ 295 127 46
Increase (decrease) in:
Accounts payable--trade..................... 35,187 (3,320) (40,005)
Accrued gas payable......................... 21,650 (26,955) (18,485)
Accrued expenses............................ 6,286 (5,526) (1,098)
Other current liabilities................... (4,684) 1,352 (10,082)
--------------------------------------------------------
Net effect of changes in operating accounts.... $ 30,018 $ 2,948 $(64,906)
========================================================
Cash payments for interest, net of $1,569,
$2,005 and $180 capitalized in 1996, 1997
and 1998, respectively...................... $ 30,156 $ 28,352 $ 6,971
========================================================
</TABLE>
During 1998, the Company contributed $1.9 million (at net book value) of plant
equipment to an unconsolidated affiliate as part of its investment therein.
12. CONCENTRATION OF CREDIT RISK
A substantial portion of the Company's revenues is derived from the
fractionation, isomerization, propylene production, marketing, storage and
transportation of NGLs to various companies in the NGL industry, primarily
located in the United States. Although this concentration could affect the
Company's overall exposure to credit risk since these customers might be
affected by similar economic or other conditions, management believes the
Company is exposed to minimal credit risk, since the majority of its business is
conducted with major companies within the industry and much of the business is
conducted with companies with whom the Company has joint operations. The Company
generally does not require collateral for its accounts receivables.
13. SUBSEQUENT EVENTS
Grantor Trust
Effective January 12, 1999, the Operating Partnership established a revocable
grantor trust (the "Trust") with an initial deposit of $1 million. The purpose
of the Trust is to purchase Common Units of the Company to fund future
liabilities of a Long-Term Incentive Plan (the "Plan"). Provisions of the Plan
were not finalized as of February 15, 1999. The Company intends to consolidate
the Trust into its financial statements and disclose the Common Units held by
the Trust in a manner similar to a purchase of treasury stock under the cost
method of accounting. At February 15, 1999, the Trust had purchased a total of
267,200 Common Units at a cost of $4.8 million.
F-20
<PAGE>
Sorrento Pipeline Lease Agreement
Effective January 1, 1999, Sorrento Pipeline Company, LLC ("Sorrento"), a wholly
owned subsidiary of the Operating Partnership, entered into a lease agreement
(the "Agreement") with Entell NGL Services ("Entell"). Entell is a joint
venture between Sorrento and Tejas NGL Pipelines, LLC. Under terms of the
Agreement, Sorrento will lease the Sorrento System (as defined in the Agreement)
to Entell for a period of ten years for approximately $1.6 million per year.
14. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
(Amounts in thousands except per Unit data)
<TABLE>
<CAPTION>
First Quarter Second Quarter Third Quarter Fourth Quarter
For the Year Ended December 31, 1997:
<S> <C> <C> <C> <C>
Revenues $255,652 $245,380 $268,974 $250,275
Operating income 19,880 12,966 9,728 17,579
Income before minority interest 18,585 12,364 7,475 14,266
Minority interest (186) (123) (75) (143)
Net income 18,399 12,241 7,400 14,123
Net Income per Unit $ .33 $ .22 $ .13 $ .25
For the Year Ended December 31, 1998:
Revenues $190,517 $207,566 $164,620 $176,199
Operating income 3,316 14,925 7,672 8,613
Income (loss) before extraordinary
item and minority interest (319) 15,399 9,802 12,473
Extraordinary item and minority
interest 3 (154) (27,002) (125)
Net income (loss) (316) 15,245 (17,200) 12,348
Per Unit Data:
Earnings (loss) before extraordinary
item $ (.01) $ .28 $ .15 $ .18
Extraordinary item (.42)
Net income (loss) $ (.01) $ .27 $ (.27) $ .18
</TABLE>
F-21
<PAGE>
Independent Auditors' Report
Belvieu Environmental Fuels:
We have audited the accompanying balance sheets of Belvieu Environmental Fuels
("BEF") as of December 31, 1997 and 1998, and the related statements of
operations, cash flows and partners' equity for each of the years in the three-
year period ended December 31, 1998. These financial statements are the
responsibility of BEF's management. Our responsibility is to express an opinion
on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such financial statements present fairly, in all material
respects, the financial position of Belvieu Environmental Fuels at December 31,
1997 and 1998, and the results of its operations and its cash flows for each of
the years in the three-year period ended December 31, 1998 in conformity with
generally accepted accounting principles.
DELOITTE & TOUCHE LLP
Houston, Texas
February 15, 1999
F-22
<PAGE>
BELVIEU ENVIRONMENTAL FUELS
BALANCE SHEETS
(Amounts in Thousands)
<TABLE>
<CAPTION>
December 31,
------------------------------------------
1997 1998
------------------------------------------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents, including restricted cash of $13,071
and $11,144 in 1997 and 1998, respectively $ 22,522 $ 18,603
Accounts receivable - trade 283 268
Due from affiliates 11,239 9,225
Inventories 2,444 2,242
Prepaid expenses 3,701 3,930
------------------------------------------
Total current assets 40,189 34,268
PROPERTY, PLANT AND EQUIPMENT, Net 182,945 172,281
DEFERRED START-UP COSTS, Net 8,061 4,479
PROCESS LICENSING FEES, Net 10,019 9,166
OTHER ASSETS 243 39
------------------------------------------
TOTAL $241,457 $220,233
==========================================
LIABILITIES AND PARTNERS' EQUITY
CURRENT LIABILITIES
Current maturities of long-term debt $ 39,111 $ 39,111
Accounts payable - trade 4,237 1,930
Accrued expenses 1,919 2,914
Accrued turnaround costs 6,973 5,812
Due to affiliates 5,104 4,559
------------------------------------------
Total current liabilities 57,344 54,326
LONG-TERM DEBT 58,667 19,556
OTHER LIABILITIES 2,950 1,798
COMMITMENTS AND CONTINGENCIES
------------------------------------------
PARTNERS' EQUITY 122,496 144,553
------------------------------------------
TOTAL $241,457 $220,233
==========================================
</TABLE>
See Notes to Financial Statements
F-23
<PAGE>
BELVIEU ENVIRONMENTAL FUELS
STATEMENTS OF OPERATIONS
(Amounts in Thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------------------------------
1996 1997 1998
-----------------------------------------------------------------
<S> <C> <C> <C>
REVENUES $217,438 $233,218 $182,001
-----------------------------------------------------------------
COST AND EXPENSES
Cost of goods sold 173,677 193,254 143,109
Amortization of deferred start-up costs 3,624 3,583 3,583
General and administrative expenses 869 1,282 1,379
-----------------------------------------------------------------
Total 178,170 198,119 148,071
-----------------------------------------------------------------
OPERATING INCOME 39,268 35,099 33,930
-----------------------------------------------------------------
OTHER INCOME (EXPENSE)
Interest expense (10,709) (8,004) (5,409)
Interest Income 672 832 892
Other, net 25 (9) (12)
-----------------------------------------------------------------
Total other income (expense) (10,012) (7,181) (4,529)
-----------------------------------------------------------------
NET INCOME $ 29,256 $ 27,918 $ 29,401
=================================================================
</TABLE>
See Notes to Financial Statements
F-24
<PAGE>
BELVIEU ENVIRONMENTAL FUELS
STATEMENTS OF CASH FLOWS
(Amounts in Thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------------
1996 1997 1998
-----------------------------------------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income $ 29,256 $ 27,918 $ 29,401
Adjustments to reconcile net income to cash flows
provided by operating activities:
Depreciation and amortization 15,373 15,518 15,536
Effects of changes in operating accounts:
Accounts receivable - trade 1,093 94 15
Due from affiliates (9,236) 6,271 2,014
Inventories (4) (283) 202
Prepaid expenses (44) (55) (229)
Other assets 260 260 204
Accounts payable - trade 3,763 (5,486) (2,307)
Accrued expenses (3,080) 459 995
Accrued turnaround costs (256) 6,720 (1,161)
Due to affiliates (8,609) 350 (545)
Other liabilities 7 2,279 (1,152)
-----------------------------------------------
Operating activities cash flows 28,523 54,045 42,973
-----------------------------------------------
INVESTING ACTIVITIES
Capital expenditures, net (239) (128) (437)
Deferred start-up costs incurred (275)
-----------------------------------------------
Investing activities cash flows (514) (128) (437)
-----------------------------------------------
FINANCING ACTIVITIES
Long-term debt repayments (39,111) (39,111) (39,111)
Contributions from partners 3,000
Distributions to partners (7,344)
-----------------------------------------------
Financing activities cash flows (36,111) (39,111) (46,455)
-----------------------------------------------
CHANGE IN RESTRICTED CASH FOR:
Plant turnaround maintenance 1,142 (9,759) 2,187
Debt service 1,487 (20) (260)
-----------------------------------------------
Change in restricted cash 2,629 (9,779) 1,927
-----------------------------------------------
NET CHANGE IN CASH AND CASH EQUIVALENTS (5,473) 5,027 (1,992)
CASH AND CASH EQUIVALENTS, JANUARY 1 9,897 4,424 9,451
-----------------------------------------------
CASH AND CASH EQUIVALENTS, DECEMBER 31
(Excluding restricted cash of $3,292 in 1996, $13,071 in 1997
and $11,144 in 1998) $ 4,424 $ 9,451 $ 7,459
===============================================
SUPPLEMENTAL CASH FLOW DISCLOSURE
Cash payments for interest $ 12,029 $ 7,844 $ 4,945
===============================================
</TABLE>
See Notes to Financial Statements
F-25
<PAGE>
BELVIEU ENVIRONMENTAL FUELS
STATEMENTS OF PARTNERS' EQUITY
(Amounts in Thousands)
<TABLE>
<S> <C>
Partners' Equity, January 1, 1996 $ 62,322
Net Income 29,256
Contributions from partners 3,000
-----------------
Partners' Equity, December 31, 1996 94,578
Net Income 27,918
-----------------
Partners' Equity, December 31, 1997 122,496
Net Income 29,401
Distributions to partners (7,344)
-----------------
Partners' Equity, December 31, 1998 $144,553
=================
</TABLE>
See Notes to Financial Statements
F-26
<PAGE>
BELVIEU ENVIRONMENTAL FUELS
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BELVIEU ENVIRONMENTAL FUELS ("BEF") is a Texas general partnership that owns and
operates an isobutane dehydrogenation and Methyl Tertiary Butyl Ether ("MTBE")
production facility (the "Facility") in Texas. At December 31, 1998, Mitchell
Gas Services, L.P. ("Mitchell"), SUN BEF, Inc. ("SUN BEF") and Enterprise
Products Operating L.P. (the "Operating Partnership") each owned a one-third
interest in BEF.
Mitchell Energy & Development Corp. is Mitchell's ultimate parent company; Sun
Company, Inc. ("Sun") is SUN BEF's ultimate parent company; and Enterprise
Products Company ("EPCO") is the Operating Partnership's ultimate parent. The
above companies, who own a portion of BEF, are hereafter collectively referred
to as the "Partners."
INVENTORIES, consisting of MTBE and methanol feedstocks used in the production
of MTBE, are carried at the lower of cost or market. Cost for MTBE inventories
is computed using the average cost method, while cost for methanol feedstocks is
computed using the last in first out ("LIFO") method. The LIFO reserve on
methanol feedstocks was $6,207 and $537,546 at December 31, 1997 and 1998,
respectively.
EXCHANGES are movements of methanol between parties to satisfy timing and
logistical needs of the parties. Methanol borrowed from BEF under product
exchange agreements is included in receivables at the year-end average posted
price, and methanol loaned to BEF under product exchange agreements is accrued
as a liability at the year-end average posted price.
PROPERTY, PLANT AND EQUIPMENT is stated at cost. Depreciation is computed
using the straight-line method over 20 years. Costs of major maintenance
shutdowns at the Facility (turnaround costs) are accrued over the estimated
period between turnarounds.
DEFERRED START-UP COSTS are the costs to modify and replace certain equipment
and the net costs and expenses in excess of revenues from the sales of products
that BEF incurred during the Facility's start-up phase. Such costs are being
amortized over a five-year period. Accumulated amortization for the deferred
start-up costs was $6.3 million, $9.9 million and $13.4 million at December 31,
1996, 1997 and 1998, respectively. See Note 2 for recently issued accounting
standards.
PROCESS LICENSING FEES are fees paid to the designer of the process that the
Facility uses to produce MTBE. Such fees are being amortized on a straight-line
basis over a period of 15 years. Accumulated amortization for the process
licensing fees was $1.4 million, $2.2 million and $3.1 million at December 31,
1996, 1997 and 1998, respectively.
INCOME TAXES are not provided because BEF's taxable income is reported directly
by the Partners.
CASH FLOWS are computed using the indirect method. For cash flow purposes, BEF
considers all highly liquid debt instruments with an original maturity of less
than three months at the date of purchase to be cash equivalents.
USE OF ESTIMATES AND ASSUMPTIONS by management that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of revenues and
expenses during the reporting period are required for the preparation of
financial statements in conformity with generally accepted accounting
principles. Actual results could differ from these estimates.
F-27
<PAGE>
INTEREST RATE CAP AGREEMENTS are used as a hedge against potential interest rate
increases in BEF's long-term debt; accordingly, when interest rates exceed the
cap rate, a reduction to interest expense is recorded based on the rate
differential and the outstanding notional amount. The costs of the agreements
are being amortized over the lives of the agreements.
DOLLAR AMOUNTS presented in the tabulations within the notes to BEF's financial
statements are stated in thousands of dollars, unless otherwise indicated.
CASH DISTRIBUTIONS to the partners are made in accordance with their partnership
interests.
Certain reclassifications have been made to the prior years' financial
statements to conform to the presentation of the current period financial
statements.
2. RECENTLY ISSUED ACCOUNTING STANDARDS
On April 3, 1998, the American Institute of Certified Public Accountants issued
Statement of Position ("SOP") 98-5, "Reporting on the Costs of Start-Up
Activities." For years beginning after December 15, 1998, SOP 98-5 requires
that all start-up costs of a business activity be charged to expense as incurred
and any start-up costs previously deferred should be written off as a cumulative
effect of a change in accounting principle. At January 1, 1999, BEF will
record a $4.5 million noncash write-off of the unamortized balances of deferred
start-up costs. Statement of Financial Accounting Standards ("SFAS") No. 133,
"Accounting for Derivative Instruments and Hedging Activities" is effective for
all fiscal quarters of fiscal years beginning after June 15, 1999. Management
is currently studying this SFAS item for possible impact on the financial
statements.
3. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment and accumulated depreciation were as follows:
<TABLE>
<CAPTION>
1997 1998
---------------------------------
<S> <C> <C>
Land....................................................... $ 577 $ 577
Property, plant and equipment.............................. 221,720 222,135
Construction in progress................................... 34 56
---------------------------------
Total property............................................. 222,331 222,768
Accumulated depreciation .................................. (39,386) (50,487)
---------------------------------
Property, net.............................................. $182,945 $172,281
=================================
</TABLE>
4. LONG-TERM DEBT
BEF's long-term debt consists of a five-year term loan with a bank syndicate.
The debt is payable in quarterly installments of $9.8 million. Maturities of
long-term debt at December 31, 1998 are as follows: $39.1 million in 1999 and
$19.6 million in 2000. Interest on such debt is at a base rate plus a specified
margin for each base interest rate available under the agreement. BEF
periodically elects the base interest rate using various standard bank rates
(banks' prime rate, fixed certificate of deposit rate, Eurodollar rate or the
London Interbank Offered Rate ["LIBOR"] ). The weighted-average interest rate
for the year ended December 31, 1998 was 6.6%.
At December 31, 1998, BEF had an interest rate cap agreement (based on a LIBOR
of 7%) with a notional amount of $13.4 million. The agreement provides that the
notional amount will decrease by $4.5 million each quarter through September
1999. BEF intends to hold the contract through its expiration date and use it
as a means of fixing the interest on a portion of the term note payable. While
the notional amount is used to express the magnitude of an interest rate cap
agreement, the amount potentially subject to credit risk (in the event of
nonperformance by a third party) is substantially smaller. BEF does not
anticipate any significant impact to its financial position as a
F-28
<PAGE>
result of nonperformance by a third party. The interest rate cap did not have a
significant effect on interest expense recognized by BEF in 1996, 1997 or 1998.
Long-term debt is collateralized by substantially all of the assets shown on the
accompanying balance sheets. The loan agreement with the banks contains
restrictive covenants prohibiting or limiting certain actions of BEF, including
partner distributions, and requiring certain actions by BEF, including the
maintenance of specified levels of debt-to-equity ratio and approval by the
banks of certain contracts. In addition, the loan agreement requires BEF to
restrict a certain portion of cash to pay for the plant's turnaround maintenance
and long-term debt service. Such amounts are presented on the accompanying
balance sheets as restricted cash. BEF was in compliance with the restrictive
covenants at December 31, 1998.
5. COMMITMENTS AND CONTINGENCIES
BEF has methanol supply contracts with three independent suppliers. Under terms
of the contracts, the suppliers have generally agreed to supply BEF with a
portion of its monthly methanol requirements. BEF has no obligation to take any
minimum volumes of methanol under these contracts. The price paid to the
suppliers for methanol purchased is generally determined at the beginning of
each month; such price is expected to approximate the posted monthly market
price for methanol.
6. FAIR VALUE OF FINANCIAL INSTRUMENTS
The following disclosure of estimated fair value was determined by BEF, using
available market information and appropriate valuation methodologies.
Considerable judgment, however, is necessary to interpret market data and
develop the related estimates of fair value. Accordingly, the estimates
presented herein are not necessarily indicative of the amounts that BEF could
realize upon disposition of the financial instruments. The use of different
market assumptions and/or estimation methodologies could have a material effect
on the estimated fair value amounts.
Cash and Cash Equivalents, Accounts Receivable - Trade, Accounts Payable -
Trade, Accrued Expenses, and Long-Term Debt are carried at amounts that
approximate their fair value.
The Interest Rate Cap Agreement is valued at amortized cost. Fair value is based
on estimates obtained from a dealer and was $4,800 at December 31, 1997 and zero
at December 31, 1998.
7. CONCENTRATION OF CREDIT RISK
Substantial portions of BEF's revenues are derived from the production and sales
of MTBE to Sun, who also operates in the same industry, primarily located in the
United States. Although this concentration could affect BEF's overall exposure
to credit risk since this customer might be influenced by similar economic or
other conditions, management believes BEF is exposed to minimal credit risk,
since Sun is a partner in BEF.
8. RELATED PARTY TRANSACTIONS
The Operating Partnership has been designated by the Partners as the Facility's
operator. In addition, BEF sells the Operating Partnership by-products which
are recorded as an offset to cost of goods sold.
The Partners are required under isobutane supply contracts to provide their pro
rata share of BEF's monthly isobutane requirements. If the Facility's isobutane
requirements exceed 450,000 barrels for any given month, SUN BEF and Mitchell
retain the right, but not the obligation, to supply at least one-third of the
additional isobutane needed. The purchase price for the isobutane (which
generally approximates the established market price) is based on contracts with
the Partners. Payables related to the isobutane purchases are included in
accounts payable and accrued expenses in the accompanying balance sheets.
F-29
<PAGE>
BEF has a ten-year off-take agreement with Sun. Under terms of the amended
agreement (dated August 16, 1995), Sun is required to purchase all of the
Facility's MTBE production. Through May 31, 2000, Sun pays the higher of floor
price or market price (as defined within the agreement) for the floor production
(193,450,000 gallons per year or 530,000 gallons per day), the market price for
production between 530,000 and 588,000 gallons per day and Posted Spot Prices
for production in excess of 588,000 gallons per day. At floor production
levels, the floor price is a price sufficient to cover essentially all operating
costs plus principal and interest payments on the bank term loan. Market price
is (a) the toll fee price (cost of feedstock plus approximately $0.484 per
gallon during the first two contract years ended May 31, 1997) and (b) at Sun's
option, the toll fee price (cost of feedstock plus approximately $0.534 per
gallon) or the U.S. Gulf Coast Posted Contract Price for the period from June 1,
1997 through May 31, 2000. For purposes of computing the toll fee price, the
feedstock component is based on the Normal Butane Posted Price for the month
plus the average purchase price paid by BEF to acquire methanol consumed by the
Facility during the month. In addition, the floor or market price determined
above will be increased by $0.03 per gallon in the third and fourth contract
years and by about $0.04 per gallon in the fifth contract year. Beginning
June 1, 2000, through the remainder of the agreement, the price for all
production will be based on a market-related negotiated price. The contracted
floor price paid by SUN for production in 1996, 1997 and 1998 exceeded the spot
market price for MTBE. At December 31, 1998 the floor price paid for MTBE by SUN
was $.78 per gallon. The average Gulf Coast MTBE spot price was $.46 per gallon
for December 1998 and $.64 per gallon for all of 1998.
The following is a summary of transactions with related companies (amounts in
thousands):
<TABLE>
<CAPTION>
For the Year Ended December 31,
---------------------------------------------------
STATEMENTS OF OPERATIONS: 1996 1997 1998
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Sales of MTBE $217,438 $233,218 $182,001
Cost of goods sold 113,337 113,962 83,426
General and administrative expenses paid to EPCO 518 539 552
</TABLE>
F-30
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized, in the City of Houston,
State of Texas, on the 11th day of March, 1999.
ENTERPRISE PRODUCTS PARTNERS L.P.
(A Delaware Limited Partnership)
By: Enterprise Products GP, LLC,
as General Partner
By: /s/ O.S. Andras
---------------------------------
Name: O.S. Andras
Title: President and Chief Executive Officer
of Enterprise Products GP, LLC
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated below on the 11th day of March, 1999.
Signature Title
/s/ Dan L. Duncan Chairman of the Board and Director
- -------------------------------
Dan L. Duncan
/s/ O.S. Andras President, Chief Executive Officer and
- ------------------------------- Director
O.S. Andras
/s/ Randa L. Duncan Group Executive Vice President and
- ------------------------------- Director
Randa L. Duncan
/s/ Gary L. Miller Executive Vice President, Chief Financial
- ------------------------------- Officer, Treasurer and Director (Principal
Gary L. Miller Financial and Accounting Officer)
/s/ Dr. Ralph S. Cunningham Director
- -------------------------------
Dr. Ralph S. Cunningham
/s/ Lee W. Marshall Director
- -------------------------------
Lee W. Marshall, Sr.
S-1
<PAGE>
EXHIBIT 4.2
CREDIT AGREEMENT
Among
ENTERPRISE PRODUCTS OPERATING L.P.,
the Several Banks from Time to Time Parties Hereto,
DEN NORSKE BANK ASA,
and
BANK OF TOKYO-MITSUBISHI, LTD., HOUSTON AGENCY
as Co-Arrangers,
THE BANK OF NOVA SCOTIA,
as Co-Arranger and as Documentation Agent
and
THE CHASE MANHATTAN BANK
as Co-Arranger and as Agent
Dated as of July 27, 1998
and
as Amended and Restated as of September 30, 1998
CHASE
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1. DEFINITIONS............................................................................. 1
1.1 Defined Terms.............................................................................. 1
1.2 Other Definitional Provisions.............................................................. 14
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS.............................................. 14
2.1 Revolving Credit Commitments............................................................... 14
2.2 Revolving Credit Notes..................................................................... 15
2.3 Procedure for Borrowing under Revolving Credit Commitments................................. 15
2.4 Termination, Reduction or Extension of Revolving Credit Commitments........................ 16
SECTION 3. LETTERS OF CREDIT....................................................................... 16
3.1 Letter of Credit Commitments............................................................... 16
3.2 Issuance and Continuation of Letters of Credit............................................. 17
3.3 Participating Interests.................................................................... 17
3.4 Reimbursement Obligation of the Company.................................................... 17
3.5 Letter of Credit Payments.................................................................. 18
3.6 Increased Costs............................................................................ 18
3.7 Nature of Obligations; Indemnities......................................................... 18
3.8 Purpose of the Letters of Credit........................................................... 20
3.9 Applications............................................................................... 20
SECTION 4. GENERAL PROVISIONS APPLICABLE TO FINANCING FACILITIES................................... 20
4.1 Optional Prepayments....................................................................... 20
4.2 Commitment Fees............................................................................ 20
4.3 Letter of Credit Commissions............................................................... 21
4.4 Conversion Options; Minimum Amount of Revolving Credit Loans............................... 21
4.5 Minimum Amounts of Eurodollar Tranches..................................................... 22
4.6 Interest Rate, Payment Dates and Lending Offices........................................... 22
4.7 Computation of Interest and Fees........................................................... 22
4.8 Inability to Determine Interest Rate....................................................... 23
4.9 Pro Rata Treatment and Payments............................................................ 23
4.10 Illegality................................................................................. 24
4.11 Requirements of Law........................................................................ 24
4.12 Taxes...................................................................................... 26
4.13 Indemnity.................................................................................. 26
SECTION 5. REPRESENTATIONS AND WARRANTIES.......................................................... 27
5.1 Financial Condition........................................................................ 27
5.2 No Change.................................................................................. 27
5.3 Existence; Compliance with Law............................................................. 27
5.4 Power; Authorization; Enforceable Obligations.............................................. 27
5.5 No Legal Bar............................................................................... 28
5.6 No Default................................................................................. 28
5.7 Investments and Guaranties................................................................. 28
5.8 Liabilities; Litigation.................................................................... 28
5.9 Taxes; Governmental Charges................................................................ 28
5.10 Titles, etc................................................................................ 28
5.11 Intellectual Property...................................................................... 28
5.12 Casualties; Taking of Properties........................................................... 29
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5.13 Use of Proceeds; Margin Stock; No Financing of Corporate Takeovers......................... 29
5.14 Compliance with Law........................................................................ 30
5.15 ERISA...................................................................................... 29
5.16 Investment Company Act; Other Regulations.................................................. 30
5.17 Accuracy and Completeness of Information................................................... 30
5.18 Public Utility Holding Company Act......................................................... 30
5.19 Subsidiaries............................................................................... 30
5.20 Location of Business and Offices........................................................... 31
5.21 Neither the Company Nor Subsidiary is a Utility............................................ 31
5.22 Year 2000 Matters.......................................................................... 31
SECTION 6. AFFIRMATIVE COVENANTS................................................................... 31
6.1 Financial Statements and Reports of the Company............................................ 31
6.2 Annual Certificates of Compliance.......................................................... 32
6.3 Quarterly Certificates of Compliance; Projections.......................................... 33
6.4 Notice of Certain Events................................................................... 34
6.5 ERISA Information.......................................................................... 34
6.6 Taxes and Other Liens...................................................................... 35
6.7 Maintenance................................................................................ 35
6.8 Insurance.................................................................................. 35
6.9 Payment of Expenses and Taxes.............................................................. 36
6.10 Accounts and Records....................................................................... 37
6.11 Right of Inspection........................................................................ 37
6.12 Payment of Obligations..................................................................... 37
6.13 Environmental Laws......................................................................... 37
6.14 Clean-Down................................................................................. 38
SECTION 7. NEGATIVE COVENANTS...................................................................... 38
7.1 Limitation on Debt......................................................................... 38
7.2 Limitation on Liens........................................................................ 39
7.3 Limitations on Fundamental Changes......................................................... 39
7.4 Limitation on Sale of Assets............................................................... 39
7.5 Limitation on Dividends.................................................................... 40
7.6 Limitation on Investments.................................................................. 40
7.7 Limitation on Optional Payments and Modifications of Debt Instruments and Other Agreements. 41
7.8 Limitation on Transactions with Affiliates................................................. 41
7.9 Limitation on Sales and Leasebacks......................................................... 41
7.10 Limitation on Changes in Fiscal Year....................................................... 42
7.11 Limitation on Lines of Business............................................................ 42
7.12 Constituent Documents...................................................................... 42
7.13 Limitation on Restrictions Affecting Subsidiaries.......................................... 42
7.14 Creation of Subsidiaries................................................................... 42
7.15 Hazardous Materials........................................................................ 42
7.16 New Partners............................................................................... 42
7.17 Holding Companies.......................................................................... 42
7.18 Actions by Permitted Joint Ventures........................................................ 43
7.19 Hedging Transactions....................................................................... 43
7.20 ERISA Compliance........................................................................... 43
7.21 Financial Condition Covenants.............................................................. 43
SECTION 8. EVENTS OF DEFAULT....................................................................... 44
8.1 Events..................................................................................... 44
8.2 Remedies................................................................................... 46
8.3 Right of Set-off........................................................................... 46
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SECTION 9. CONDITIONS OF LENDING................................................................... 47
9.1 Conditions to Initial Revolving Credit Loans and Letters of Credit......................... 47
9.2 Conditions to Each Revolving Credit Loan and Letter of Credit.............................. 49
SECTION 10. THE AGENT.............................................................................. 50
10.1 Appointment................................................................................ 50
10.2 Delegation of Duties....................................................................... 50
10.3 Exculpatory Provisions..................................................................... 50
10.4 Reliance by Agent.......................................................................... 50
10.5 Notice of Default.......................................................................... 51
10.6 Non-Reliance on Agent and Other Banks...................................................... 51
10.7 Indemnification............................................................................ 51
10.8 Agent in Its Individual Capacity........................................................... 52
10.9 Successor Agent............................................................................ 52
SECTION 11. MISCELLANEOUS.......................................................................... 52
11.1 Notices.................................................................................... 52
11.2 Amendments and Waivers..................................................................... 53
11.3 Invalidity................................................................................. 52
11.4 Successors and Assigns; Participations; Purchasing Banks................................... 52
11.5 No Waiver; Cumulative Remedies............................................................. 55
11.6 Payment of Expenses and Taxes.............................................................. 55
11.7 GOVERNING LAW.............................................................................. 56
11.8 Several Obligations........................................................................ 56
11.9 Interest................................................................................... 56
11.10 Governmental Regulation.................................................................... 57
11.11 Entire Agreement........................................................................... 57
11.12 Exhibits................................................................................... 57
11.13 Titles of Sections and Subsections......................................................... 57
11.14 Number of Documents........................................................................ 57
11.15 SUBMISSION TO JURISDICTION; WAIVERS........................................................ 57
11.16 Interpretation............................................................................. 58
11.17 Counterparts............................................................................... 58
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<PAGE>
SCHEDULES
Schedule I - Commitments
Schedule II - Existing Letters of Credit
Schedule 5.7 - Investments
Schedule 5.10 - Titles, etc.
Schedule 5.19 - Subsidiaries
Schedule 5.21 - Utility
Schedule 7.1 - Other Debt
Schedule 7.2 - Other Liens
Schedule 7.8 - Transactions with Affiliates
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B-1 - Snell & Smith Opinion
Exhibit B-2 - Opinion of Michael R. Johnson, Esq.
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Commitment Transfer Supplement
<PAGE>
CREDIT AGREEMENT dated as of July 27, 1998 (and as amended and
restated as of September 30, 1998) among Enterprise Products Operating L.P., a
Delaware limited partnership (the "Company"), the several banks from time to
time parties hereto (collectively, the "Banks"; individually, a "Bank"), The
Chase Manhattan Bank, Den norske Bank ASA, The Bank of Nova Scotia and Bank of
Tokyo-Mitsubishi, Ltd., Houston Agency as Co-Arrangers, The Bank of Nova Scotia,
as Documentation Agent, and The Chase Manhattan Bank ("Chase"), as agent for the
Banks hereunder (in such capacity, the "Agent").
W I T N E S S E T H:
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
have the following meanings:
"Affiliate": any Person (other than a Subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, the Company. For purposes of this definition, a Person shall be
deemed to be "controlled by" the Company if the Company possesses, directly
or indirectly, power either to (i) vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person
or (ii) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Aggregate L/C Outstandings": at a particular time, the sum of (a)
the aggregate amount then available to be drawn under all outstanding
Letters of Credit issued for the account of the Company plus (b) the
aggregate amount of any payments made by the Agent under any Letter of
Credit for the account of the Company that have not been reimbursed by the
Company pursuant to subsection 3.5.
"Agreement": this Credit Agreement, as amended, supplemented or
modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the Agent as
its prime rate in effect at its principal office in New York City (each
change in the Prime Rate to be effective on the date such change is
publicly announced); "Base CD Rate" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by
the Board of Governors of the Federal Reserve System (the "Board") through
the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day
or such next preceding Business
<PAGE>
2
Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business
Day) by the Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it; and "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Agent from three federal funds brokers of recognized standing selected by
it. If for any reason the Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain
the Base CD Rate or the Federal Funds Effective Rate, or both, for any
reason, including the inability or failure of the Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) or (c), or both,
of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective on
the effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Alternate Base Rate.
"Applicable Margin": for each Revolving Credit Loan, the rate per
annum set forth below:
a) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company shows that the
Total Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was
less than or equal to 1.5 to 1, then the Applicable Margin, during the
period beginning on (and including) the date on which such Applicable
Margin Certificate was delivered by the Company to the Banks and ending on
(and excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be (i) with respect to Alternate Base Rate Loans, 0% and (ii) with respect
to Eurodollar Loans, .75%; and
b) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company shows that the
Total Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was
greater than 1.5 to 1 and less than or equal to 2.5 to 1, then the
Applicable Margin, during the period beginning on (and including) the date
on which such Applicable Margin Certificate was delivered by the Company to
the Banks and ending on (and excluding) the date on which the next
Applicable Margin Certificate is delivered by the Company to the Banks
pursuant to subsection 6.1(c), shall be (i) with respect to Alternate Base
Rate Loans, 0% and (ii) with respect to Eurodollar Loans, 1.00%;
c) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company shows that the
Total Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was
greater than 2.5 to 1, then the Applicable Margin, during the period
beginning on (and including) the date on which such Applicable Margin
Certificate was delivered by the Company to the Banks and ending on (and
excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the
<PAGE>
3
Banks pursuant to subsection 6.1(c), shall be (i) with respect to Alternate
Base Rate Loans, .375% and (ii) with respect to Eurodollar Loans, 1.375%;
provided if the Company shall fail to deliver the Applicable Margin
Certificate by the end of the fiscal quarter in which it is required, the
Applicable Margin for the next fiscal quarter shall be as provided in
clause (c) above; provided, further, that the Applicable Margin for the
period from the Closing Date until (and excluding) the date on which the
Company delivers to the Banks the Applicable Margin Certificate for the
fiscal quarter of the Company ended March 31, 1999, shall be, with respect
to Alternative Base Rate Loans, 0%, and with respect to Eurodollar Loans,
1.00%.
"Applicable Margin Certificate": as defined in subsection 6.1(c).
"Application": an application, in such form as the Agent may specify
from time to time, requesting the Agent to open a Letter of Credit.
"Available Investment Revolving Credit Commitment": as to any Bank,
at a particular time, an amount equal to the difference between (a) the
amount of such Bank's Investment Revolving Credit Commitment at such time
and (b) such Bank's Investment Revolving Extensions of Credit at such time.
"Available Revolving Credit Commitment": as to any Bank, at a
particular time, an amount equal to the sum of the Available Investment
Revolving Credit Commitment of such Bank and the Available Working Capital
Revolving Credit Commitment of such Bank.
"Available Working Capital Revolving Credit Commitment": as to any
Bank, at a particular time, an amount equal to the difference between (a)
the amount of such Bank's Working Capital Revolving Credit Commitment at
such time and (b) such Bank's Working Capital Loans outstanding at such
time.
"BEF Credit Agreement": the Amended and Restated Credit Agreement,
dated as of August 16, 1995, among Belvieu Environmental Fuels, the
financial institutions and other lenders from time to time parties thereto,
Chemical Bank, now known as The Chase Manhattan Bank, as agent, as amended,
supplemented or otherwise modified from time to time.
"BEF Participation": the interest of the Company in the loans
outstanding under the BEF Credit Agreement.
"Borrowing Date": any Business Day specified by the Company as the
Company requests the Banks to make Revolving Credit Loans thereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close.
"C/D Assessment Rate": for any day as applied to any Revolving Credit
Loan, the annual assessment rate (rounded upward to the nearest 1/100th of
1%) estimated by the Agent to be the then current net annual assessment
rate payable on such day to the Federal Deposit Insurance Corporation or
any successor ("FDIC") for FDIC's insuring time deposits made in Dollars at
offices of Chase in the United States.
"C/D Reserve Percentage": for any day as applied to any Revolving
Credit Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by
<PAGE>
4
the Board of Governors of the Federal Reserve System (or any successor),
for determining the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars in respect of new non-personal time deposits in Dollars in New York
City having a maturity of 60 days.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing. In addition, with respect to the Company, "Capital Stock" shall
include the limited partner interests of the Company and the General
Partner Interests and, with respect to the Limited Partner, "Capital Stock"
shall include the Units and the general partner interest of the Limited
Partner.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq.
"Change of Control": any of the following events:
(i) Dan Duncan (his wife, descendants and trusts for the benefit
of his wife and/or descendants and the heirs, legatees and distributees of
his estate) shall cease to own, directly or indirectly, (A) at least 51%
(on a fully converted, fully diluted basis) of the economic interest in the
Capital Stock of EPCO or (B) an aggregate number of shares of Capital Stock
of EPCO sufficient to elect a majority of the board of directors of EPCO;
(ii) EPCO shall cease to own 100% of the issued and outstanding
Capital Stock of EPC Partners II, Inc. ("EPC II");
(iii) EPC II (or another wholly owned Subsidiary of EPCO) shall
cease to own at least 95% of the outstanding membership interests in the
General Partner;
(iv) EPC II shall fail to own at least 51% of the outstanding Common Units;
(v) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), excluding EPC II, shall become, or obtain rights (whether
by means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of more than 20% of the outstanding Common Units;
(vi) the General Partner shall cease to be the general partner of
the Limited Partner or the Company; or
(vii) the Limited Partner shall cease to be the sole limited
partner of the Company.
"Chase": The Chase Manhattan Bank and its successors and assigns.
"Closing": the consummation of the transactions contemplated by this
Agreement to occur upon the initial satisfaction or waiver of the
conditions precedent set forth in subsection 9.1.
"Closing Date": the date on which the conditions set forth in
subsection 9.1 shall have been satisfied or waived.
<PAGE>
5
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commercial Letters of Credit": the commercial documentary letters of
credit, payable in Dollars, to be issued by the Agent hereunder for the
account of the Company in accordance with subsection 3.2.
"Commitment Percentage": as to any Bank at any time, the percentage
which such Bank's Revolving Credit Commitment then constitutes of the
aggregate Revolving Credit Commitments (or, at any time after the Revolving
Credit Commitments shall have expired or terminated, the percentage which
the aggregate principal amount of such Bank's Revolving Extensions of
Credit then outstanding constitutes of the aggregate principal amount of
the Revolving Extensions of Credit then outstanding).
"Commitment Period": the period from and including the Closing Date
to but not including the Revolving Credit Commitment Termination Date, or
such earlier date on which the Revolving Credit Commitment shall terminate
as provided herein.
"Commitment Transfer Supplement": a commitment transfer supplement,
substantially in the form of Exhibit E.
"Common Units": the common units of limited partner interests in the
Limited Partner.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Company within the meaning of
Section 4001 of ERISA.
"Consolidated Interest Expense": for any period, total interest
expense (including that attributable to capital lease obligations) of the
Company and its Subsidiaries for such period with respect to all
outstanding Debt of the Company and its Subsidiaries (including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net
costs under any hedging agreements to the extent such net costs are
allocable to such period in accordance with GAAP).
"Consolidated Net Income": for any period, the consolidated net
income of the Company and its Subsidiaries for such period after all
applicable taxes on income and profits payable by the Company as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Tangible Net Worth": at any date of determination, the
sum of preferred stock (if any), par value of common stock, capital in
excess of par value of common stock, partners' capital, and retained
earnings, less treasury stock (if any), less goodwill, cost in excess of
net assets acquired, deferred development costs and all other assets as are
not properly classified as tangible assets, all as determined on a
consolidated basis.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Debt": of any Person, without duplication: (i) all obligations of
such Person for borrowed money; (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments or by
any other securities providing for the mandatory payment of money
(including, without limitation, preferred stock subject to mandatory
<PAGE>
6
redemption or sinking fund provisions); (iii) all obligations of such
Person to pay the deferred purchase price of Property or services, except
(a) trade accounts payable in the ordinary course of business and (b)
obligations pursuant to minimum requirement contracts; (iv) all obligations
of such Person as lessee under Financing Leases; (v) all obligations of
such Person to purchase securities (or other Property) which arise out of
or in connection with the sale of the same or substantially similar
securities or Property, excluding time exchanges of Product; (vi) all
obligations of such Person in respect of letters of credit, banker's
acceptances, or similar obligations issued or created for the account of
such Person; (vii) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (i) through (vi) above; and
(viii) unfunded vested benefits under each Plan; provided that, with
respect to any Subsidiary, "Debt" also includes any preferred stock of such
Subsidiary which is not owned directly or indirectly by the Company valued
at the higher of its voluntary or involuntary liquidation value.
"Default": any of the events specified in subsection 8.1, whether or
not any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Lending Office": initially, the office of each Bank
designated as such in Schedule I; thereafter, such other office of such
Bank, if any, located within the United States which shall be making or
maintaining Alternate Base Rate Loans.
"EBITDA": shall mean, for any period, the sum (without duplication)
of (i) operating income of the Company, and its consolidated Subsidiaries
for such period plus (ii) depreciation and amortization for such period to
the extent not already included in the calculation of operating income plus
(iii) interest income during such period (excluding interest income in
respect of the BEF Participation and the MBA Participation), plus (iv) cash
distributions or dividends received by the Company during such period from
unconsolidated entities (including, without limitation, unconsolidated
Permitted Joint Ventures), plus (v) other cash income received by the
Company during such period, plus (vi) interest and principal payments
received by the Company with respect to the BEF Participation and the MBA
Participation, minus (vii) operating lease expense for such period to the
extent not already deducted in the calculation of operating income,
determined in each case, on a consolidated basis in accordance with GAAP.
EBITDA will not include any extraordinary, unusual or non-recurring gains
or losses from asset sales.
"Environmental Complaint": any complaint, order, citation, notice or
other written communication from any Governmental Authority with respect to
the existence or alleged existence of a violation of any Requirement of Law
or legal liability resulting from any air emission, water discharge, noise
emission, asbestos, Hazardous Substance at, upon, under or within any of
the property owned, operated or used by the Company or any of its
Subsidiaries.
"EPCO": Enterprise Products Company, a Texas corporation.
"EPCO Credit Agreement": as defined in subsection 9.1(g).
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended and as in effect from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of
<PAGE>
7
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves under any regulations
of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto), dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to any Eurodollar Loan for any
Interest Period, the rate per annum equal to the average (rounded upwards
to the nearest whole multiple of one sixteenth of one percent) of the rate
at which Chase's Eurodollar Lending Office is offered Dollar deposits two
Working Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations of such Eurodollar Lending Office are customarily
conducted at or about 10:00 A.M., New York City time, for delivery on the
first day of such Interest Period for the number of days comprised therein.
"Eurodollar Lending Office": initially, the office of each Bank
designated as such in Schedule I; thereafter, such other office of such
Bank, if any, which shall be making or maintaining Eurodollar Loans.
"Eurodollar Loans": Revolving Credit Loans hereunder at such time as
they are made and/or being maintained at a rate of interest based upon the
Eurodollar Rate.
"Eurodollar Rate": with respect to any Eurodollar Loan for any
Interest Period, a rate per annum determined for such day in accordance
with the following formula (rounded upwards to the nearest whole multiple
of 1/100th of one percent):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
having the same Interest Period (whether or not originally made on the same
day).
"Event of Default": any of the events specified in subsection 8.1,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, event or act has been satisfied.
"Excepted Liens": (i) Liens for taxes, assessments or other
governmental charges or levies not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company in conformity
with GAAP; (ii) pledges or deposits in connection with workers'
compensation, unemployment insurance or other social security, old age,
disability or similar legislation; (iii) legal or equitable encumbrances
deemed to exist by reason of negative pledge or negative mortgage covenants
(such as that made in subsection 7.2 hereof) and other covenants or
undertakings of like nature; (iv) legal or equitable encumbrances deemed to
exist by reason of the existence of any litigation or other legal
proceeding or arising out of a judgment or award with respect to which an
appeal is being prosecuted (for so long as the Properties subject to such
encumbrances are not subject to levy or other enforcement action, due to
the posting of a bond to gain stay of execution or for any other
appropriate reason); (v) vendors', carriers', warehousemen's, repairmen's,
mechanics', workmen's, materialmen's, construction or other like Liens
arising by operation of law in the ordinary course of business or incident
to the construction or improvement of any Property in respect of
obligations which are not yet due or which are being contested in good
faith by appropriate proceedings by or on behalf of the Company or any
<PAGE>
8
Subsidiary, provided that adequate reserves with respect thereto are
maintained on the books of the Company in conformity with GAAP; (vi)
easements, restrictions, rights of way and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are
not substantial in amount and which do not in any case materially detract
from the value of the property subject thereto or materially interfere with
the ordinary conduct of the business of the Company; (vii) Liens securing
the purchase price of automobiles, office equipment or other equipment of
the Company or any Subsidiary, provided that (A) such Lien shall not extend
to or cover any other Property of the Company or any Subsidiary, and (B)
the principal amount of the borrowing secured by any such Lien shall at no
time exceed 80% of the purchase price of the automobiles, office equipment
or other equipment acquired; and (viii) precautionary filings of financing
statements under the applicable Uniform Commercial Code made by (A) a
lessor with respect to personal property leased to the Company or a
Subsidiary or (B) an owner of raw make or Product with respect to raw make
or Product being fractionated, processed, transported or stored, as the
case may be, by the Company or a Subsidiary.
"Existing Credit Agreement": the Credit Agreement dated as of
September 28, 1995, among EPCO, The Chase Manhattan Bank, as Agent, and the
financial institutions parties thereto, as amended, modified or
supplemented to the Closing Date.
"Existing Letters of Credit": the letters of credit issued by the
Existing Agent for the account of the Company under the Existing Credit
Agreement prior to the Closing Date and listed on Schedule II.
"Facilities": those assets comprising the liquid hydrocarbon
fractionation plants and related equipment located near Mont Belvieu,
Chambers County, Texas, including without limitation any and all personal
property, tanks, machinery, fixtures, appliances, pipes, valves, fittings,
computers and all equipment and materials relating thereto or used in
connection therewith, electrical equipment, meters, gauges, monitors, and
any other equipment or material of any nature whatsoever used in the
fractionation operation of such plants, together with all alterations,
additions, enlargements, revisions, substitutions or replacements of any
kind as may be constructed or acquired in connection with such plants.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the United States
of America, consistently applied, and in force from time to time.
"General Partner": Enterprise Products GP, LLC, a Delaware limited
liability company.
"General Partner Interest": all general partner interests in the
Company.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Debt, leases, dividends
or other obligations (the "primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether
<PAGE>
9
or not contingent (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance
or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
or (d) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be the lower of (i) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (ii) the maximum amount for
which the guarantor may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such Person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall
be such Person's maximum reasonably anticipated liability in respect
thereof as determined by the Company in good faith.
"Hazardous Substance": as defined in subsection 6.2(c)(i).
"Indebtedness": at a particular time, any and all amounts owing or to
be owing, directly or indirectly, by the Company to the Agent or any of the
Banks in connection with this Agreement, the Revolving Credit Notes, the
Letters of Credit or any other Loan Documents.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the
last Business Day of each March, June, September and December, commencing
on September 30, 1998, (b) as to any one, two or three month Eurodollar
Loan, the last day of the Interest Period with respect thereto and (c) as
to any six month Eurodollar Loan, the date which is three months after the
Borrowing Date or conversion date with respect thereto and the last day of
the Interest Period with respect thereto.
"Interest Period": (a) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect to any
Eurodollar Loans and ending one, two, three or six months thereafter, as
selected by the Company in its notice of borrowing as provided in
subsection 2.3 or its notice of conversion as provided in subsection
4.4(a), as the case may be; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loans and ending
one, two, three or six months thereafter, as selected by the Company by
irrevocable notice to the Agent not less than three Working Days prior to
the last day of the then current Interest Period with respect to such
Eurodollar Loans; provided that, all of the foregoing provisions relating
to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day which is
not a Working Day, that Interest Period shall be extended to the next
succeeding Working Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Working Day;
(ii) no Interest Period shall extend beyond the Revolving Credit
Commitment Termination Date;
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10
(iii) if the Company shall fail to give notice as provided
above, the Company shall be deemed to have selected an Alternate Base Rate
Loan to replace the affected Eurodollar Loan;
(iv) any Interest Period that begins on the last Working Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Working Day of a calendar month; and
(v) the Company shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an Interest
Period for such Loan.
"Investment": as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of stock or other securities
of or any partnership interest in any other Person, or any direct or
indirect loan, advance or capital contribution by such Person to any other
Person, including all Debt and accounts receivable from such other Person
which are nor current assets or did not arise from sales to such other
Person in the ordinary course of business, and any direct or indirect
purchase or other acquisition by such Person of any assets (other than any
acquisition of assets in the ordinary course of business).
"Investment Revolving Credit Commitment": as to any Bank, its
obligation to make Investment Revolving Credit Loans pursuant to subsection
2.1(a) in an aggregate principal amount not to exceed the amount set forth
opposite such Bank's name in Schedule I under the caption "Investment
Revolving Credit Commitment", as the same may be reduced pursuant to
subsection 2.4, collectively, as to all the Banks, the "Investment
Revolving Credit Commitments". The original aggregate amount of the
Investment Revolving Credit Commitments is $150,000,000.
"Investment Revolving Credit Loan" and "Investment Revolving Credit
Loans": as defined in subsection 2.1(b).
"Investment Revolving Extensions of Credit": as to any Bank at any
time, an amount equal to the sum of (a) the aggregate principal amount of
all Investment Revolving Credit Loans made by such Bank then outstanding
and (b) such Bank's Commitment Percentage of the Aggregate L/C Outstandings
then outstanding.
"Letters of Credit": the collective reference to the Existing Letters
of Credit, the Commercial Letters of Credit and the Standby Letters of
Credit.
"Lien": with respect to any assets, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement,
Financing Lease or other title retention agreement relating to such asset.
"Limited Partner": Enterprise Products Partners L.P., a Delaware
limited partnership.
"Loan Documents": this Agreement and the Revolving Credit Notes and
the Letters of Credit, as any of such agreements may be amended or
supplemented from time to time.
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11
"Management Agreement": the EPCO Agreement, dated as of July 31,
1998, between EPCO, the General Partner, the Limited Partner and the
Company as amended, modified or supplemented from time to time in
accordance with subsection 7.8.
"Material Adverse Effect": any material adverse effect on (i) the
business, operations, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole, (ii) the
ability of the Company and its Subsidiaries taken as a whole to meet its
obligations under or in respect of the Loan Documents or the Letters of
Credit on a timely basis or (iii) the validity or enforceability of the
Loan Documents or the Letters of Credit or the rights and remedies of the
Banks hereunder or thereunder.
"Material Environmental Amount": an amount payable by the Company
and/or its Subsidiaries in excess of $15,000,000 for remedial costs,
compliance costs, compensatory damages, punitive damages, fines, penalties
or any combination thereof.
"Maximum Rate": as defined in subsection 11.9(a).
"MBA Participation": the interest of the Company in the loans
outstanding under the Multiple Draw Term Loan Agreement, dated as of July
19, 1996, among Mont Belvieu Associates, the financial institutions and
other lenders from time to time parties thereto and The Chase Manhattan
Bank, as agent, as amended, supplemented or otherwise modified from time to
time.
"Multiemployer Plan": a Plan which is a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA.
"Participants": as defined in subsection 11.4(b).
"Partnership Agreement": the Agreement of Limited Partnership of the
Company among the General Partner and the Limited Partner substantially in
the form previously provided to the Banks, as amended, modified and
supplemented from time to time in accordance with subsection 7.7.
"PBGC": the Pension Benefit Guaranty Corporation or any successor
established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Joint Ventures": any arrangement (including, without
limitation, a partnership, limited liability company, corporation or
association but excluding any such entity which had or has securities that
are publicly traded) whereby the Company and/or one or more of its
Subsidiaries on the one hand, and a Person or Persons other than the
Company, an Affiliate of the Company or any of its Subsidiaries, on the
other, directly or indirectly hold interests in an asset or group of assets
(the "JV Assets") that are being operated or are proposed to be operated by
one or more of such holders for the accounts of all such holders in
accordance with the terms of an operating agreement, ownership agreement,
corporate charter, articles of association, partnership agreement or other
customary similar type arrangement among such holders; provided that (a)
the operation of the JV Assets shall at all times constitute a business
similar to the businesses being conducted by the Company and its
Subsidiaries at the inception of the arrangement and (b) the relative
ownership interests in the JV Assets bear a reasonable relationship to the
relative capital contributions of the participations and their respective
partnerships in the operation of the JV Assets.
<PAGE>
12
"Person": any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof, or any other
form of entity.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company, any Subsidiary or a
Commonly Controlled Entity is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Product": all oil, gas and/or other hydrocarbons and petroleum
products and by-products, whether in liquid or gaseous form, now owned or
hereafter acquired by the Company or any Subsidiary including, without
limitation, propane, commercial butane, normal butane, isobutane and
ethane.
"Property": any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Purchasing Banks": as defined in subsection 11.4(c).
"Register": as defined in subsection 11.4(d).
"Reimbursement Obligation": an obligation of the Company to reimburse
the Agent pursuant to subsection 3.4.
"Release": as defined in subsection 6.2(c)(i).
"Relevant Environmental Laws": all Requirements of Law from time to
time applicable to any property owned, operated or used by the Company or
any of its Subsidiaries or any part thereof with respect to (a) the
installation, existence or removal of asbestos; (b) the existence,
discharge or removal of Hazardous Substances; (c) air emissions, water
discharges, noise emissions and any other environmental, health or safety
matters; and (d) effects on the environment of any of such properties or
any part thereof or of any activity heretofore, now or hereafter conducted
on any of such properties.
"Required Banks": the holders of more than 50% of the Revolving
Credit Commitments or, if the Revolving Credit Commitments have been
terminated, the aggregate principal amount of all Revolving Extensions of
Credit made by all of the Banks then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws, partnership agreement, limited liability company
agreement or other organizational or governing documents of such Person,
and any law, statute, code, ordinance, order, rule, regulation, judgment,
decree, injunction, franchise, permit, certificate, license, authorization
or other direction or requirement (including, without limitation, any of
the foregoing which relate to environmental standards or controls, energy
regulations and occupational, safety and health standards or controls) of
any (domestic or foreign) federal, state, county, municipal or other
government, department, commission, board, court, agency or any other
instrumentality of any of them, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": with respect to the Company, the Chairman of
the Board, chief executive officer, President, the chief operating officer
or any Executive, Senior or other Vice President or, with respect to
financial matters, the chief financial officer.
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13
"Revolving Credit Commitment": as to any Bank, the sum of its
Investment Revolving Credit Commitment and its Working Capital Revolving
Credit Commitment, collectively, as to all the Banks, the "Revolving Credit
Commitments".
"Revolving Credit Commitment Termination Date": July 31, 2000 as the
same may be extended pursuant to subsection 2.4.
"Revolving Credit Loan" and "Revolving Credit Loans": the individual
or collective reference to the Investment Revolving Credit Loans and the
Working Capital Revolving Credit Loans.
"Revolving Credit Note" and "Revolving Credit Notes": as defined in
subsection 2.2.
"Revolving Extensions of Credit": as to any Bank at any time, an
amount equal to the sum of (a) the Investment Revolving Extensions of
Credit of such Bank and (b) the aggregate principal amount of all Working
Capital Revolving Credit Loans made by such Bank then outstanding.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA but which is not a Multiemployer Plan.
"Standby Letters of Credit": the standby letters of credit, payable
in Dollars, to be issued by the Agent for the account of the Company in
accordance with subsection 3.2.
"Subordinated Units": the subordinated units of limited partner
interests in the Limited Partner.
"Subsidiary": any corporation, limited liability company or
partnership of which more than 50% of the issued and outstanding securities
or interests having ordinary voting power for the election of directors (or
persons having similar authority) is owned or controlled, directly or
indirectly, by the Company and/or one or more of its Subsidiaries.
"Taxes": as defined in subsection 4.12.
"Total Indebtedness/EBITDA Ratio": shall mean, for any fiscal quarter
of the Company, the ratio of Debt of the Company and its Subsidiaries as of
the last day of such fiscal quarter to EBITDA for the 12-month period ended
on the last day of such fiscal quarter.
"Transactions": the collective reference to the public offering of
Common Units and the issuance of the Subordinated Units by the Limited
Partner, the contribution of the net proceeds of the Common Units to the
Company and the use of the proceeds thereof by the Company, the various
transfers of assets to the Company on or prior to the Closing Date and the
financings contemplated hereby and the use of the proceeds thereof.
"Transferee": as defined in subsection 11.4(f).
"Type": as to any Revolving Credit Loan, its nature as an Alternate
Base Rate Loan or Eurodollar Loan.
"Units": the collective reference to the Common Units and the
Subordinated Units.
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14
"Working Capital Revolving Credit Commitment": as to any Bank, its
obligation to make Working Capital Revolving Credit Loans pursuant to
subsection 2.1(a) in an aggregate principal amount not to exceed the amount
set forth opposite such Bank's name in Schedule I under the caption
"Working Capital Revolving Credit Commitment", as the same may be reduced
pursuant to subsection 2.4, collectively, as to all the Banks, the "Working
Capital Revolving Credit Commitments". The original aggregate amount of
the Working Capital Revolving Credit Commitments is $50,000,000.
"Working Capital Revolving Credit Loan" and "Working Capital Revolving
Credit Loans": as defined in subsection 2.1(a).
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London, England.
1.2 Other Definitional Provisions. a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Revolving Credit Notes or any certificate or other documents
made or delivered pursuant hereto.
b) Where the character or amount of any asset or liability or item of
income or expense or capital expenditures is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, this shall be done in accordance with GAAP applied
on a basis consistent with those reflected by the Financial Statements, except
where such principles are inconsistent with the requirements of this Agreement.
All determinations of financial amounts on the consolidated basis of the Company
and its Subsidiaries shall make due allowance for any minority stock interest in
the Subsidiaries.
c) The Agent shall make such minor technical adjustments among the
Banks as may be necessary or appropriate with respect to the allocation of final
loans or repayments among the Banks in order that such loans and repayments of
the Revolving Credit Loans, the Letters of Credit or other Indebtedness, which
shall have been divided among the Banks on the basis of their Commitment
Percentages, correspond exactly to the loans or repayments of the Revolving
Credit Loans, the Letters of Credit or other Indebtedness severally due from or
to each Bank.
d) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section, subsection,
schedule and exhibit references are to this Agreement unless otherwise
specified.
e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS
2.1 Revolving Credit Commitments. a.) Subject to the terms and
conditions hereof, each Bank severally agrees to make revolving credit loans
(individually, a "Working Capital Revolving Credit Loan" and, collectively, the
"Working Capital Revolving Credit Loans") to the Company from time to time
during the Commitment Period, in an aggregate principal amount at any one time
outstanding not to exceed the Working Capital Revolving Credit Commitment of
such Bank, as such amount may be reduced as provided herein. During the
Commitment Period the Company may use the Working Capital Revolving Credit
Commitments by borrowing, prepaying the Working Capital Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
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15
b) Subject to the terms and conditions hereof, each Bank severally
agrees to make revolving credit loans (individually, an "Investment Revolving
Credit Loan" and, collectively, the "Investment Revolving Credit Loans") to the
Company from time to time during the Commitment Period, in an aggregate
principal amount at any one time outstanding which, when added to such Bank's
Commitment Percentage of the Aggregate L/C Outstandings then outstanding, shall
not exceed the Investment Revolving Credit Commitment of such Bank, as such
amount may be reduced as provided herein. During the Commitment Period the
Company may use the Investment Revolving Credit Commitments by borrowing,
prepaying the Investment Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
c) The Revolving Credit Loans may be (i) Eurodollar Loans, (ii)
Alternate Base Rate Loans or (iii) a combination thereof, as determined by the
Company and notified to the Agent in accordance with subsections 2.3 and 4.4;
provided that no Revolving Credit Loans shall mature after the Revolving Credit
Termination Date.
d) The Company shall repay all Revolving Credit Loans on the
Revolving Credit Termination Date.
2.2 Revolving Credit Notes. Upon request of any Bank, the Working
Capital Revolving Credit Loans and/or the Investment Revolving Credit Loans made
by such Bank shall be evidenced by a promissory note or notes of the Company,
substantially in the form of Exhibit A (individually, a "Revolving Credit Note"
and, collectively, the "Revolving Credit Notes") with appropriate insertions
therein, payable to the order of such Bank. Each Bank is hereby authorized to
record the date, type and amount of each Revolving Credit Loan made or converted
by such Bank, the date and amount of each payment or prepayment of principal
thereof, and in the case of Eurodollar Loans, the Interest Period and interest
rate with respect thereto, on the schedule annexed to and constituting a part of
its Revolving Credit Note, which recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided that the
failure by any such Bank to make any such recordation on its Revolving Credit
Note shall not affect any of the obligations of the Company under such Revolving
Credit Note or this Agreement.
2.3 Procedure for Borrowing under Revolving Credit Commitments. The
Company may borrow under either the Working Capital Revolving Credit Commitment
or the Investment Revolving Credit Commitment during the Commitment Period on
any Working Day if the borrowing is a Eurodollar Loan or on any Business Day if
the borrowing is an Alternate Base Rate Loan; provided that the Company shall
give the Agent irrevocable notice (which notice must be received by the Agent
prior to 10:00 A.M., New York City time) (a) three Working Days prior to the
requested borrowing date, in the case of Eurodollar Loans and (b) one Business
Day prior to the requested borrowing date, in the case of Alternate Base Rate
Loans, specifying (i) the amount to be borrowed, (ii) the requested borrowing
date, (iii) whether the borrowing is to be Working Capital Revolving Credit
Loans or Investment Revolving Credit Loans, (iv) whether the borrowing is to be
a Eurodollar Loan, an Alternate Base Rate Loan or a combination thereof and (v)
if the loan is to be entirely or partly a Eurodollar Loan, the length of the
Interest Period for such Eurodollar Loan. Upon receipt of such notice, the
Agent shall notify each Bank thereof promptly, but in any case by 5:00 p.m. of
the same day such notice is received. Each borrowing pursuant to either the
Working Capital Revolving Credit Commitments or the Investment Revolving Credit
Commitments shall be in an aggregate principal amount of (a) $1,000,000 or a
whole multiple of $500,000 in excess thereof in the case of Eurodollar Loans and
(b) in the case of Alternate Base Rate Loans, the lesser of (i) $1,000,000 or a
whole multiple of $500,000 in excess thereof and (ii) the sum of the then
Available Working Capital Revolving Credit Commitments, in the case of
borrowings of Working Capital Revolving Credit Loans, or the then Available
Investment Revolving Credit Commitments, in the case of borrowings of Investment
Revolving Credit Loans. Not later than 12:00 noon, New
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16
York City time, on the date specified in such notice, each Bank shall make
available to the Agent at its office specified in subsection 11.1, in
immediately available funds, the amount then to be loaned by it. Proceeds of
Revolving Credit Loans received by the Agent shall be made available to the
Company at the office of the Agent specified in subsection 11.1 by crediting the
Company's account on the books of such office with the aggregate of the amounts
made available to the Agent by the Banks and in like funds as received by the
Agent.
2.4 Termination, Reduction or Extension of Revolving Credit
Commitments. (a) The Company shall have the right, upon not less than five
Business Days' notice to the Agent, to terminate the Revolving Credit
Commitments or, from time to time, reduce the amount of the Revolving Credit
Commitments. Any such reduction shall be ratable among the Working Capital
Revolving Credit Commitments and the Investment Revolving Credit Commitments and
no such reduction shall be permitted to an amount which is less than the
aggregate principal amount of the Working Capital Revolving Credit Loans, in the
case of a reduction of the Working Capital Revolving Credit Commitments, or the
Investment Revolving Credit Loans, in the case of a reduction of the Investment
Revolving Credit Commitments, then outstanding after giving effect to any
contemporaneous prepayment thereof. Upon receipt of such notice the Agent shall
promptly notify each Bank thereof. Any termination of the Revolving Credit
Commitments shall be accompanied by prepayment in full of the Revolving Credit
Loans, together with accrued interest thereon to the date of such prepayment.
Any reduction of the Working Capital Revolving Credit Commitments or the
Investment Revolving Credit Commitments (other than as a result of any mandatory
prepayment) shall be in the amount of $1,000,000 or any whole multiple of
$500,000 in excess thereof and shall reduce permanently the amount of the
Working Capital Revolving Credit Commitments or the Investment Revolving Credit
Commitments, as the case may be, then in effect. The Revolving Credit
Commitments once terminated or reduced may not be reinstated.
(b) The Company may on any day which is at least 60 and not more than
90 days prior to the Revolving Credit Commitment Termination Date in effect at
such time request by notice to the Agent and the Banks that the Revolving Credit
Commitment Termination Date be extended for an additional 364 day period
beginning on the Revolving Credit Commitment Termination Date then in effect.
No more than 30 days after receipt of any such extension request, each Bank
shall notify the Agent of its decision with respect thereto (as to which
decision the Agent shall promptly notify the Company). The Revolving Credit
Commitment Termination Date shall be so extended provided that (i) no Default or
Event of Default shall have occurred and is continuing at such time and (ii) the
Company shall have received the prior written consent of all the Banks for such
extension.
SECTION 3. LETTERS OF CREDIT
3.1 Letter of Credit Commitments. a) Subject to the terms and
conditions hereof, the Agent, on behalf of the Banks, and in reliance on the
agreement of the Banks set forth in subsection 3.3, agrees to (i) issue
Commercial Letters of Credit and Standby Letters of Credit for the account of
the Company on any Business Day from and including the Closing Date to but not
including the Revolving Credit Commitment Termination Date (as the same may have
been extended at the time of issuance) and (ii) continue the Existing Letters of
Credit; provided that the Agent shall have no obligation to issue any Letter of
Credit if, after giving effect to such issuance, (i) the aggregate amount of the
Available Investment Revolving Credit Commitments would be less than zero or
(ii) the Aggregate L/C Outstandings shall exceed $30,000,000.
b) The Existing Letters of Credit shall automatically be deemed to
have been issued under this Agreement as of the Closing Date.
3.2 Issuance and Continuation of Letters of Credit. a) The Company
may request the Agent to issue a Commercial Letter of Credit or a Standby Letter
of Credit for its
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17
account by delivering to the Agent at least four Business Days prior to the
proposed date of issuance at its address specified in subsection 11.1, an
Application setting forth in such Application (i) the proposed issuance date of
such Letter of Credit, (ii) the face amount of such Letter of Credit and (iii)
such other information as may be requested in such Application. The Company
shall also provide such other certificates, documents and other papers and
information as the Agent may reasonably request. Upon receipt of such
Application, the Agent will notify each other Bank thereof and shall, subject to
the terms and conditions hereof, promptly open such Letter of Credit by issuing
the original of such Letter of Credit to the beneficiary thereof and by
furnishing a copy thereof to the Company.
b) Each Commercial Letter of Credit and Standby Letter of Credit
issued hereunder shall, among other things, (i) be denominated in Dollars, (ii)
provide for the payment of sight drafts when presented for honor thereunder in
accordance with the terms thereof and when accompanied by the certificate
described therein, (iii) have an expiry date occurring not later than the
Revolving Credit Commitment Termination Date, (iv) not provide for its automatic
extension beyond such expiry date, (v) be in form and substance satisfactory to
the Agent and (vi) be issued to a beneficiary reasonably satisfactory to the
Agent.
3.3 Participating Interests. Effective in the case of (a) each
Existing Letter of Credit as of the Closing Date and (b) each other Letter of
Credit as of the date of the opening thereof, each Bank severally agrees that it
shall be (or shall continue to be) unconditionally and irrevocably liable,
without regard to the occurrence of any Default or Event of Default, to the
extent of such Bank's Commitment Percentage, to reimburse the Agent on demand
for the amount of each draft paid by the Agent under such Letter of Credit to
the extent that such amount is not reimbursed by the Company pursuant to
subsection 3.4. Each such payment made by a Bank shall be treated as the
purchase by such Bank of a participating interest in such Company's
Reimbursement Obligation under subsection 3.4 in an amount equal to such
payment. Each Bank shall share on a pro rata basis (calculated by reference to
its participating interest from time to time in such Reimbursement Obligations)
in any interest which accrues pursuant to subsection 3.4. All amounts recovered
by the Agent or any Bank hereunder or under the other Loan Documents and which
are applied to the Reimbursement Obligations under subsection 3.4 shall be
distributed to the Banks in an amount equal to their respective pro rata shares
thereof (calculated as provided in the preceding sentence).
3.4 Reimbursement Obligation of the Company. In order to induce the
Agent to issue (or continue, as the case may be) the Letters of Credit and the
Banks to participate therein, the Company hereby agrees to reimburse the Agent
(a) unless such Reimbursement Obligation has been accelerated pursuant to
Section 8, on each date on which the Agent notifies the Company of the date and
amount of a draft presented under any Letter of Credit issued for its respective
account and paid by the Agent, for (i) the amount of such draft paid by the
Agent on behalf of the Banks under such Letter of Credit and (ii) the amount of
any taxes, fees, charges or other costs or expenses whatsoever incurred by the
Agent or any Bank in connection with any payment made by the Agent or any Bank
under, or with respect to, such Letter of Credit and (b) upon the acceleration
of such Reimbursement Obligation in accordance with subsection 8.2, for an
amount equal to the then maximum liability (whether direct or contingent) of the
Agent and the Banks under such Letter of Credit. Each such payment shall be
made to the Agent at the office of the Agent specified in subsection 11.1, in
lawful money of the United States of America and in immediately available funds.
Interest on any and all amounts remaining unpaid by the Company under this
subsection 3.4 from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full shall be payable
on demand of the Agent at the fluctuating rate per annum equal to 2% above the
Alternate Base Rate.
3.5 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Agent shall promptly notify the Company
of the date and the amount of the draft presented for payment. If the Company
fails to reimburse the Agent as provided in subsection
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18
3.4 by the close of business on the date each such draft is paid by the Agent,
the Agent shall promptly notify each Bank thereof and of the date, the amount of
the draft paid and such Bank's ratable share thereof. No later than the close of
business on the date such notice is given, each Bank shall make available to the
Agent, at its office specified in subsection 11.1, in immediately available
funds, such Bank's ratable share of such draft. The responsibility of the Agent
to the Company and the Banks shall be only to determine that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment shall be in conformity with such Letter of Credit. If any
Bank's ratable share of a draft presented for payment under any Letter of Credit
is made available to the Agent on a date after the date such draft is paid by
the Agent, such Bank shall pay to the Agent on demand an amount equal to the
product of (i) the daily average Federal Funds Effective Rate during such period
as quoted by the Agent, times (ii) the amount of such Bank's Commitment
Percentage of such draft, times (iii) a fraction the numerator of which is the
number of days that elapse from and including the date such draft is paid by the
Agent to the date on which such Bank's Commitment Percentage of such draft shall
have become immediately available to the Agent and the denominator of which is
360. A certificate of the Agent submitted to any Bank with respect to any
amounts owing under this subsection 3.6 shall be conclusive, absent manifest
error. If such Bank's Commitment Percentage is not in fact made available to the
Agent by such Bank within three Business Days of the date such draft is paid by
the Agent, the Agent shall be entitled to recover such amount with interest
thereon at the rate per annum applicable to Alternate Base Rate Loans hereunder,
on demand, from the Company.
3.6 Increased Costs. If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Bank with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof shall either (i) impose, modify, assess or deem applicable any
reserve, special deposit, assessment or similar requirement against letters of
credit issued by the Agent or (ii) impose on the Agent or any Bank any other
condition regarding any Letter of Credit, and the result of any event referred
to in clauses (i) or (ii) above shall be to increase the cost to the Agent or
any Bank of issuing or maintaining such Letter of Credit, or its participation
therein, as the case may be (which increase in cost shall be the result of the
Agent or any Bank's reasonable allocation of the aggregate of such cost
increases resulting from such events), then, upon demand by the Agent or such
Bank, the Company shall promptly pay to the Agent or such Bank from time to time
as specified by the Agent or such Bank additional amounts which shall be
sufficient to compensate the Agent or such Bank for such increased cost,
together with interest on each such amount from the date demanded until payment
in full thereof at the rate provided in subsection 3.4. A certificate as to the
fact and amount of such increased cost incurred by the Agent or such Bank as a
result of any event showing in reasonable detail the basis for the calculation
thereof submitted by the Agent or any Bank to the Company, shall be conclusive
in the absence of manifest error. This covenant shall survive the termination
of this Agreement and the payment of the Revolving Credit Loans and all other
amounts payable hereunder.
3.7 Nature of Obligations; Indemnities. a) The obligations of the
Company hereunder shall be absolute and unconditional under any and all
circumstances and irrespective of any set off, counterclaim or defense to
payment which the Company may have or had against the Agent, any Bank or any
beneficiary of a Letter of Credit, provided, however, that this provision shall
be deemed a waiver by the Company of the assertion of a compulsory counterclaim
only to the extent permitted by applicable law. The Company assumes all risks
of the acts or omissions of the users of the Letters of Credit. Neither the
Agent nor any Bank nor any of their respective correspondents shall be
responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document specified in any of the applications for any of the
Letters of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent, or forged; (ii) for the validity
or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any of the Letters of Credit or any of the rights or benefits
thereunder or proceeds thereof in whole or in part, which may prove to be
invalid or ineffective for
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19
any reason; (iii) for failure of any draft to bear any reference or adequate
reference to any of the Letters of Credit, or failure of anyone to note the
amount of any draft on the reverse of any of the Letters of Credit or to
surrender or to take up any of the Letters of Credit or to send forward any such
document apart from drafts as required by the terms of any of the Letters of
Credit, each of which provisions, if contained in a Letter of Credit itself, it
is agreed, may be waived by the Agent; (iv) for errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (v) for any
error, neglect, default, suspension or insolvency of any correspondents of the
Agent; (v) for errors in translation or for errors in interpretation of
technical terms; (vii) for any loss or delay, in the transmission or otherwise,
of any such document or draft or of proceeds thereof; (viii) for any
misapplication by any beneficiary of any Letter of Credit of the proceeds of a
drawing of such Letter of Credit; or (ix) for any other circumstances whatsoever
in making or failing to make payment under a Letter of Credit, except only that
the Company shall have a claim against the Agent, and the Agent shall be liable
to the Company, to the extent, but only to the extent, of any direct, as opposed
to consequential, damages suffered by the Company which the Company proves were
caused by the Agent's willful misconduct or gross negligence in determining
whether documents presented under a Letter of Credit comply with the terms of
such Letter of Credit. None of the above shall affect, impair or prevent the
vesting of any of the rights or powers of the Agent or any Bank. The Agent shall
have the right to transmit the terms of the Letter of Credit involved without
translating them.
b) In furtherance and extension and not in limitation of the specific
provisions hereinabove in this Section 3 set forth, (i) any action taken or
omitted by the Agent or by any of its correspondents under or in connection with
any of the Letters of Credit, if taken or omitted in good faith, shall be
binding upon the Company and shall not put the Agent or its correspondents under
any resulting liability to the Company and (ii) the Agent may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary; provided
that if the Agent shall receive written notification from both the beneficiary
of a Letter of Credit and the Company that sufficiently identifies (in the
opinion of the Agent) documents to be presented to the Agent which are not to be
honored, the Agent agrees that it will not honor such documents.
c) The Company hereby agrees at all times to protect, indemnify and
save harmless each of the Agent, the Banks or their respective correspondents
from and against any and all claims, actions, suits and other legal proceedings,
and from and against any and all losses, claims, demands, liabilities, damages,
costs, charges, counsel fees and other expenses which they or any of them may,
at any time, sustain or incur by reason of or in consequence of or arising out
of the issuance of any of the Letters of Credit, except for losses and expenses
which the Company proves were caused by the willful misconduct or gross
negligence of an indemnified party; it being the intention of the parties that
this agreement shall be construed and applied to protect and indemnify each of
the Agent, the Banks and their respective correspondents against any and all
risks involved in the issuance of all of the Letters of Credit or participations
therein, all of which risks, whether or not foreseeable, being hereby assumed by
the Company, including, without limitation, any and all risks of all acts by any
Governmental Authority, domestic or foreign. The Agent and the Banks shall not,
in any way, be liable for any failure by the Agent or anyone else to pay a draft
drawn under any of the Letters of Credit as a result of any acts, whether
rightful or wrongful, of any Governmental Authority, or any other cause not
readily within their control or the control of their respective correspondents,
agents, or subagents. Without limiting the generality of the foregoing, the
Company shall reimburse the Agent and the Banks and their respective
correspondents and shall pay and indemnify the Agent, any Banks or its
correspondents against payment of, out-of-pocket costs and expenses, withholding
taxes, liabilities and damages (including, without limitation, reasonable
counsel fees) incurred or sustained by any of them in connection with any of the
Letters of Credit or by reason of any such failure to pay. Also, without
limiting the generality of the foregoing, the Company shall be responsible for,
and shall reimburse the Agent and the Banks
<PAGE>
20
forthwith upon its receipt of any demand therefor, any and all commissions, fees
and other charges paid or payable by the Agent or any Bank to any foreign bank
which shall be an advising bank or a beneficiary of a Letter of Credit which
shall, in reliance thereon, have issued its own letter of credit in respect of
obligations of the Company.
3.8 Purpose of the Letters of Credit. The Commercial Letters of
Credit and the Standby Letters of Credit shall be used for (i) the purpose of
purchasing imported Product and (ii) general business purposes in the ordinary
course of business or for such other purposes as may be approved by the Agent.
3.9 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
FINANCING FACILITIES
4.1 Optional Prepayments. a) The Company may on the last day of
the relevant Interest Period if the Revolving Credit Loans to be prepaid are in
whole or in part Eurodollar Loans, or at any time and from time to time if the
Revolving Credit Loans to be prepaid are Alternate Base Rate Loans, prepay the
Revolving Credit Loans, in whole or in part, without premium or penalty, upon at
least (i) three Working Days' irrevocable notice, in the case of Eurodollar
Loans, and (ii) one Business Day's irrevocable notice, in the case of Alternate
Base Rate Loans, in each case to the Agent, specifying the date and amount of
prepayment and whether the prepayment is of Working Capital Revolving Credit
Loans or Investment Revolving Credit Loans and whether of Eurodollar Loans or
Alternate Base Rate Loans or a combination thereof, and if of a combination
thereof, the amount of prepayment allocable to each. Upon receipt of such
notice the Agent shall promptly notify each Bank thereof. If such notice is
given, the Company shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein, together
with accrued interest to such date on the amount prepaid.
b) Each optional partial prepayment of the Revolving Credit Loans
shall be in an aggregate principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof.
4.2 Commitment Fees. The Company agrees to pay to the Agent, for the
account of each Bank, commitment fees with respect to the Revolving Credit
Commitment of such Bank for the period from and including the Closing Date to
and including the Revolving Credit Termination Date, calculated at the following
rates per annum on the average daily Available Revolving Credit Commitment of
such Bank for each day during the period for which the commitment fee with
respect to the Revolving Credit Commitments is being paid:
(i) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after
September 30, 1998 shows that the Total Indebtedness/EBITDA Ratio on the
last day of such fiscal quarter was less than or equal to 1.5 to 1, then
the commitment fee for the Revolving Credit Commitment, during the period
beginning on (and including) the date on which such Applicable Margin
Certificate was delivered by the Company to the Banks and ending on (and
excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be .25%; and
(ii) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after
September 30, 1998 shows that the Total Indebtedness/EBITDA Ratio on the
last day of such fiscal quarter was greater
<PAGE>
21
than 1.5 to 1 and less than or equal to 2.5 to 1, then the commitment fee
for the Revolving Credit Commitment, during the period beginning on (and
including) the date on which such Applicable Margin Certificate was
delivered by the Company to the Banks and ending on (and excluding) the
date on which the next Applicable Margin Certificate is delivered by the
Company to the Banks pursuant to subsection 6.1(c), shall be .30%;
(iii) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after
September 30, 1998 shows that the Total Indebtedness/EBITDA Ratio on the
last day of such fiscal quarter was greater than 2.5 to 1, then the
commitment fee for the Revolving Credit Commitment, during the period
beginning on (and including) the date on which such Applicable Margin
Certificate was delivered by the Company to the Banks and ending on (and
excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be .375%;
provided if the Company shall fail to deliver the Applicable Margin
Certificate by the end of the fiscal quarter in which it is required, the
commitment fee for the Revolving Credit Commitment for the next fiscal
quarter shall be as provided in clause (iii) above; provided, further, that
the commitment fee for the Revolving Credit Commitment for the period from
the Closing Date until (and excluding) the date on which the Company
delivers to the Banks the Applicable Margin Certificate for the fiscal
quarter of the Company ended March 31, 1999 shall be .30%.
The commitment fees with respect to the Revolving Credit Commitments shall be
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing September 30, 1998, and on the Revolving
Credit Termination Date or such earlier date as the Revolving Credit Commitments
shall terminate as provided herein.
4.3 Letter of Credit Commissions. a) The Company agrees to pay to
the Agent for the account of the Banks a Letter of Credit commission for the
period from and including the date of issuance to and including the Revolving
Credit Commitment Termination Date, at the rate per annum equal to the
Applicable Margin then in effect with respect to Eurodollar Loans on the average
daily face amount of each Letter of Credit payable in arrears on the last
Business Day of each March, June, September and December and on the Revolving
Credit Commitment Termination Date.
b) The Agent as issuer of each such Letter of Credit shall receive a
commission of 1/8 of 1% of the average daily face amount of each such Letter of
Credit for the period from and including the date of issuance to and including
the Revolving Credit Commitment Termination Date, payable in arrears on the last
Business Day of each March, June, September and December and on the Revolving
Credit Commitment Termination Date.
4.4 Conversion Options; Minimum Amount of Revolving Credit Loans.
a) The Company may elect from time to time to convert Eurodollar Loans to
Alternate Base Rate Loans by giving the Agent at least three Business Days'
prior irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans shall only be made on the last day of an Interest Period with
respect thereto. The Company may elect from time to time to convert Alternate
Base Rate Loans to Eurodollar Loans by giving the Agent at least five Working
Days' prior irrevocable notice of such election. Upon receipt of such notice,
the Agent shall promptly notify each Bank thereof. Promptly following the date
on which such conversion is being made each Bank shall take such action as is
necessary to transfer its portion of such Loans to its Domestic Lending Office
or its Eurodollar Lending Office, as the case may be. All or any part of
outstanding Eurodollar Loans and Alternate Base Rate Loans may be converted as
provided herein, provided that (i) no Revolving Credit Loan may be converted
into a Eurodollar Loan when any Default or Event of Default has
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22
occurred and is continuing, (ii) partial conversions shall be in an aggregate
principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof
and (iii) any such conversion may only be made if, after giving effect thereto,
subsection 4.5 shall not have been contravened.
b) Any Eurodollar Loans may be continued as such upon the expiration
of an Interest Period with respect thereto by compliance by the Company thereof
with the notice provisions contained in subsection 4.4(a); provided that no
Eurodollar Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to an
Alternate Base Rate Loan on the last day of the then current Interest Period
with respect thereto. The Agent shall notify the Banks promptly that such
automatic conversion contemplated by this subsection 4.4(b) will occur.
4.5 Minimum Amounts of Eurodollar Tranches. All borrowings,
conversions, payments, prepayments and selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (a) the aggregate principal amount of the Eurodollar
Loans comprising any Eurodollar Tranche shall not be less than $1,000,000 and
(b) there shall be no more than 15 Eurodollar Tranches of Revolving Credit Loans
at any one time outstanding.
4.6 Interest Rate, Payment Dates and Lending Offices. a) The
Revolving Credit Loans comprising each Eurodollar Tranche shall bear interest
for each Interest Period with respect thereto on the unpaid principal amount
thereof at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin.
b) Alternate Base Rate Loans shall bear interest for the period from
and including the date thereof until maturity on the unpaid principal amount
thereof at a rate per annum equal to the Alternate Base Rate plus the Applicable
Margin.
c) If all or a portion of the principal amount of any of the
Revolving Credit Loans shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise) each Eurodollar Loan shall be converted
to an Alternate Base Rate Loan at the end of the last Interest Period with
respect thereto. Any such overdue principal amount shall bear interest at a
rate per annum which is 2% above the rate which would otherwise be applicable
pursuant to subsection 4.6 (a) or (b) from the date of such non-payment until
paid in full (as well after as before judgment).
d) Interest shall be payable in arrears on each Interest Payment
Date.
e) Eurodollar Loans shall be made and maintained by each Bank at its
Eurodollar Lending Office, and Alternate Base Rate Loans shall be made and
maintained by each Bank at its Domestic Lending Office.
4.7 Computation of Interest and Fees. a) Interest in respect of
Alternate Base Rate Loans, commitment fees and interest on overdue interest,
commitment fees and other amounts payable hereunder shall be calculated on the
basis of a 365 (or 366, as the case may be) day year for the actual days
elapsed. Interest in respect of Eurodollar Loans shall be calculated on the
basis of a 360 day year for the actual days elapsed. The Agent shall as soon as
practicable notify the Company and the Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Revolving Credit Loan
resulting from a change in the Alternate Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change in the Alternate Base Rate is announced, or such change in the
Eurocurrency Reserve Requirements shall become effective, as the case may be.
The Agent shall as soon as practicable notify the Company and the Banks of the
effective date and the amount of each such change.
<PAGE>
23
b) Each determination of an interest rate by the Agent pursuant to
any provision of this Agreement shall be conclusive and binding on the Company
and the Banks in the absence of manifest error. The Agent shall, at the request
of the Company, deliver to the Company a statement showing the quotations used
by the Agent in determining any interest rate pursuant to subsection 4.6(a).
4.8 Inability to Determine Interest Rate. In the event that:
i) the Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that, by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for any requested Interest
Period; or
ii) the Agent shall have received notice prior to the first day of
such Interest Period from Banks constituting the Required Banks that the
interest rate determined pursuant to subsection 4.6(a) for such Interest
Period does not accurately reflect the cost to such Banks (as conclusively
certified by such Banks) of making or maintaining its affected Revolving
Credit Loan during such Interest Period,
with respect to (a) proposed Revolving Credit Loans that the Company has
requested be made as Eurodollar Loans, (b) Eurodollar Loans that will result
from the requested conversion of Alternate Base Rate Loans into Eurodollar Loans
or (c) the continuation of Eurodollar Loans beyond the expiration of the then
current Interest Period with respect thereto, the Agent shall forthwith give
telex or telephonic notice of such determination to the Company and the Banks at
least one day prior to, as the case may be, the requested Borrowing Date for
such Eurodollar Loans, the conversion date of such Domestic Dollar Loans or the
last day of such Interest Period. If such notice is given (x) any requested
Eurodollar Loans shall be made as Alternate Base Rate Loans, (y) any Alternate
Base Rate Loans that were to have been converted to Eurodollar Loans shall be
continued as Alternate Base Rate Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the last day of the then current Interest Period with
respect thereto, to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Agent, no further Eurodollar Loans shall be made, nor shall the
Company have the right to convert Alternate Base Rate Loans to Eurodollar Loans.
4.9 Pro Rata Treatment and Payments. a) Each borrowing by the
Company from the Banks, each payment by the Company on account of any commitment
fee hereunder and any reduction of the Revolving Credit Commitments of the Banks
hereunder shall be made pro rata according to the respective Commitment
Percentages of the Banks. Each payment (including each prepayment) by the
Company on account of principal of and interest on the Working Capital Revolving
Credit Loans or the Investment Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the Working Capital
Revolving Credit Loans or the Investment Revolving Credit Loans, as the case may
be, held by each Bank. All payments (including prepayments) to be made by the
Company on account of principal, interest and fees shall be made without set-off
or counterclaim and shall be made to the Agent, for the account of the Banks, at
the Agent's office set forth in subsection 11.1, in lawful money of the United
States of America and in immediately available funds. The Agent shall
distribute such payments to the Banks promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurodollar
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Working Day, the maturity thereof shall be
extended to the next succeeding Working Day unless the result of such extension
would be to extend such payment into another calendar month in which event such
payment shall be made on the immediately preceding Working Day.
<PAGE>
24
b) Unless the Agent shall have been notified in writing by any Bank
prior to a Borrowing Date that such Bank will not make the amount which would
constitute its Commitment Percentage of the borrowing on such date available to
the Agent, the Agent may assume that such Bank has made such amount available to
the Agent on such Borrowing Date, and the Agent may, in reliance upon such
assumption, make available to the Company a corresponding amount. If such
amount is made available to the Agent on a date after such Borrowing Date, such
Bank shall pay to the Agent on demand an amount equal to the product of (i) the
daily average Federal Funds Effective Rate during such period, times (ii) the
amount of such Bank's Commitment Percentage of such borrowing, times (iii) a
fraction the numerator of which is the number of days that elapse from and
including such Borrowing Date to the date on which such Bank's Commitment
Percentage of such borrowing shall have become immediately available to the
Agent and the denominator of which is 360. A certificate of the Agent submitted
to any Bank with respect to any amounts owing under this subsection 4.9(b) shall
be conclusive, absent manifest error. If such Bank's Commitment Percentage is
not in fact made available to the Agent by such Bank within three Business Days
of such Borrowing Date, the Agent shall be entitled to recover such amount with
interest thereon at the rate per annum applicable to Alternate Base Rate Loans
hereunder, on demand, from the Company.
4.10 Illegality. Notwithstanding any other provisions herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Bank hereunder to make Eurodollar Loans or convert Alternate Base Rate Loans to
Eurodollar Loans shall forthwith be cancelled and (b) such Bank's Revolving
Credit Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans on the respective next succeeding
Interest Payment Date(s) for such Revolving Credit Loans or within such earlier
period as required by law. If any such prepayment or conversion of a Eurodollar
Loan occurs on a day which is not the last day of the current Interest Period
with respect thereto, the Company shall pay to such Bank such amounts, if any,
as may be required pursuant to subsection 4.13.
4.11 Requirements of Law. a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Bank with any request or directive (whether or not having the
force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) does or shall subject any Bank to any tax of any kind whatsoever
with respect to this Agreement, any Revolving Credit Note or any Eurodollar
Loans made by it, or change the basis of taxation of payments to such Bank of
principal, commitment fee, interest or any other amount payable hereunder
(except for changes in the rate of tax on the overall net income of such Bank);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against (A) assets held
by, or deposits or other liabilities in or for the account of, advances or loans
by, or other credit extended by, or any other acquisition of funds by, any
office of such Bank which are not otherwise included in the determination of the
Eurodollar Rate hereunder or (B) Letters of Credit issued by the Agent or
participated in by the Banks;
(iii) does or shall impose on such Bank any other condition; and the
result of any of the foregoing is to increase the cost to (A) any Bank, by any
amount which such Bank deems to be material, of making, renewing or maintaining
advances or extensions of credit or to reduce any amount receivable hereunder,
in each case, in respect to its Eurodollar Loans, or (B) the Agent or any Bank
of issuing or maintaining Letters of Credit (or its participation therein, as
the case may be), or to reduce any amount receivable in connection therewith,
then, in any such case, upon
<PAGE>
25
demand by the Agent or such Bank (with a copy to the Agent), the Company shall
promptly pay to the Agent or such Bank, as the case may be, any additional
amounts necessary to compensate the Agent or such Bank for such additional cost
or reduced amount receivable, together with interest on each such amount from
the date demanded until payment in full thereof at the rate provided in
subsection 4.6(c) (in the case of increased costs in respect of Eurodollar
Loans) or subsection 3.5 (in the case of increased costs in respect of Letters
of Credit). If the Agent or a Bank becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Company,
through the Agent, of the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to the foregoing
sentence submitted by the Agent or such Bank, through the Agent, to the Company
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and payment of the outstanding
Revolving Extensions of Credit.
Each Bank will promptly notify the Company and the Agent of any event
described in this subsection 4.11 of which it has knowledge and will designate a
different Eurodollar Lending Office if such designation will avoid the need for,
or reduce the amount of, compensation as described in this subsection 4.11 and
will not be otherwise disadvantageous to such Bank.
If any Bank demands compensation from the Company pursuant to this
subsection 4.11 the Company may, upon at least three Business Days' prior notice
to such Bank through the Agent, prepay in full the then outstanding Eurodollar
Loans of such Bank, as the case may be, together with accrued interest thereon
to the date of prepayment and, concurrently therewith, borrow from such Bank
Alternate Base Rate Loans, in principal amounts equal to the aggregate principal
amounts of such Loans being prepaid and with the same maturities, and such Bank
shall make such Alternate Base Rate Loans. If any prepayment or conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Company shall pay to such Bank such
amounts, if any, as may be required pursuant to subsection 4.13.
b) In the event that any Bank shall have determined that the adoption
of any law, rule or regulation regarding capital adequacy, or any change therein
or in the interpretation or application thereof or compliance by any Bank or any
corporation controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central bank
or Governmental Authority, does or shall have the effect of reducing the rate of
return on such Bank's or corporation's capital as a consequence of such Bank's
obligations hereunder to a level below that which such Bank or corporation could
have achieved but for such Requirement of Law, change or compliance (taking into
consideration such Bank's or corporation's policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time to
time, within fifteen days after submission by such Bank or corporation to the
Company (with a copy to the Agent) of a written request therefor, the Company
shall pay to such Bank such additional amount or amounts as will compensate such
Bank or corporation for such reduction. The agreements in this subsection
4.11(b) shall survive the termination of this Agreement and the payment of the
Revolving Extensions of Credit and all other amounts payable hereunder.
4.12 Taxes. a) All payments made by the Company under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Agent and each Bank, net income and
franchise taxes (or taxes imposed in lieu of net income or franchise taxes)
imposed on (or measured by) the income or profits of the Agent or such Bank by
the jurisdiction under the laws of which the Agent or such Bank is organized or
any political subdivision or taxing authority thereof or therein or by any
jurisdiction in which such Bank's Domestic Lending Office or Eurodollar Lending
Office,
<PAGE>
26
as the case may be, is located or any political subdivision or taxing authority
thereof or therein or by any other jurisdiction (or political subdivision or
taxing authority thereof or therein) as a result of a connection between such
Bank and such jurisdiction (or political subdivision or taxing authority thereof
or therein) other than a connection resulting solely from entering into this
Agreement (all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to the Agent or any Bank hereunder, the
amounts so payable to the Agent or such Bank shall be increased to the extent
necessary to yield to the Agent or such Bank (after payment of all Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement. Whenever any Taxes are payable by the
Company, as promptly as possible thereafter, the Company shall send to the Agent
for its own account or for the account of such Bank a certified copy of an
original official receipt received by the Company showing payment thereof. If
the Company fails to pay any Taxes when due to the appropriate taxing authority
or fails to remit to the Agent the required receipts or other required
documentary evidence, the Company shall indemnify the Agent and the Banks for
any incremental taxes, interest or penalties that may become payable by the
Agent or any Bank as a result of any such failure. The agreements in this
subsection 4.12 shall survive the termination of this Agreement and the payment
of the Revolving Extensions of Credit and all other amounts payable hereunder.
b) Each Bank that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver to the Company
and the Agent (i) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form.
Each such Bank also agrees to deliver to the Company and the Agent two further
copies of the said Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Company, and such extensions or renewals thereof as may
reasonably be requested by the Company or the Agent, unless in any such case an
event (including, without limitation, any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to it and
such Bank so advises the Company and the Agent. Such Bank shall certify (i) in
the case of a Form 1001 or 4224, that it is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes and (ii) in the case of a Form W-8 or W-9, that it is entitled to
an exemption from United States backup withholding tax.
4.13 Indemnity. The Company agrees to indemnify each Bank and to
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (a) default by the Company in payment when due of the
principal amount of or interest on any Eurodollar Loans of such Bank, (b)
default by the Company in making a borrowing or conversion after the Company has
given a notice of borrowing in accordance with subsection 2.3 or a notice of
conversion pursuant to subsection 4.4(a), or (c) default by the Company in
making any prepayment after the Company has given a notice in accordance with
subsection 4.1(a) or (d) a prepayment of a Eurodollar Loan on a day which is not
the last day of an Interest Period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the reemployment
of funds obtained by it to maintain its Eurodollar Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained. A
certificate as to any additional amounts payable pursuant to the foregoing
sentence submitted by such Bank or the Agent to the Company shall be conclusive
in the absence of manifest error. This covenant shall survive termination of
this Agreement and payment of the outstanding Revolving Extensions of Credit and
all other amounts payable hereunder.
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27
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Banks to enter into this
Agreement and to make their respective Revolving Credit Loans and to issue and
participate in Letters of Credit, the Company represents and warrants to the
Agent and the Banks that:
5.1 Financial Condition. a) The unaudited pro forma consolidated
balance sheet of the Company as at March 31, 1998, (the "Pro Forma Balance
Sheet"), copies of which have heretofore been delivered to each Bank, have been
prepared after giving effect (as if such events had occurred on such date) to
the Transactions, the Revolving Credit Loans to be made on the Closing Date and
the use of proceeds thereof and the payment of fees and expenses in connection
therewith. The Pro Forma Balance Sheet has been prepared based on the best
information available to the Company as of the date of delivery thereof and
presents fairly on a pro forma basis the financial position of the Company and
its Subsidiaries, as at March 31, 1998, as if the transactions specified in the
preceding sentence had actually occurred at such date.
b) The unaudited consolidated financial statements of EPCO for the
fiscal quarter ended March 31, 1998, copies of which have heretofore been
delivered to each Bank, have been prepared in accordance with GAAP and present
fairly the financial condition, results of operation and changes in financial
position of EPCO and its Subsidiaries, as at the date or dates and for the
period or periods stated.
5.2 No Change. Since March 31, 1998, there has been no development
or event that has had or could reasonably be expected to have a Material Adverse
Effect.
5.3 Existence; Compliance with Law. The Company (a) is duly
organized, validly existing and in good standing under the laws of the State of
Delaware, (b) has the partnership power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged and which it proposes to
be engaged after the Closing Date, (c) is duly qualified and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent that the lack of such qualification could not have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations. The Company has
the partnership power and authority, and the legal right, to make, deliver and
perform the Loan Documents and to borrow hereunder and has taken all necessary
action to authorize the borrowings on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of the Loan Documents.
No consent or authorization of, filing with or other act by or in respect of any
Governmental Authority is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of the
Loan Documents. This Agreement has been, and each other Loan Document will be,
duly executed and delivered on behalf of the Company. This Agreement
constitutes, and each other Loan Document when executed and delivered will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents, the borrowings hereunder and the use of the proceeds thereof,
will not violate any Requirement of Law or any Contractual Obligation of the
Company, and will not result in, or
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28
require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any Requirement of Law or
Contractual Obligation.
5.6 No Default Neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which could
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
5.7 Investments and Guaranties. At the date of this Agreement,
neither the Company nor any Subsidiary has any Investments or has outstanding
any Guarantee Obligations, except as permitted by this Agreement, reflected in
the Financial Statements or disclosed to the Banks in Schedule 5.7.
5.8 Liabilities; Litigation. Except as otherwise expressly permitted
under this Agreement, (i) neither the Company nor any Subsidiary has any
material (individually or in the aggregate) liabilities, direct or contingent,
other than liabilities incurred in the normal course of business, and (ii) there
is no litigation, legal, administrative or arbitral proceeding, investigation or
other action of any nature pending or, to the best knowledge of the Company,
threatened against or affecting the Company or any Subsidiary which involves the
reasonable possibility of any material judgment or liability greater than
$10,000,000 and not fully covered (after satisfaction of any deductible) by
insurance or which could reasonably be expected to have a Material Adverse
Effect. No unusual or unduly burdensome restriction, restraint, or hazard
exists by contract, Requirement of Law or otherwise relative to the business or
Properties of the Company or any Subsidiary.
5.9 Taxes; Governmental Charges. The Company and its Subsidiaries
have filed all tax returns and reports required to be filed and have paid all
taxes, assessments, fees and other governmental charges levied upon any of them
or upon any of their respective Properties or income which are due and payable,
including interest and penalties (other than those the amount or validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Company); and no tax liens have been filed and, to the best
knowledge of the Company, no claims are being asserted with respect to any such
taxes, fees or other charges.
5.10 Titles, etc. Except as set forth on Schedule 5.10, the Company
and its Subsidiaries have good title to their respective material (individually
or in the aggregate) Properties, free and clear of all Liens except (i) Liens
referred to in the financial statements described in subsection 5.1, (ii)
Excepted Liens, and (iii) Liens otherwise permitted or contemplated by this
Agreement.
5.11 Intellectual Property. The Company and each of its Subsidiaries
owns or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted that are material to the condition (financial or other), business, or
operations of the Company and its Subsidiaries (the "Intellectual Property").
No claim has been asserted and is pending by any Person with the respect to the
use of any such Intellectual Property, or challenging or questioning the
validity or effectiveness of any such Intellectual Property and the Company does
[Bnot know of any valid basis for any such claim. The use of such Intellectual
Property by the Company and each of its Subsidiaries does not infringe on the
rights of any Person, subject to such claims and infringements as do not, in the
aggregate, give rise to any liability on the part of the Company or any of its
Subsidiaries that is material to the Company and its Subsidiaries taken as a
whole.
5.12 Casualties; Taking of Properties. Neither the business nor the
Properties of the Company or any Subsidiary have been materially and adversely
affected as a result of any fire, explosion, earthquake, flood, drought,
windstorm, accident, strike or other labor disturbance, embargo, requisition or
taking of Property or cancellation of contracts, permits or concessions by
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29
any domestic or foreign government or any agency thereof, riot, activities of
armed forces or acts of God or of any public enemy.
5.13 Use of Proceeds; Margin Stock; No Financing of Corporate
Takeovers. The proceeds of the Working Capital Revolving Credit Loans will be
used by the Company for working capital purposes in the ordinary course of
business of the Company and for general partnership purposes, including to pay,
in whole or in part, distributions on the limited partner interests of the
Limited Partner in the Company (to enable the Limited Partner to make cash
distributions with respect to the Units and the general partner interest of the
Limited Partner) and the General Partner Interest, excluding, however, for the
purposes of making Investments. The proceeds of the Investment Revolving Credit
Loans will be used by the Company to make Investments permitted pursuant to
subsection 7.6 and other working capital and general partnership purposes. No
part of the proceeds of the Revolving Credit Loans hereunder will be used for
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect or for
any purpose which violates the provisions of the Regulations of such Board of
Governors. If requested by the Agent, the Company will furnish to the Agent a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 referred to in said Regulation U. No proceeds of any loan or extension of
credit made pursuant to this Agreement will be used to acquire any security in
any transaction which is subject to Sections 13 or 14 of the Securities Exchange
Act of 1934, including particularly but without limitation Sections 13(d) and
14(d) thereof. Neither the Company nor any Subsidiary nor any Person acting on
behalf of the Company or any Subsidiary has taken or will take any action which
might cause any of the Loan Documents to violate Regulation U or any other
regulation of the Board of Governors of the Federal Reserve System as the same
may hereinafter be in effect.
5.14 Compliance with Law. Each of the Company and its Subsidiaries:
(i) is not in violation of any Requirement of Law, which violation
(in the event such violation were asserted by any Person through
appropriate action) involves the reasonable possibility of having a
Material Adverse Effect; and
(ii) presently possesses all licenses, permits, franchises and other
governmental authorizations necessary to the ownership of any of its
Property, the operation of the Facilities and the conduct of its business,
the failure to obtain which (in the event such failure were asserted by any
Person through appropriate action) involves the reasonable possibility of
having a Material Adverse Effect.
5.15 ERISA. The Company, its Subsidiaries and any Commonly
Controlled Entity are in compliance in all material respects with the applicable
provisions of ERISA with respect to each Plan which they maintain and have
fulfilled their obligations under the minimum funding standards of ERISA with
respect to each Single Employer Plan. No "prohibited transaction," as such term
is defined in Section 4975 of the Internal Revenue Code of 1986, as amended, has
occurred with respect to any such Plan which could subject the Company, its
Subsidiaries or any Commonly Controlled Entity to any excise tax. No
"reportable event," as such term is defined in Section 4043 of ERISA and the
regulations issued thereunder (other than a reportable event not subject to the
provision for 30-day notice to the PBGC under such regulations), has occurred
with respect to any Plan. No Plan has been, or is likely to be, terminated in a
manner which would result in the imposition of a Lien on the Property of the
Company, any Subsidiary or any Commonly Controlled Entity pursuant to Section
4068 of ERISA. The present value of all benefits vested under each Single
Employer Plan maintained by the Company, its Subsidiaries or any Commonly
Controlled Entity (based on those assumptions used to fund such Plan) did not,
as of the last annual valuation date applicable thereto, exceed the value of the
assets of such Plan
<PAGE>
30
allocable to such vested benefits. Neither the Company nor any of its
Subsidiaries nor any Commonly Controlled Entity is making or accruing (or has
any obligation to make or accrue) an obligation to make any contribution to a
Multiemployer Plan, nor has any such contribution been made within five years
prior to the date hereof. Neither the Company nor any of its Subsidiaries nor
any Commonly Controlled Entity provide for post-retirement benefits under Plans
which are welfare benefit plans (as defined in Section 3(1) of ERISA).
5.16 Investment Company Act; Other Regulations. The Company is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
5.17 Accuracy and Completeness of Information. All written
information (including, without limitation, the final form of the Form S-1 of
the Limited Partner as filed with the Securities and Exchange Commission on July
21, 1998, a copy of which has previously been furnished to the Banks (the
"S-1")), reports and other papers and data (other than projections) with respect
to the Company or the Transactions furnished to the Agent or the Banks by the
Company were, at the time the same were so furnished, complete and correct in
all material respects, or have been subsequently supplemented by other written
information, reports or other papers or data, to the extent necessary to give
the Agent or the Banks a true and accurate knowledge of the subject matter in
all material respects. All written projections with respect to the Company so
furnished by the Company were prepared or presented in good faith by the
Company. No fact is known to the Company which materially and adversely affects
or in the future may (so far as the Company can reasonably foresee) materially
and adversely affect the Transactions or the business, assets or liabilities,
financial or other condition, results of operations or business prospects of the
Company which has not been set forth in the financial statements referred to in
subsection 5.1 or in such information, reports, papers and data or otherwise
disclosed in writing to the Agent and Banks prior to the Closing Date. No
document furnished or statement made in writing to the Agent or the Banks by the
Company in connection with the Transactions or the negotiation, preparation or
execution of this Agreement contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
contained therein not misleading, in either case which has not been corrected,
supplemented or remedied by subsequent documents furnished or statements made in
writing to the Agent or the Banks on or prior to the Closing Date.
5.18 Public Utility Holding Company Act. The Company is not a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
5.19 Subsidiaries. As of the date of this Agreement, the Company has
no Subsidiaries except those shown in Schedule 5.19, which Schedule is complete
and accurate.
5.20 Location of Business and Offices. The Company's and each
Subsidiary's principal place of business and chief executive offices are located
at 2727 North Loop West, Houston, Texas 77008.
5.21 Neither the Company Nor Subsidiary is a Utility. Except as set
forth on Schedule 5.21, neither the Company nor any Subsidiary is a Person
engaged in the State of Texas in the (i) generation, transmission or
distribution and sale of electric power; (ii) provision of telephone or
telegraph service to others; (iii) production, transmission, or distribution and
sale of steam or water; (iv) operation of a railroad; or (v) provision of sewer
service to others.
5.22 Year 2000 Matters. Any reprogramming required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be impaired by the
<PAGE>
31
occurrence of the year 2000) in and following the year 2000 of computer systems
and other equipment containing embedded microchips, in either case owned or
operated by the Company or any of its Subsidiaries or used or relied upon in the
conduct of their business (including any such systems and other equipment
supplied by others or with which the computer systems of the Company or any of
its Subsidiaries interface), and the testing of all such systems and other
equipment as so reprogrammed, will be completed by March 31, 1999. The costs to
the Company and its Subsidiaries that have not been incurred as of the date
hereof for such reprogramming and testing and for the other reasonably
foreseeable consequences to them of any improper functioning of other computer
systems and equipment containing embedded microchips due to the occurrence of
the year 2000 could not reasonably be expected to result in a Default or Event
of Default or to have a Material Adverse Effect. Except for any reprogramming
referred to above, the computer systems of the Company and its Subsidiaries are
and, with ordinary course upgrading and maintenance, will continue for the term
of this Agreement to be, sufficient for the conduct of their business as
currently conducted.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as any Commitment remains in
effect, any Revolving Credit Loan or Reimbursement Obligation remains
outstanding and unpaid or any other amount is owing to any Bank or the Agent
hereunder, the Company shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements and Reports of the Company. Promptly furnish to
the Agent and the Banks from time to time upon request such information
regarding the business and affairs and financial condition of the Company and
its Subsidiaries as the Agent may reasonably request, and furnish to each Bank:
a) Annual Reports. Promptly after becoming available and in any
event within 90 days after the close of each fiscal year of the Company (i)
the audited consolidated and unaudited consolidating balance sheets of the
Company and its consolidated Subsidiaries and, subject to any consents
required by its constituent documents (which the Company shall use
reasonable efforts to obtain), each Permitted Joint Venture (except for any
Permitted Joint Venture in which the Company or any of its Subsidiaries is
not the general partner, in which case such financial statements shall be
delivered when received) as at the end of such year and (ii) the audited
consolidated (and, as to statements of income, unaudited consolidating)
statements of income, equity and cash flow of the Company and its
consolidated Subsidiaries and, subject to any consents required by its
constituent documents (which the Company shall use reasonable efforts to
obtain), each Permitted Joint Venture (except for any Permitted Joint
Venture in which the Company or any of its Subsidiaries is not the general
partner, in which case such financial statements shall be delivered when
received) for such year setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Deloitte & Touche or such other
independent public accountants acceptable to the Banks (in the case of the
Financial Statements of the Company), which report shall be to the effect
that such statements have been prepared in accordance with GAAP; and
b) Quarterly Reports. Promptly after their becoming available and
in any event within 45 days after the close of each fiscal quarter of the
Company, (i) the unaudited consolidated and unaudited consolidating balance
sheets of the Company and its consolidated Subsidiaries and, subject to any
consents required by its constituent documents (which the Company shall use
reasonable efforts to obtain), each Permitted
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32
Joint Venture (except for any Permitted Joint Venture in which the Company
or any of its Subsidiaries is not the general partner, in which case such
financial statements shall be delivered when received) as at the end of
such quarter and (ii) the unaudited consolidated (and, as to statements of
income, unaudited consolidating) statements of income, equity and cash flow
of the Company and, subject to any consents required by its constituent
documents (which the Company shall use reasonable efforts to obtain), each
Permitted Joint Venture (except for any Permitted Joint Venture in which
the Company or any of its Subsidiaries is not the general partner, in which
case such financial statements shall be delivered when received) for such
quarter, setting forth in each case in comparative form the corresponding
figures for the preceding fiscal year, all of the foregoing certified by
the principal financial officer of the Company to have been prepared in
accordance with GAAP subject to normal changes resulting from year-end
adjustment and accompanied by a written discussion of the financial
performance and operating results, including the major assets, of the
Company and, subject to any consents required by its constituent documents
(which the Company shall use reasonable efforts to obtain), each Permitted
Joint Venture (except for any Permitted Joint Venture in which the Company
or any of its Subsidiaries is not the general partner, in which case such
financial statements shall be delivered when received) for such quarter;
and
c) Applicable Margin Certificates. Within 45 days after the end of
each fiscal quarter of the Company, a certificate of the principal
financial officer of the Company showing in detail the computations
necessary to calculate the Applicable Margin (an "Applicable Margin
Certificate"); and
d) Other Information. From time to time, such other information or
documents (financial or otherwise) as any Bank may reasonably request.
6.2 Annual Certificates of Compliance. Concurrently with the
furnishing of the annual financial statements pursuant to subsection 6.1(a),
furnish or cause to be furnished to the Banks certificates of compliance, as
follows:
a) a certificate from the independent public accountants stating that
their audit has not disclosed the existence of any condition which
constitutes a Default, or if their audit has disclosed the existence of any
such condition, specifying the nature, period of existence and status
thereof; and
b) a certificate signed by the principal financial officer of the
Company (i) stating that a review of the activities of the Company and its
Subsidiaries has been made under his supervision with a view to determining
whether the Company and its Subsidiaries have fulfilled all of their
respective obligations under each of the Loan Documents; (ii) stating that
the Company and its Subsidiaries have fulfilled their respective
obligations under such instruments and that all representations made herein
continue to be true and correct (or specifying the nature of any change),
or if the Company or any Subsidiary shall be in Default, specifying any
Default and the nature and status thereof; (iii) to the extent requested
from time to time by the Agent, specifically affirming compliance of the
Company and its Subsidiaries with any of their respective representations
or obligations under such instruments; and (iv) containing or accompanied
by such financial or other details, information and material as the Agent
may reasonably request to evidence such compliance; and
c) within 60 days after the end of each calendar year, a certificate
of a Responsible Officer, or of the officer of the Company primarily
responsible for monitoring
<PAGE>
33
compliance by the Company and its Subsidiaries with Relevant Environmental
Laws, stating that (during such calendar year):
i) No notice, notification, demand, request for information,
citation, summons or order has been issued for any violation of
Relevant Environmental Laws which could reasonably involve the
possibility of a Material Adverse Effect and, no complaint has been
filed, no penalty has been assessed and no investigation or review is
pending, or to the knowledge of such officer, after due inquiry,
threatened by any Governmental Authority or private litigant with
respect to any generation, treatment, storage, accumulation,
recycling, transportation, disposal, release or discharge, all as
defined in 42 USC (S) 9601(22) ("Release"), of any hazardous
substance, as defined in 42 USC (S) 9601(14), and including petroleum,
its derivatives, by-products and other hydrocarbons, polychlorinated
biphenyls, paint containing lead, urea formaldehyde foam insulation,
and discharge of sewage or effluent, whether or not regulated under
Federal, state or local environmental statutes, ordinances, rules,
regulations or others ("Hazardous Substance") generated by the
operations or business, or located at any property, of the Company and
its Subsidiaries which complaint, penalty, investigation, review or
threat could involve the possibility of a Material Adverse Effect; and
ii) No oral or written notification of a Release of a Hazardous
Substance has been filed by or on behalf of the Company or any
Subsidiary other than reports of Releases not involving the
possibility of a Material Adverse Effect and no property now or
previously owned or leased by the Company or any Subsidiary is listed
or, to the best knowledge of such officer, after due inquiry, proposed
for listing, on the National Priorities List promulgated pursuant to
CERCLA, on CERCLIS or any similar state list of sites requiring
investigation or clean-up.
6.3 Quarterly Certificates of Compliance; Projections. a) Within
45 days after the end of each calendar quarter of each calendar year, furnish or
cause to be furnished to the Banks a principal financial officer's certificate
in the same form as the certificate required by subsection 6.2(b), including all
the matters referred to in clauses (i) through (iv), inclusive, thereof.
b) Not later than 30 days prior to the end of each fiscal year, a
copy of the projections of the operating budget and cash flow for the next
succeeding fiscal year, such projections to be accompanied by a certificate of
the chief financial officer of the Company to the effect that such projections
have been prepared on the basis of sound financial planning practice and that
such officer has no reason to believe they are incorrect or misleading in any
material respect.
6.4 Notice of Certain Events. Promptly notify the Banks of the
occurrence of any of the following events upon a Responsible Officer obtaining
knowledge thereof:
a) any event which constitutes a Default or Event of Default; or
b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding that may exist at any time between the Company
or any of its Subsidiaries and any Governmental Authority, that in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
<PAGE>
34
c) any litigation or proceeding affecting the Company or any of its
Subsidiaries in which the amount involved is $10,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
d) any other event or condition having or which could reasonably be
expected to have a Material Adverse Effect; or
e) the institution of or the withdrawal or partial withdrawal by the
Company or any Subsidiary from any Multiemployer Plan (as well as any other
information regarding ERISA required by subsection 6.5 hereof); or
f) any casualties to the extent required by subsection 6.8(e); or
g) (i) of any Environmental Complaint received by the Company or any
Subsidiary, and (ii)of any notice from any Person of (A) any violation or
alleged violation of any Relevant Environmental Law relating to any such
property or any part thereof or any activity at any time conducted on any such
property, (B) the occurrence of any release, spill or discharge in a quantity
that is reportable under any Relevant Environmental Law or (C) the
commencement of any clean up pursuant to or in accordance with any Relevant
Environmental Law of any Hazardous Substance on or about any such property or
any part thereof, which Environmental Complaint or notice could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
6.5 ERISA Information. Furnish to the Agent:
a) within ten Business Days after the institution of or the withdrawal
or partial withdrawal by the Company, any Subsidiary or any Commonly
Controlled Entity from any Multiemployer Plan, a written notice thereof
signed by an executive officer of the Company stating the applicable
details;
b) within ten Business Days after the filing thereof with the United
States Secretary of Labor, the PBGC or the Internal Revenue Service, copies
of each annual and other report with respect to each Plan or any trust
created thereunder;
c) within ten Business Days after an officer of the Company becomes
aware of the occurrence of any "reportable event," as such term is defined
in Section 4043 of ERISA, or of any "prohibited transaction," as such term
is defined in Section 4975 of the Code, in connection with any Plan or any
trust created thereunder which might constitute grounds for a termination
of such Plan under Title IV of ERISA, a written notice signed by an
executive officer of the Company specifying the nature thereof and what
action the Company, any of its Subsidiaries or any Commonly Controlled
Entity is taking or proposes to take with respect thereto; and
d) within ten Business Days after an officer of the Company becomes
aware of any material action at law or at equity brought against the
Company, any of its Subsidiaries, any Commonly Controlled Entity, or any
fiduciary of a Plan in connection with the administration of any Plan or
the investment of assets thereunder, a written notice signed by an
executive officer of the Company specifying the nature thereof and what
action the Company is taking or proposes to take with respect thereto.
<PAGE>
35
The Company shall also furnish to the Agent, within ten Business Days after an
officer of the Company becomes aware of any action taken by the Internal Revenue
Service with respect to matters as to which information has been furnished
pursuant to subsection (c) above, a written notice specifying the nature of such
action.
6.6 Taxes and Other Liens. Pay and discharge, or cause to be paid
and discharged, promptly or make, or cause to be made, timely deposit of all
taxes (including Federal Insurance Contribution Act ("FICA") payments and
withholding taxes), assessments and governmental charges or levies imposed upon
the Company or any Subsidiary or upon the income or any Property of the Company
or any Subsidiary as well as all claims of any kind (including claims for labor,
materials, supplies and rent) which, if unpaid, might become a Lien upon any or
all of the Property of the Company or any Subsidiary; provided, however, that
neither the Company nor any Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim if the amount, applicability or validity
thereof shall currently be contested in good faith by appropriate proceedings
diligently conducted by or on behalf of the Company or its Subsidiary, and if
the Company or its Subsidiary shall have set up reserves therefor adequate under
GAAP.
6.7 Maintenance. (i) Continue to engage in business of the same
general type as now conducted by it or as contemplated hereby and maintain its
corporate existence, rights and franchises, except as otherwise permitted by
subsection 7.7, (ii) observe and comply with all Contractual Obligations and
Requirements of Law which if not complied with would involve the reasonable
possibility of having a Material Adverse Effect, and (iii) maintain its
Properties (and any Properties leased by or consigned to it or held under title
retention or conditional sales contracts) in good and workable condition,
ordinary wear and tear excepted, at all times and make all repairs,
replacements, additions, betterments and improvements to its Properties as are
needful and proper in accordance with customary industry practices so that the
business carried on in connection therewith may be conducted properly and
efficiently at all times.
6.8 Insurance. a) At all times, provide, maintain (with
financially sound and reputable insurance companies) and keep in force all of
the following:
i) Policies of insurance insuring the Facilities against loss or
damage by fire and lightning and against loss or damage by other risks
embraced by coverage of the type now known as the broad form of
extended coverage, including, but not limited to, riot and civil
commotion, vandalism and malicious mischief, and against such other
risks or hazards as the Agent may from time to time reasonably
designate in an amount sufficient to prevent the Agent or the Company
or any Subsidiary from becoming a co-insurer under the terms of the
applicable policies, but in any event in an amount not less than 100%
of the then full replacement cost thereof (exclusive of the cost of
excavations and foundations) without deduction for physical
depreciation, and each such policy shall contain a replacement cost
endorsement, if available.
ii) Policies of comprehensive general liability insurance
(primary and excess) insuring the Company (or its Subsidiaries, as the
case may be) against loss resulting in bodily injury, death or
property damage for an aggregate amount per annum satisfactory to the
Banks. The policy terms and conditions shall be customary for the
risks contemplated, and they shall contain standard cross liability
and severability of interests clauses.
iii) The Agent shall reserve the right to require that the
Company or any of its Subsiiaries secure flood insurance if such
insurance is commercially available up to the amount provided in
subsection 6.8(a)(i).
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36
iv) Such other insurance (including, but not limited to, business
interruption insurance, boiler and machinery and/or general
liability), in such amounts, as may from time to time be reasonably
required by the Agent.
v) Such other insurance with respect to its and its
Subsidiaries' Properties and businesses against such liabilities,
casualties, risks, and contingencies and in such types and amounts so
as to maintain adequate insurance coverage in accordance with normal
industry practice for businesses similar to that of the Company and
its Subsidiaries.
b) Furnish or cause to be furnished to the Agent upon request of the
Agent from time to time a summary of the insurance coverage of the Company and
its Subsidiaries, in form and substance satisfactory to the Agent and, if
requested, will furnish the Agent copies of the applicable policies.
c) All policies required by subsection 6.8: (a)(i) shall be issued
by companies approved by the Agent (such approval not to be unreasonably
withheld), (ii) shall be subject to the approval of the Agent as to amount,
expiration dates and a coverage in a form of industry standards, (iii) shall
provide that it cannot be modified as to basic policy conditions or canceled
without 30 days' prior written notice to the Agent, and (iv) may contain such
reasonable deductibles as are customary in the industry for Persons in
circumstances (other than economic circumstances) similar to those of the
Company or its Subsidiaries, as the case may be.
d) Furnish or cause to be furnished to the Agent a certificate of
each policy required under subsection 6.8(a) and, at least 30 days prior to the
expiration of any such policy, proof of issuance of a policy continuing in force
the coverage described in subsection 6.8(a) provided by the expiring policy. In
the event that the Company does not deposit with the Agent a new policy of
insurance or certificate thereof with evidence of payment of premiums within
such period, the Agent may, but shall not be obligated to, procure such
insurance and the Company shall reimburse the Agent for the premiums paid
thereon promptly upon demand, together with interest thereon at the rate
provided in subsection 4.6(c) from the date of written demand of the Agent for
reimbursement until the date of reimbursement to the Agent.
e) As soon as practicable after the happening of any property
casualty involving potential damage, liabilities, loss or claims in respect of
property in excess of $10,000,000 for each individual occurrence, the Company
shall give prompt written notice thereof to the Agent.
6.9 Payment of Expenses and Taxes. (a) Pay or reimburse the Agent
for all its reasonable out-of-pocket costs and expenses incurred in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, any of the Loan Documents and any other documents
prepared in connection therewith, and the consummation of the transactions
contemplated thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent, (b) pay or reimburse each Bank and the
Agent for all their reasonable costs and expenses incurred in connection with
the enforcement or preservation of any rights under the Loan Documents and any
such other documents, including, without limitation, reasonable fees and
disbursements of counsel to the Agent and to the several Banks, (c) pay,
indemnify and hold each Bank and the Agent harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
the Loan Documents and any such other documents, and (d) pay, indemnify, and
hold each Bank and the Agent harmless from and against any and all other
liabilities, obligations, losses, damages,
<PAGE>
37
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of the Loan Documents and any such other
documents (all the foregoing, collectively, the "indemnified liabilities"),
provided that the Company shall have no obligation hereunder with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the Agent or any such Bank, (ii) legal proceedings commenced
against the Agent or any such Bank by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such, or (iii) legal proceedings commenced
against any such Bank by the Agent or any other Bank. The agreements in this
subsection shall survive repayment of the Revolving Credit Loans and all other
amounts payable hereunder.
6.10 Accounts and Records. Keep books of record and account in which
full, true and correct entries will be made of all dealings or transactions in
relation to their respective business and activities, in accordance with GAAP.
6.11 Right of Inspection. Permit any officer, employee or agent of
the Agent or any of the Banks to visit and inspect any of the Properties of the
Company or any Subsidiary, examine the Company's or any Subsidiary's books of
record and accounts, take copies and extracts therefrom, and discuss the
affairs, finances and accounts of the Company or any Subsidiary with the
Company's or any Subsidiary's officers, accountants and auditors, all upon
reasonable notice and at such times during normal business hours and as often as
the Agent or any of the Banks may desire. If the Company or any Subsidiary
maintains computer tapes, discs, print-outs or other records in the possession
of another Person (including accountants and auditors), the Company hereby
agrees at the request of the Agent or any Bank to notify or cause such
Subsidiary to notify such other Person to permit the Agent or any Bank access to
the same upon reasonable notice and at all reasonable times during normal
business hours and to provide the Agent or any Bank with copies of any records
available to the Company or any Subsidiary which the Agent or any Bank may
request, at the cost and expense of the Company as to any action by the Agent
under this subsection (but not by the Banks unless a Default or Event of Default
has occurred and is continuing).
6.12 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Company or its Subsidiaries, as the case may be.
6.13 Environmental Laws.
a) Comply with, and ensure compliance by all tenants and subtenants,
if any, with, all applicable Relevant Environmental Laws and obtain and comply
with and maintain, and ensure that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Relevant Environmental Laws except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect;
b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under Relevant
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding Relevant Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not reasonably be
expected to have a Material Adverse Effect; and
c) Defend, indemnify and hold harmless the Agent and the Banks, and
their respective employees, agents, officers and directors, from and against any
and all claims, demands,
<PAGE>
38
penalties, fines, liabilities, settlements and damages, and reasonable costs and
expenses, of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of, noncompliance with
or liability under, any Relevant Environmental Law applicable to the operations
of the Company, any of its Subsidiaries or the Facilities, or any orders,
requirements or demands of Governmental Authorities related thereto, including,
without limitation, attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The agreements
in this paragraph shall survive repayment of the Loans and all other amounts
payable hereunder.
6.14 Clean-Down. For a period of 15 consecutive days during each
calendar year for which this Agreement is in effect, cause the aggregate
outstanding Working Capital Revolving Credit Loans to be $0.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, so long as any Commitment remains in
effect, any Revolving Credit Loan or Reimbursement Obligation remains
outstanding and unpaid or any other amount is owing to any Bank or the Agent
hereunder, the Company shall not and shall not permit any of its Subsidiaries
to, directly or indirectly:
7.1 Limitation on Debt. Incur, create, assume or suffer to exist any
Debt, except:
a) the Revolving Credit Loans and other Indebtedness;
b) Debt which is permitted in connection with the cost of Property
under clause (vii) of the definition of "Excepted Liens";
c) endorsements of negotiable or similar instruments for collection
or deposit in the ordinary course of business;
d) taxes, assessments or other government charges which are not yet
due or are being contested in good faith by appropriate action promptly
initiated and diligently conducted, if such reserve as shall be required by
GAAP shall have been made therefor;
e) additional Debt and Guarantee Obligations, together not to exceed
$10,000,000 at any one time outstanding;
f) Guarantee Obligations constituting performance guarantees provided
in the ordinary course of business by the Company and its Subsidiaries
supporting obligations of Subsidiaries which obligations have been incurred
in the ordinary course of business (including in connection with the
operation, construction or acquisition of pipelines and related
facilities);
g) Guarantee Obligations of the Company of EPCO's obligations under
the Lease Agreement, dated as of September 1, 1989, between Meridian Trust
Company, as Trustee, as Lessor, and EPCO, as Lessee; and
h) Debt set forth in Schedule 7.1.
7.2 Limitation on Liens. Create, incur, assume, permit or suffer to
exist any Lien on any of its Properties (now owned or hereafter acquired),
except:
<PAGE>
39
a) Excepted Liens;
b) additional Liens securing Debt not to exceed $10,000,000 at any
one time outstanding;
c) Liens granted by the Company or any of its Subsidiaries on its
ownership interests in Belvieu Environmental Fuels, securing the
obligations of Belvieu Environmental Fuels under the BEF Credit Agreement;
and
d) Liens set forth in Schedule 7.2.
7.3 Limitations on Fundamental Changes. Except as permitted by
subsection 7.4(b), enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all of its property, business or assets or any direct or
indirect interest in any Permitted Joint Venture any of the interests in which
is owned by a Subsidiary, or make any material change in its present method of
conducting business, except:
a) any Subsidiary of the Company may be merged or consolidated with or
into the Company or any one or more Subsidiaries of the Company (provided
that, if any of such Subsidiaries is not wholly owned by the Company, the
Limited Partner and the General Partner, taken together, the Subsidiary or
Subsidiaries in which the Company owns the greatest interest or the Company
shall be the continuing or surviving entity); and
b) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Company or any other Subsidiary in which, as to any Subsidiary not wholly
owned by the Company, the Limited Partner and the General Partner, taken
together, the Company owns at least the same percentage interests as the
Company owns in the transferor Subsidiary.
7.4 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
a) as permitted by subsection 7.3;
b) as long as no Default or Event of Default has occurred and is
continuing or would result therefrom the Company and its Subsidiaries may
sell or otherwise dispose of property in any fiscal year having an
aggregate value not in excess of 5% of Consolidated Tangible Net Worth
calculated on the last day of the prior fiscal quarter;
c) the sale of inventory in the ordinary course of business; and
d) the sale or disposition of equipment or other property or assets
that are no longer useful in the business of the Company or such Subsidiary or
are replaced by equipment or other property or assets of at least comparable
value and use.
7.5 Limitation on Dividends. Declare or pay any dividend on, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any shares of any class of Capital Stock of the Company or any Subsidiary or
any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of the
Company or any
<PAGE>
40
Subsidiary (such declarations, payments, setting apart, purchases, redemptions,
defeasances, retirements, acquisitions and distributions being herein called
"Restricted Payments"), except that (i) any Subsidiary may make Restricted
Payments to the Company and (ii) as long as no Default or Event of Default has
occurred and is continuing or would result therefrom, the Company may make
Restricted Payments once each fiscal quarter consisting of cash distributions in
accordance with the terms of the Partnership Agreement in order to enable the
Limited Partner to make cash distributions with respect to the Units and the
general partner interest of the Limited Partner.
7.6 Limitation on Investments. Make any Investment in any Person,
except:
a) extensions of trade credit in the ordinary course of business;
b) Investments in direct obligations of the United States of America
or any agency thereof having a maturity of less than one year;
c) Investments in certificates of deposit of maturities less than one
year, issued by commercial banks in the United States having capital and
surplus equal to or in excess of $100,000,000;
d) Investments made by any Subsidiary to the Company;
e) Investments in Subsidiaries and Permitted Joint Ventures, provided
that such Investments shall be permitted only to the extent that (A) (i)
such Investments are made from funds constituting "Available Cash" (as
defined in the Partnership Agreement) for such fiscal year or (without
duplication) from the proceeds of Investment Revolving Credit Loans, after
paying in full the "Minimum Quarterly Distribution" (as defined in the
Partnership Agreement) (X) for all Common Units for any previous calendar
quarter and (Y) for all Subordinated Units for the most recently ended
calendar quarter or (ii) such Investments are made from (without
duplication of investments permitted in other clauses of this subsection
7.6) proceeds of public offerings of Units contributed as equity to the
Company, and proceeds of distributions made by Permitted Joint Ventures any
of the interests of which is owned by a Subsidiary or proceeds of
distributions made by other Permitted Joint Ventures to the Company and/or
any Subsidiary, in each case received after the date hereof and (B) in any
such case, no Default or Event of Default shall have occurred and be
continuing, or would occur as a result of such Investment;
f) capital contributions, loans or other Investments by Subsidiaries
of the Company or any Permitted Joint Venture to or in the Company or any
Subsidiary, provided that no Default or Event of Default shall have
occurred and be continuing, or would occur as a result of such investment;
g) capital contributions or other Investments by the Company or any
Subsidiary to any existing Permitted Joint Venture any of the interests in
which are owned by the Company or a Subsidiary in accordance with the terms
of the constitutive documents of such Permitted Joint Venture, provided in
each such case that (x) no Default or Event of Default has occurred and is
continuing or would result therefrom and (y) such capital contribution or
Investment is financed with the proceeds of any of the items referred to in
subsections 7.7(e) or ;
h) capital contributions, loans or other Investments to the extent
made with the proceeds of public offerings of Units for the purposes
described in the offering documents for such public offerings; and
<PAGE>
41
i) other acquisitions of equity securities of, or assets constituting
a business unit of, any Person, provided that, such acquisitions do not
constitute an Investment under any of the foregoing clauses (a) through (g)
and immediately prior to and after giving effect to any such acquisition,
no Default or Event of Default shall have occurred or be continuing.
Notwithstanding the foregoing, the aggregate amount of the investments made in
Permitted Joint Ventures pursuant to paragraphs (e) and (g) above shall not
exceed $25,000,000 in any fiscal year (excluding Investments during the fiscal
year in which the Closing Date occurs with respect to the Wilprise Pipeline, the
Tristates Pipeline, the Baton Rouge Fractionator and the NGL Product Chiller).
7.7 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Agreements. (a) Make any optional payment or prepayment
on, redemption of or purchase of, or voluntarily defease, or directly or
indirectly voluntarily or optionally purchase, redeem, retire or otherwise
acquire, any Debt (other than the Revolving Credit Loans), (b) amend, modify or
change, or consent or agree to any amendment, modification or change to, any of
the terms of any Debt (other than any such amendment, modification or change
which would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon), (c) amend, modify or change, or consent to any amendment,
modification or change to, any of the terms of, the Partnership Agreement, the
Management Agreement, the Company's certificate of limited partnership or any
agreement under which Debt of any Permitted Joint Venture any of the interests
in which is owned by a Subsidiary is issued, evidenced or secured, except to the
extent the same could not reasonably be expected to have a Material Adverse
Effect or (d) waive or otherwise relinquish any of its rights or causes of
action arising out of the Partnership Agreement, the Management Agreement, the
Company's certificate of limited partnership or any agreement under which Debt
of any Permitted Joint Venture any of the interests in which is owned by a
Subsidiary is issued, evidenced or secured.
7.8 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a)(i) otherwise permitted under this Agreement, and (ii)
upon fair and reasonable terms no less favorable to the Company or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate or (b) in existence
on the Closing Date and set forth on Schedule 7.8.
7.9 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Company or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Company or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Company or such Subsidiary.
7.10 Limitation on Changes in Fiscal Year. Permit the fiscal year of
the Company to end on a day other than December 31.
7.11 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary or Permitted Joint Venture, except for
those businesses in which the Company and its Subsidiaries and the Permitted
Joint Ventures are engaged on the date of this Agreement.
7.12 Constituent Documents. Permit the amendment, waiver or
modification of the limited partnership agreement, limited liability company
agreement or certificate of formation or incorporation of any Subsidiary if such
amendment could reasonably be expected to have a Material Adverse Effect or
would authorize or issue any Capital Stock not authorized or issued on the
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42
Closing Date, except to the extent such authorization or issuance would have the
same substantive effect as any transaction permitted by subsection 7.4.
7.13 Limitation on Restrictions Affecting Subsidiaries. Enter into,
or suffer to exist, any agreement with any Person, other than the Banks pursuant
hereto, which prohibits or limits the ability of any Subsidiary to (a) pay
dividends or make other distributions or pay any Debt owed to the Company or any
Subsidiary, (b) make loans or advances to or make other investments in the
Company or any Subsidiary, (c) transfer any of its properties or assets to the
Company or any Subsidiary or (d) transfer any of its properties or assets to the
Company or any Subsidiary.
7.14 Creation of Subsidiaries. Create or acquire any new Subsidiary
of the Company or any of its Subsidiaries, unless, immediately upon the creation
or acquisition of any such Subsidiary, no Default or Event of Default shall have
occurred and be continuing after giving effect thereto.
7.15 Hazardous Materials. Except to the extent that the same could
not reasonably be expected to have a Material Adverse Effect, permit the
manufacture, storage, transmission or presence of any Hazardous Substance over
or upon any of its properties except in accordance with all applicable
Requirements of Law or release, discharge or otherwise dispose of any Hazardous
Substance on any of its properties except that the Company and its Subsidiaries
may treat, store and transport petroleum, its derivatives, by-products and other
hydrocarbons, hydrogen sulfide and sulfur dioxide in the ordinary course of
their business.
7.16 New Partners. Permit any Permitted Joint Venture, the interests
in which are owned by the Company or any Subsidiary, formed or acquired after
the date hereof to admit any new partners or issue or sell any partnership
interests after the date on which the Company or any Subsidiary obtains its
interest therein, if in any such case the result thereof would be to dilute the
economic interest of the Company or such Subsidiary in such Permitted Joint
Venture.
7.17 Holding Companies. Notwithstanding any other provisions of this
Agreement and the other Loan Documents, permit any Subsidiary which is a general
partner in or owner of a general partnership interest in a Permitted Joint
Venture to incur or suffer to exist any obligations or indebtedness of any kind,
whether contingent or fixed (excluding any contingent liability of such
Subsidiary to creditors of such Permitted Joint Venture arising solely as a
result of its status as a general partner or owner of such Permitted Joint
Venture) or create or suffer to exist any Liens, in each case except to the
extent any such obligations, indebtedness or Liens are otherwise permitted by
this Agreement; or permit any Subsidiary which is a general partner in or owner
of a general partnership interest in a Permitted Joint Venture to acquire any
property or asset after the Closing Date (or, if later, the date of acquisition
or formation of such Permitted Joint Venture) except for distributions made to
it by such Permitted Joint Venture; or permit any Subsidiary which is a general
partner in or owner of a general partnership interest in a Permitted Joint
Venture to engage in any business or activity other than holding the general
partnership interest in (or other ownership interest) such Permitted Joint
Venture held by it on the date of formation of such Permitted Joint Venture.
7.18 Actions by Permitted Joint Ventures. Consent or agree to or
acquiesce in any Permitted Joint Venture, the interests in which are owned by a
Subsidiary, changing its policy of making distributions of available cash to
partners.
7.19 Hedging Transactions. Enter into any interest rate, cross-
currency, commodity, equity or other security, swap, collar or similar hedging
agreement or purchase any option to purchase or sell or to cap any interest
rate, cross-currency, commodity, equity or other security, in any such case,
other than to hedge risk exposures in the operation of its business, ownership
of assets or the management of its liabilities.
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43
7.20 ERISA Compliance. Permit any Plan maintained by it, any
Subsidiary or any Commonly Controlled Entity to:
a) engage in any "prohibited transaction" as such term is defined in
Section 406 of ERISA or Section 4975 of the Code;
b) incur any "accumulated funding deficiency", whether or not waived,
as such term is defined in Section 302 of ERISA;
c) terminate any Single Employer Plan in a manner which could result
in the imposition of a Lien on the Property of the Company or any
Subsidiary pursuant to Section 4068 of ERISA; or
d) become subject to any other condition, which could subject the
Company, any Subsidiary or any Commonly Controlled Entity to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property, financial or other condition of the
Company, its Subsidiaries and any Commonly Controlled Entity taken as a
whole.
7.21 Financial Condition Covenants.
a) Tangible Net Worth. Permit its Consolidated Tangible Net Worth as
of the last day of any fiscal quarter of the Company to be less than
$257,000,000 plus 75% of the net cash proceeds received by the Company or any of
its Subsidiaries from the issuance or sale of Capital Stock (to the extent the
proceeds thereof are contributed in the form of equity to the Company),
including those issued and so contributed on the date hereof (or, to the extent
issued for other than cash, the amount of the consideration therefor which
results in an increase in Consolidated Tangible Net Worth in accordance with the
definition thereof).
b) Ratio of EBITDA to Consolidated Interest Expense. For any fiscal
quarter of the Company, permit the ratio of EBITDA for the 12-month period ended
on the last day of such fiscal quarter to Consolidated Interest Expense for such
period to be less than 3.50 to 1.0.
c) Ratio of Total Indebtedness to EBITDA. Permit the Total
Indebtedness/EBITDA Ratio to exceed 2.25 to 1.0 as of the last day of any fiscal
quarter of the Company.
For purposes of clauses (b) and (c) of this subsection, EBITDA shall mean,
(i) at the date of determination occurring on September 30, 1998, the product of
(A) EBITDA for the two month period ending September 30, 1998 multiplied by (B)
six (6), (ii) at the date of determination occurring on December 31, 1998, the
product of (A) EBITDA for the five month period ending December 31, 1998
multiplied by (B) 12/5, (iii) at the date of determination occurring on March
31, 1999, the product of (A) EBITDA for the eight month period ending March 31,
1999, multiplied by (B) 3/2 and (iv) for the date of determination occurring on
June 30, 1999, the product of (A) EBITDA for the 11-month period ending on June
30, 1999 multiplied by (B) 12/11.
SECTION 8. EVENTS OF DEFAULT
8.1 Events. Any of the following events shall be considered an
"Event of Default" as that term is used herein:
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44
a) Payments - (i) default is made in the payment or prepayment when due
of any installment of principal of the Revolving Credit Loans or any
Reimbursement Obligation; or (ii) default is made in the payment of any
interest on the Revolving Credit Loans or any commitment fee provided for
herein or other Indebtedness (other than Reimbursement Obligations), within
five days after any such amount becomes due in accordance with the terms
thereof or hereof; or
b) Representations and Warranties - any representation or warranty by
the Company herein or in any other Loan Document, or in any certificate,
request or other document furnished pursuant to or under this Agreement or
any other Loan Document proves to have been incorrect in any material
respect as of the date when made or deemed made; or
c) Affirmative Covenants - default is made in the due observance or
performance by the Company or any Subsidiary of any of the covenants or
agreements contained in Section 6 (other than subsections 6.4(a) and 6.14)
or any other Section or subsection (except Section 7) of this Agreement,
and such default continues unremedied for a period of 30 days after the
earlier of (i) notice thereof being given by the Agent at the request or
with the consent of the Required Banks to the Company, or (ii) such default
otherwise becoming known to the Company or any Subsidiary; or
d) Negative Covenants - default is made in the due observance or
performance by the Company or any Subsidiary of any of the covenants or
agreements contained in subsections 6.4(a) or 6.14 or Section 7 of this
Agreement; or
e) Other Loan Document Obligations - default is made in the due
observance or performance by the Company or any Subsidiary of any of the
other covenants or agreements contained in any Loan Document other than
this Agreement, and such default continues unremedied for a period of 30
days after notice thereof being given by the Agent at the request or with
the consent of the Required Banks to the Company, or beyond the expiration
of any applicable grace period which may be expressly allowed under such
Loan Document; or
f) Involuntary Bankruptcy or Other Proceedings - an involuntary case
or other proceeding shall be commenced against the Company or any
Subsidiary which seeks liquidation, reorganization or other relief with
respect to it or its debts or other liabilities under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its Property, and such
involuntary case or other proceeding shall remain undismissed or unstayed
for a period of 30 days; or an order for relief against the Company or any
Subsidiary shall be entered in any such case under the Federal Bankruptcy
Code; or
g) Voluntary Petitions, etc. - the Company or any Subsidiary shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its Property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall be unable to or shall
fail generally to, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take any corporate action to
authorize or effect any of the foregoing; or
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45
h) Discontinuance of Business - the Company discontinues its usual
business; or
i) Default on Other Debt - the Company, any of its Subsidiaries or
Permitted Joint Ventures shall default (A) in any payment of principal of
or interest on any other Debt, which Debt is in the original principal
amount of $10,000,000 or more for each default, beyond any period of grace
provided with respect thereto, or (B) in the performance of any other
agreement, term, or condition relating to any other Debt if the effect of
such default is to cause such obligation to become due before its stated
maturity or to permit the holder(s) of such obligation or the trustee(s)
under any such agreement or instrument to cause such obligation to become
due prior to its stated maturity, whether or not such default or failure to
perform should be waived by the holder(s) of such obligation or such
trustee(s); or
j) Undischarged Judgments - the Company or any of its Subsidiaries or
Permitted Joint Ventures shall fail within 30 days to pay, bond or
otherwise discharge any judgment or order for the payment of money in
excess of $5,000,000 that is not otherwise being satisfied in accordance
with its terms and is not stayed on appeal or otherwise being appropriately
contested in good faith; or
k) If at any time the Company or any of its Subsidiaries or Permitted
Joint Ventures shall become liable for remediation and/or environmental
compliance expenses and/or fines, penalties or other charges which, in the
aggregate, are in excess of the Material Environmental Amount for the
Company and its Subsidiaries; or
l) ERISA Events - (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, (iii) a Reportable Event shall occur with respect to,
or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment
of a trustee is, in the reasonable opinion of the Required Banks, likely to
result in the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Company or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Banks is likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or Reorganization
of, a Multiemployer Plan or (vi) any other event or condition shall occur
or exist, with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such events or
conditions, if any, could subject the Company or any of its Subsidiaries to
any tax, penalty or other liabilities in the aggregate material in relation
to the business, operations, property or financial or other condition of
the Company or any of its Subsidiaries; or
m) A Change of Control shall occur.
n) Activities of the Limited Partner - the Limited Partner shall
(a) conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations other than
those incidental to its ownership of the limited partner interests in the
Company, (b) incur, create, assume or suffer to exist any Debt or other
liabilities or financial obligations, other than (i) nonconsensual
obligations imposed by operation of law and (ii) obligations with respect
to the Units or (c) own, lease, manage or otherwise operate any properties
or assets (including cash and Cash Equivalents), other
<PAGE>
46
than (i) the limited partner interests in the Company, (ii) ownership
interests (not to exceed 1% in each such case) of a Subsidiary and (iii)
cash received in connection with dividends made by the Company in
accordance with subsection 7.5 pending application to the holders of the
Units and the General Partner Interest.
o) Management Agreement - (i) The Management Agreement shall
cease to be in full force and effect prior to the end of the initial term
thereof substantially as in effect on the date hereof; or (ii) EPCO or the
General Partner shall default in the observance or performance of any
material provision of the Management Agreement;
8.2 Remedies. a) Upon the occurrence of any Event of Default
described in subsection 8.1(f) or (g), the Revolving Credit Commitments and
other lending obligations, if any, of the Banks hereunder shall immediately
terminate, and the entire principal amount of all Indebtedness then outstanding
(including the Reimbursement Obligations) together with interest then accrued
thereon shall become immediately due and payable, all without written notice and
without presentment, demand, protest, notice of protest or dishonor or any other
notice of default of any kind, all of which are hereby expressly waived by the
Company.
b) Upon the occurrence and at any time during the continuance of any
other Event of Default specified in subsection 8.1, the Agent shall at the
request, or may with the consent of, the Required Banks, by written notice to
the Company (i) declare the entire principal amount of all Indebtedness then
outstanding (including the Reimbursement Obligations) together with interest
then accrued thereon to be immediately due and payable without presentment,
demand, protest, notice of protest or dishonor or other notice of default of any
kind, all of which are hereby expressly waived by the Company and/or (ii)
terminate the Revolving Credit Commitments and other lending obligations, if
any, of the Banks hereunder unless and until the Agent and the Banks shall
reinstate the same in writing. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Company shall at such time deposit
in a cash collateral account opened by the Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts
held in such cash collateral account shall be applied by the Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Company
hereunder and under the other Loan Documents. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Company hereunder and under
the other Loan Documents shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Company (or such other
Person as may be lawfully entitled thereto).
8.3 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default or if (ii) the Company becomes insolvent,
however evidenced, the Agent and the Banks are hereby authorized at any time and
from time to time, without notice to the Company (any such notice being
expressly waived by the Company), to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by the Agent or any Bank to or for the
credit or the account of the Company against any and all of the Indebtedness
(including the Reimbursement Obligations) of the Company irrespective of whether
or not the Agent or any Bank shall have made any demand under this Agreement or
the Revolving Credit Loans and although such obligations may be unmatured. If
an amount to be set-off by any Bank is to be applied to obligations of the
Company to such Bank other than the Indebtedness, such amount shall be applied
ratably to such other obligations and to the Indebtedness. If any Bank (a
"benefitted Bank") shall at any time receive any payment of all or part of its
Revolving Credit Loans, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature
<PAGE>
47
referred to in clause (f) or (g) of subsection 8.1, or otherwise) in a greater
proportion than any such payment to and collateral received by any other Bank,
if any, in respect of such other Bank's Revolving Credit Loans, or interest
thereon, such benefitted Bank shall purchase for cash from the other Banks such
portion of each such other Bank's Revolving Credit Loans, or shall provide such
other Banks with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Bank to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Banks;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Bank, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Company agrees that each Bank so purchasing
a portion of another Bank's Revolving Credit Loan may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Bank were the direct holder of such portion. In case
any payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made. The Agent and the Banks agree promptly to notify the
Company after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of the Agent and the Banks under this subsection are in addition to
other rights and remedies (including, without limitation, other rights of set-
off) which the Agent or the Banks may have.
SECTION 9. CONDITIONS OF LENDING
9.1 Conditions to Initial Revolving Credit Loans and Letters of Credit.
The effectiveness of this Agreement and the agreement of each Bank to make
available the Revolving Credit Loans and to participate in the initial issuance
or continuation of the Letters of Credit on the Closing Date pursuant to this
Agreement are subject to the satisfaction of the conditions precedent stated in
this subsection 9.1 wherein each document to be delivered to the Agent or any
Bank shall be in form and substance satisfactory to the Agent or such Bank and
(except for the Revolving Credit Notes and the notices referred to in subsection
11.1(a)) in sufficient copies for each Bank:
a) Credit Agreement and Revolving Credit Notes. The Company shall have
duly and validly executed and delivered to the Agent this Agreement and,
for the account of each Bank which so requests, a Revolving Credit Note.
b) Compliance Certificate. The Agent shall have received a
compliance certificate, which shall be true and correct, in the form of
Exhibit C, duly and properly executed by a Responsible Officer of the
Company, and dated as of the date of this Agreement.
c) Secretary's Certificates. The Agent shall have received
certificates of the Secretary or Assistant Secretary of the Company setting
forth (x) resolutions of its board of directors (or other equivalent body)
in form and substance satisfactory to the Agent with respect to the
authorization of this Agreement and any other Loan Documents provided
herein and the officers of the Company authorized to sign such instruments,
(y) specimen signatures of the officers so authorized and (z) a duly
executed copy of the Partnership Agreement and the Management Agreement
certified by the General Partner and a certificate of limited partnership
of the Company.
d) Legal Opinions. The Agent shall have received, with a counterpart
for each Bank, the following executed legal opinions:
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48
i) the executed legal opinion of Snell & Smith, counsel to the
Company, dated the Closing Date and substantially in the form of
Exhibit B-1, with such changes therein as shall be requested or
approved by the Agent;
ii) the executed legal opinion of Michael R. Johnson, Esq.,
general counsel of the Company, dated the Closing Date and
substantially in the form of Exhibit B-2, with such changes therein as
shall be requested or approved by the Agent;
Each such legal opinion shall cover such matters incident to the
transactions contemplated by this Agreement and the Loan Documents as the
Agent may reasonably require.
e) Approvals. All governmental and third party approvals (including
landlords' and other consents) necessary in connection with the
Transactions, the continuing operations of the Company and its Subsidiaries
and the transactions contemplated hereby shall have been obtained and be in
full force and effect, and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent
authority that would restrain, prevent or otherwise impose adverse
conditions on the Transactions or the financing contemplated hereby.
f) Transactions. The Transactions shall have been consummated in form
and substance satisfactory to the Banks.
g) EPCO Credit Agreement. All conditions precedent to the
effectiveness of the Credit Agreement, to be dated as of July 31, 1998,
among EPCO, the lenders parties thereto and The Chase Manhattan Bank, as
agent (the "EPCO Credit Agreement"), shall have been satisfied or waived to
the satisfaction of the Banks.
h) Offering. The Limited Partner shall have received gross cash
proceeds of at least $225,000,000 from the offering of the Common Units
(before deducting underwriting discounts and commissions and expenses of
such offering), pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the net proceeds thereof shall
have been contributed by the Limited Partner to the Company.
i) Financial Statements. The Banks shall have received and be
reasonably satisfied with (i) the Pro Forma Balance Sheet and (ii) the
financial statements referred to in subsection 5.1(b), and such financial
statements shall not, in the judgment of the Banks, reflect any material
adverse change in the consolidated financial condition of the Company or
EPCO as reflected in the financial statements or projections previously
delivered to the Banks.
j) No Defaults. There shall exist no event of default (or condition
which would constitute an event of default with the giving of notice or the
passage of time) under any material Capital Stock, financing agreements,
lease agreements, partnership agreements or other material contracts of the
Company, its Subsidiaries, or to the Company's knowledge, the Permitted
Joint Ventures.
k) Fees. The Agent and the Banks shall have received all fees and
expenses required to be paid on or before the Closing Date.
l) No Material Adverse Effect. There shall have occurred, in the sole
opinion of the Required Banks, no change, either in any case or in the
aggregate, in the condition, financial or otherwise, of the Company or any
Subsidiary or with respect to the Company's or any Subsidiary's Properties
from the facts represented in this Agreement, any other Loan
<PAGE>
49
Document or in the S-1, which could reasonably be expected to have a
Material Adverse Effect.
9.2 Conditions to Each Revolving Credit Loan and Letter of Credit.
The several obligations of the Banks to make any Revolving Credit Loans on any
date and to participate in the issuance or continuation of any Letters of Credit
on any date are subject to the satisfaction of the conditions precedent stated
in this subsection 9.2 wherein each document to be delivered to the Agent or any
Bank shall be in form and substance satisfactory to the Agent and such Bank and
in sufficient copies for each Bank.
a) Representations and Warranties. Each of the representations and
warranties made by the Company, in or pursuant to this Agreement or any
other Loan Document shall be true and correct in all material respects on
and as of such date as if made on and as of such date (unless such
representations and warranties are stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date).
b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Revolving
Credit Loans or the Letters of Credit requested to be made or opened, as
the case may be, on such date.
c) No Litigation. No litigation, investigation or proceeding before
or by any arbitrator or Governmental Authority shall be continuing or
threatened against the Company or any Subsidiary or any of the officers or
directors of any thereof in connection with this Agreement or any other
Loan Document.
d) Additional Documents. The Agent shall have received each
additional document, instrument, legal opinion or item of information
reasonably requested by the Agent, including, without limitation, a copy of
any debt instrument, security agreement or other material contract to which
the Company or any Subsidiary may be a party.
e) Additional Matters. All corporate, partnership and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and any
other Loan Document shall be satisfactory in form and substance to the
Agent, and the Agent shall have received such other documents, legal
opinions and other opinions in respect of any aspect or consequence of the
transactions contemplated hereby as they shall reasonably request. Each
borrowing by, and each issuance of a Letter of Credit for the account of,
the Company hereunder shall constitute a representation and warranty by the
Company as of the date of such borrowing or issuance, as the case may be,
that the conditions contained in this subsection 9.2 have been satisfied.
SECTION 10. THE AGENT
10.1 Appointment. Each Bank hereby irrevocably designates and
appoints the Agent as the agent of such Bank under this Agreement and the other
Loan Documents, and each such Bank irrevocably authorizes the Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
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50
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
10.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agent under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of the Company to perform its obligations hereunder or thereunder. The Agent
shall not be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Company.
10.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Company), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Revolving
Credit Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Banks (or, if so specified by
this Agreement, all Banks) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Banks (or, if so specified by this
Agreement, all Banks), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks and all future holders of
the Revolving Credit Loans.
10.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the Banks. The
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Banks (or, if so specified by this
Agreement, all Banks); provided that unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
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51
10.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates have made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company or any affiliate thereof, shall be
deemed to constitute any representation or warranty by the Agent to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Company and its affiliates and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Bank also represents that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company and its affiliates. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Company or any affiliate
thereof that may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Banks agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Company and without
limiting the obligation of the Company to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought under this subsection 10.7 (or, if indemnification is sought after the
date upon which the Revolving Credit Commitments shall have terminated and the
Revolving Credit Loans shall have been paid in full, ratably in accordance with
such Commitment Percentages immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (including, without limitation, at any time following the
payment of the Revolving Credit Loans) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Revolving Credit
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Bank shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Revolving Credit Loans and all other amounts payable hereunder. The
Administrative Agent shall have the right to deduct any amount owed to it by any
Bank under this subsection 10.7 from any payment made by it to such Bank
hereunder.
10.8 Agent in Its Individual Capacity. The Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Company as though the Agent was not the Agent. With respect
to its Revolving Credit Loans made or renewed by it and with respect to any
Letter of Credit issued or participated in by it, the Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any Bank
and may exercise the same as though it were not the Agent, and the terms "Bank"
and "Banks" shall include the Agent in its individual capacity.
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52
10.9 Successor Agent. The Agent may resign as Agent upon 10 days'
notice to the Banks and the Company. If the Agent shall resign as Agent under
this Agreement and the other Loan Documents, then the Required Banks shall
appoint from among the Banks a successor agent for the Banks, which successor
agent shall (unless an Event of Default shall have occurred and be continuing)
be subject to approval by the Company (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Agent's rights, powers and duties as Agent shall be terminated, without any
other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Revolving Credit Loans. If no
successor agent has accepted appointment as Agent by the date that is 10 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Banks shall
assume and perform all of the duties of the Agent hereunder until such time, if
any, as the Required Banks appoint a successor agent as provided for above.
After any retiring Agent's resignation as Agent, the provisions of this Section
10 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement and the other Loan Documents.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, request or demand required or permitted to
be given or made under or in connection with this Agreement or the Revolving
Credit Loans shall be in writing and shall be mailed by first class or express
mail, postage prepaid, or sent by telex, telegram, telecopy or other similar
form of rapid transmission confirmed by mailing (by first class or express mail,
postage prepaid) written confirmation at substantially the same time as such
rapid transmission, or personally delivered to an officer of the receiving
party. All such communications shall be mailed, sent or delivered,
a) if to the Company, to the address shown opposite its signature to
this Agreement, or to such other address or to such individual's or
department's attention as the Company may have furnished the Agent and the
Banks in writing; or
b) if to the Agent, to its address shown opposite its signature to
this Agreement, or to such other address or to such individual's or
department's attention as it may have furnished to the Company and the
Banks in writing; or
c) if to the Banks, to their respective addresses shown opposite
their respective signatures to this Agreement, or to such other address or
to such individual's or department's attention as any Bank may have
furnished the Company and the Agent in writing.
Any notice, request or demand so addressed and mailed shall be deemed to be
given when so mailed, except that any notice, request or demand to or upon the
Agent or the Banks pursuant to subsection 2.3, 2.4, 3.2, 4.1 or 4.4 or
communications related to such notice, request or demand shall not be effective
until actually received by the Agent; and any notice, request or demand so sent
by rapid transmission shall be deemed to be given when receipt of such
transmission is acknowledged, and any request or demand so delivered in person
shall be deemed to be given when receipted for by, or actually received by, an
authorized officer of the Company, the Agent or a Bank, as the case may be.
11.2 Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is (a) consented to in writing by the Required Banks and (b) in writing
and is signed by the Company
<PAGE>
53
(and/or any other Person which is a party to any other Loan Document being
amended or with respect to which a waiver is being obtained) and the Agent;
provided that no such amendment or waiver shall, (a) unless signed by all the
Banks, (i) change the Revolving Credit Commitment of any Bank or subject any
Bank to any additional obligation, (ii) change the principal of or rate of
interest on the Revolving Credit Loans or any fees hereunder, (iii) postpone the
date fixed for any payment of principal of or interest on the Revolving Credit
Loans, the Indebtedness or any fees hereunder, (iv) change the Commitment
Percentages or reduce the percentage specified in the definition of Required
Banks, (v) defer or reduce any payment of principal or interest on the Revolving
Credit Loans or (vi) amend, modify or waive any provision of this subsection,
(b) amend, modify or waive any provision of Sections 3 or 10 without the written
consent of the then Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding upon
the Company, the Banks, the Agent and all future holders of the Revolving Credit
Loans. In the case of any waiver, the Company, the Banks and the Agent shall be
restored to their former position and rights hereunder and under the outstanding
Revolving Credit Loans, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
11.3 Invalidity. In the event that any one or more of the provisions
contained in this Agreement or any other Loan Document shall, for any reason, be
held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other Loan Document.
11.4 Successors and Assigns; Participations; Purchasing Banks.
a) This Agreement shall be binding upon and inure to the benefit of
the Company, the Banks, the Agent, all future holders of the Revolving Credit
Loans and their respective successors and assigns, except that the Company may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Bank.
b) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any
Revolving Credit Loan owing to such Bank, any Commitment of such Bank or any
other interest of such Bank hereunder and under the other Loan Documents. In
the event of any such sale by a Bank of participating interests to a
Participant, such Bank's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the holder of
any such Revolving Credit Loan for all purposes under this Agreement and the
other Loan Documents, and the Company and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and the other Loan Documents. The Company
agrees that if amounts outstanding under this Agreement and the Revolving Credit
Loans are due or unpaid, or shall have been declared or shall have become due
and payable upon the occurrence of an Event of Default, each Participant shall
be deemed to have the right of setoff in respect of its participating interest
as if the amount of its participating interest were owing directly to it as a
Bank under this Agreement or any Note, provided that such Participant shall only
be entitled to such right of setoff if it shall have agreed in the agreement
pursuant to which it shall have acquired its participating interest to share
with the Banks the proceeds thereof as provided in subsection 8.3. The Company
also agrees that each Participant shall be entitled to the benefits of
subsections 4.11, 4.12 and 4.13 with respect to its participation in the
Revolving Credit Commitments and the Revolving Credit Loans outstanding from
time to time; provided, that no Participant shall be entitled to receive any
greater amount pursuant to such subsections than the transferor Bank would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant had no such transfer
occurred.
<PAGE>
54
c). Any Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to any Bank or any affiliate
thereof and, with the consent of the Company (so long as no Event of Default
shall have occurred and is continuing, in which case the consent of the Company
shall not be required) and the Agent (which in each case shall not be
unreasonably withheld), to one or more additional banks or financial
institutions ("Purchasing Banks") all or any part of its rights and obligations
under this Agreement and the Revolving Extensions of Credit pursuant to a
Commitment Transfer Supplement, substantially in the form of Exhibit D, executed
by such Purchasing Bank, such transferor Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the Company and the
Agent) and delivered to the Agent for its acceptance and recording in the
Register; provided, that any such sale shall be accompanied by a ratable sale
(based on the ratable amount sold by the transferor Bank under this Agreement)
to such Purchasing Bank of such transferor Bank's loans and commitments under
the EPCO Credit Agreement. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date determined pursuant to
such Commitment Transfer Supplement, (x) the Purchasing Bank thereunder shall be
a party hereto and, to the extent provided in such Commitment Transfer
Supplement, have the rights and obligations of a Bank hereunder with a
Commitment as set forth therein, and (y) the transferor Bank thereunder shall,
to the extent provided in such Commitment Transfer Supplement, be released from
its obligations under this Agreement (and, in the case of a Commitment Transfer
Supplement covering all or the remaining portion of a transferor Bank's rights
and obligations under this Agreement, such transferor Bank shall cease to be a
party hereto). Such Commitment Transfer Supplement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Bank and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Bank of all or a
portion of the rights and obligations of such transferor Bank under this
Agreement and the Revolving Credit Notes. On or prior to the Transfer Effective
Date determined pursuant to such Commitment Transfer Supplement, the Company, at
its own expense, shall, to the extent requested by the Purchasing Bank or the
transferor Bank, execute and deliver to the Agent in exchange for the
surrendered Revolving Credit Note a new Revolving Credit Note to the order of
such Purchasing Bank in an amount equal to the Revolving Credit Commitment
assumed by it pursuant to such Commitment Transfer Supplement and, if the
transferor Bank has retained a Commitment hereunder, new Revolving Credit Notes
to the order of the transferor Bank in an amount equal to the Revolving Credit
Commitment retained by it hereunder. Such new Revolving Credit Notes shall be
dated the Closing Date and shall otherwise be in the form of the Revolving
Credit Notes replaced thereby. The Revolving Credit Notes surrendered by the
transferor Bank shall be returned by the Agent to the Company marked
"cancelled".
d) The Agent shall maintain at its address referred to in subsection
11.1 a copy of each Commitment Transfer Supplement delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Banks and the Revolving Credit Commitment of, and principal amount of the
Revolving Credit Loans owing to, each Bank from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Company, the Agent and the Banks may treat each Person whose name is recorded in
the Register as the owner of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by the Company or any
Bank at any reasonable time and from time to time upon reasonable prior notice.
e) Upon its receipt of a Commitment Transfer Supplement executed by a
transferor Bank and Purchasing Bank (and, in the case of a Purchasing Bank that
is not then a Bank or an affiliate thereof, by the Company and the Agent),
together with payment to the Agent of a registration and processing fee of
$4,000, the Agent shall (i) promptly accept such Commitment Transfer Supplement,
(ii) on the Transfer Effective Date determined pursuant thereto record the
information contained therein in the Register and (iii) give notice of such
acceptance and recordation to the Banks and the Company.
<PAGE>
55
f) The Company authorizes each Bank to disclose to any Participant or
Purchasing Bank (each, a "Transferee") and any prospective Transferee any and
all financial information in such Bank's possession concerning the Company and
its affiliates which has been delivered to such Bank by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such Bank by
or on behalf of the Company in connection with such Bank's credit evaluation of
the Company and its affiliates prior to becoming a party to this Agreement.
g) If, pursuant to this subsection, any interest in this Agreement or
any Revolving Credit Loan is transferred to any Transferee which is organized
under the laws of any jurisdiction other than the United States or any state
thereof, the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Agent and the Company) that under applicable
law and treaties no taxes will be required to be withheld by the Agent, the
Company or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Revolving Credit Loans, (ii) to furnish to the
transferor Bank (and, in the case of any Purchasing Bank registered in the
Register, the Agent and the Company) either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 (wherein such Transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree (for the benefit of the
transferor Bank, the Agent and the Company) to provide the transferor Bank (and,
in the case of any Purchasing Bank registered in the Register, the Agent and the
Company) a new Form 4224 or Form 1001 upon the expiration or obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
h) Nothing herein shall prohibit any Bank from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
11.5 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder or under the Loan Documents, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided or provided in the
Loan Documents are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
11.6 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement, the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Agent, (b) to pay or reimburse each Bank and the Agent for all its costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, fees and disbursements of counsel to
the Agent and to the several Banks and (c) to pay, indemnify, and hold each Bank
and the Agent harmless from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, indemnify, and hold each
Bank and the Agent harmless from and against any and all other liabilities,
obligations, losses, damages,
<PAGE>
56
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents or in respect of the use of the proceeds of the
Revolving Credit Loans hereunder (all the foregoing, collectively, the
"indemnified liabilities"), provided that the Company shall have no obligation
hereunder with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of such indemnified party. The agreements in
this subsection shall survive repayment of the Revolving Credit Loans and all
other amounts payable hereunder.
11.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.8 Several Obligations. The respective obligations of the Banks
under this Agreement are several and not joint, and no Bank shall be the partner
or agent of any other (except to the extent to which the Agent is authorized to
act as such). The failure of any Bank to perform any of its obligations
hereunder shall not relieve any other Bank from any of its obligations
hereunder.
11.9 Interest. a) It is the intention of the parties hereto that
each Bank shall conform strictly to usury laws applicable to it. Accordingly,
if the transactions contemplated hereby would be usurious as to any Bank under
laws applicable (including the laws of the United States of America, the State
of New York or any other jurisdiction whose laws may be mandatorily applicable
to such Bank notwithstanding the other provisions of this Agreement), then, in
that event, notwithstanding anything to the contrary in this Agreement or in any
other Loan Document, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under law applicable to any Bank that
is contracted for, taken, reserved, charged or received by such Bank under this
Agreement or under any other Loan Document shall under no circumstances exceed
the maximum amount allowed by such applicable law (the "Maximum Rate"), and any
excess shall be credited by such Bank on the principal amount of the Revolving
Credit Loans (or, if the principal amount of the Revolving Credit Loans shall
have been or would thereby be paid in full, refunded by such Bank to the
Company); and (ii) in the event that the maturity of the Revolving Credit Loans
is accelerated by reason of an election of the holder thereof resulting from any
Event of Default under this Agreement or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest under law applicable to any Bank may never include more than the
maximum amount allowed by such applicable law, and excess interest, if any,
provided for in this Agreement or otherwise shall be canceled automatically by
such Bank as of the date of such acceleration or prepayment and, if theretofore
paid, shall be credited by the Bank on the principal amount of the Revolving
Credit Loans (or, if the principal amount of the Revolving Credit Loans shall
have been paid in full, refunded by such Bank to the Company).
b) Recapture. If at any time the rate of interest on any Revolving
Credit Loans would exceed the Maximum Rate but for the foregoing limitation, the
interest rate on such Revolving Credit Loans shall remain at the Maximum Rate,
notwithstanding subsequent reduction of the rate of interest on such Revolving
Credit Loans, until the total amount of interest accrued thereon equals the
amount of interest which would have accrued if the rate of interest on such
Revolving Credit Loans had not been limited to the Maximum Rate, but nothing in
this paragraph shall effect or extend the maturity of such Revolving Credit
Loans.
If at maturity or final payment of any Revolving Credit Loans, the total
amount of interest accrued thereon is less than the total amount of interest
which would have accrued had the rate of interest on such Revolving Credit Loans
not been limited to the Maximum Rate, the Company agrees, to the full extent
permitted by law, to pay to the Banks an amount equal to the positive
<PAGE>
57
difference, if any, derived by subtracting (a) the amount of interest which
accrued thereon pursuant to the provisions of the foregoing two paragraphs from
(b) the lesser of (i) the amount of interest which would have accrued on such
Revolving Credit Loans if the Maximum Rate had at all times been in effect, and
(ii) the amount of interest which would have accrued if the rate of interest on
such Revolving Credit Loans, not limited to the Maximum Rate, had at all times
been in effect.
11.10 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Bank shall be obligated to extend credit to
the Company in an amount in violation of any limitation or prohibition.
11.11 Entire Agreement. This Agreement and the other Loan Documents
embody the entire agreement and understanding between the Agent, the Banks and
the Company and supersede all prior agreements and understandings between such
parties relating to the subject matter hereof and thereof.
11.12 Exhibits. The exhibits attached to this Agreement are
incorporated herein and shall be considered a part of this Agreement for the
purposes stated herein, except that in the event of any conflict between any of
the provisions of such exhibits and the provisions of this Agreement, the
provisions of this Agreement shall prevail.
11.13 Titles of Sections and Subsections. All titles or headings to
sections, subsections or other divisions of this Agreement or the exhibits
hereto are only for the convenience of the parties and shall not be construed to
have any effect or meaning with respect to the other content of such sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
11.14 Number of Documents. All statements, notices, reports and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Banks.
11.15 SUBMISSION TO JURISDICTION; WAIVERS. 1) THE COMPANY HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(I) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO WHICH IT IS
A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT OF ANY
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(II) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(III) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM AND MAIL), POSTAGE PREPAID, TO IT AT ITS ADDRESS
SPECIFIED IN SUBSECTION 11.1;
<PAGE>
58
(IV) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION; AND
(V) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
2) THE COMPANY, THE BANKS AND THE AGENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.16 Interpretation. Any conflict or inconsistency between a
provision of this Agreement and the corresponding provision of any of the Loan
Documents shall be resolved in favor of this Agreement.
11.17 Counterparts. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof; each counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
THIS WRITTEN AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE OTHER INSTRUMENTS
AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH, REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed in New York, New York by their proper and duly authorized officers
as of the date first above written.
Addresses:
Delivery:
ENTERPRISE PRODUCTS OPERATING L.P.
2727 North Loop West
7th Floor
Houston, Texas 77008 By: /s/ Gary L. Miller
-------------------------------
Title: Gary L. Miller
Executive Vice President
Mail:
707 Travis Street
8th Floor
Houston, Texas 77002
THE CHASE MANHATTAN BANK,
as Agent and as a Bank
270 Park Avenue
New York, New York 10017 By: /s/ Peter Ling
-------------------------------
Title: Peter Ling
Executive Vice President
<PAGE>
ABN AMRO BANK, NV
Three Riverway
Suite 1700
Houston
By: /s/ illegible signature
-------------------------------
Title: Vice President
By: /s/ illegible signature
-------------------------------
Title: Group Vice President
THE BANK OF NOVA SCOTIA
600 Peachtree Street, N.E.
Suite 2700
Atlanta, GA. 30308
By: /s/ F.C.H. Ashby
-------------------------------
Title: F.C.H. Ashby
Senior ManagerLoan Operations
BANK ONE, TEXAS, N.A.
910 Travis Street
Houston, Texas 77002
By: /s/ illegible signature
-------------------------------
Title: Senior Vice President
BANK OF TOKYO-MITSUBISHI, LTD.
HOUSTON AGENCY
1100 Louisiana Street
Suite 2800
Houston, Texas 77002-5216
By: /s/ illegible signature
-------------------------------
Title: Vice President
CIBC INC.
2 Paces West
2727 Paces Ferry Rd.
Suite 1200
Atlanta, GA 30339
By: /s/ Robin W. Elliott
-------------------------------
Title: Authorized Signatory
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
1000 Louisiana
Suite 5360
Houston, TX 77002
By: /s/ Philippe Soustra
-------------------------------
Title: Senior Vice President
DEN NORSKE BANK ASA
200 Park Avenue
31st Floor
New York, New York 10166-0396
By: /s/ Byron L. Cooley
-------------------------------
Title: Senior Vice President
By: /s/ Morten Bjornsen
-------------------------------
Title: Senior Vice President
FIRST UNION NATIONAL BANK
1First Union Center
301 South College St.
TW11
Charlotte, NC 28288-0658
By: /s/ Robert R. Wetteroff
-------------------------------
Title: Senior Vice President
GUARANTY FEDERAL BANK FSB
1100 Northeast Loop 410
San Antonio, TX 78209
By: /s/ Jim R. Hamilton
-------------------------------
Title: Vice President
ING (U.S.) CAPITAL CORPORATION
135 East 57th Street
New York, NY 10022-2101
By: /s/ Frank Ferrara
-------------------------------
Title: Senior Associate
<PAGE>
THE LONG TERM CREDIT BANK OF JAPAN
LIMITED, NEW YORK BRANCH
165 Broadway
New York, NY 10006
By:/s/ Douglas A. Whiddon
-------------------------------
Title: Senior Vice President
MEESPIERSON CAPITAL CORP.
300 Crescent Court
Suite 1750
Dallas, TX 75201
By: /s/ Darrell W. Holley
-------------------------------
Title: Darrell W. Holley
Senior Vice President
By: /s/ Karen Louman
-------------------------------
Title: Managing Director
SOCIETE GENERALE, SOUTHWEST AGENCY
1111 Bagby
Suite 2020
Houston, TX 77002
By: /s/ Bet Hunter
-------------------------------
Title: Elizabeth W. Hunter
Director
<PAGE>
SCHEDULE I
COMMITMENTS
<TABLE>
<CAPTION>
Investment Revolving Working Capital Revolving
Bank Credit Commitment Credit Commitment
- ---- -------------------- --------------------------
<S> <C> <C>
The Chase Manhattan Bank $ 24,375,000 $ 8,125,000
The Bank of Nova Scotia $ 13,125,000 $ 4,375,000
Den Norske Bank ASA $ 13,125,000 $ 4,375,000
Bank of Tokyo-Mitsubishi, Ltd.
Houston Agency $ 13,125,000 $ 4,375,000
Bank One, Texas, N.A. $ 9,750,000 $ 3,250,000
First Union National Bank $ 9,705,000 $ 3,250,000
Guaranty Federal Bank FSB` $ 9,750,000 $ 3,250,000
MeesPierson Capital Corp. $ 9,750,000 $ 3,250,000
Societe General, SW Agency $ 9,750,000 $ 3,250,000
ABN Amro Bank, NV $ 7,500,000 $ 2,500,000
CIBC Inc. $ 7,500,000 $ 2,500,000
Credit Lyonnais (New York Branch) $ 7,500,000 $ 2,500,000
ING (U.S. Capital Corporation $ 7,500,000 $ 2,500,000
The Long Term Credit Bank of Japan,
Ltd., (New York Branch ) $ 7,500,000 $ 2,500,000
Total $150,000,000 $50,000,000
=========== ==========
</TABLE>
<PAGE>
Schedule II
-----------
Existing Letters of Credit
Enterprise Products Operating L.P.
- ---------------------------------
==============================================================================
L/C Number Amount Expiration
- ---------- ------ ----------
271050 $ 347,061.00 8/10/98
185120 $ 199,026.00 6/30/99
154720 $ 500,000.00 12/31/98
869888 (c) $4,826,602.00 8/7/98
869885 (c) $5,226,881.00 7/10/98
869884 (c) $5,185,400.00 7/7/98
869887 (c) $6,583,500.00 7/21/98
869889 $ 6,025,800.00 8/31/98
868890 $ 4,262,500.00 9/7/98
Totals $33,156,770.00
Adjusted with Cancelled $11,334,387.00
(c = cancelled)
Available $(2,894,842.86)
Adjusted $ 1,862,436.63
==============================================================================
<PAGE>
SCHEDULE 5.7
INVESTMENTS
1. Refer to the Subsidiaries listed on Schedule 5.19.
2. Other Investments
<TABLE>
<CAPTION>
Name of Investment Type of Entity Jurisdiction of Effective Ownership
Incorporation/ by Company
Formation
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Baton Rouge Fractionators LLC Limited Liability Delaware 26.5%
Company
- -----------------------------------------------------------------------------------------------------
Belvieu Environmental Fuels Partnership Texas 33-1/3%
- -----------------------------------------------------------------------------------------------------
EPIK Gas Liquids, LLC Limited Liability Texas 50%
Company
- -----------------------------------------------------------------------------------------------------
EPIK Terminalling, LP Limited Partnership Texas 50%
- -----------------------------------------------------------------------------------------------------
Mont Belvieu Associates General Partnership Texas 49%
- -----------------------------------------------------------------------------------------------------
Tri-States NGL Pipeline, LLC Limited Liability Delaware 16.66%
Company
- -----------------------------------------------------------------------------------------------------
Wilprise Pipeline LLC Limited Liability Delaware 33-1/3%
Company
- -----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE 5.10
TITLES, ETC.
Notwithstanding anything to the contrary contained in Section 5.10 of
the Credit Agreement, no representation or warranty is made by the Company as to
its or any of its Subsidiaries' title in and to the easements and rights-of-way
constituting pipelines owned by the Company or any of its Subsidiaries,
including without limitation, the respective grantors thereof; provided,
however, that the examination and investigation by the Company or such
Subsidiary, as the case may be, of title to the lands traversed by the subject
pipeline systems in connection with the acquisition of rights-of-way and similar
property interests for the subject pipeline systems were conducted in accordance
with the standards of the pipeline industry. In addition, neither the Company
nor any of its Subsidiaries have obtained consents to acquire certain of the
rights-of-way and easements for pipelines formerly owned by Enterprise Products
Company, EPC Holdings, Ltd. (formerly EPC Partners, Ltd.), Texas Gulf Partners
Pipeline Company and their respective predecessors.
<PAGE>
SCHEDULE 5.19
SUBSIDIARIES
<TABLE>
<CAPTION>
Name of Subsidiary Type of Entity Jurisdiction of Effective Ownership
Incorporation/ by Company
Formation
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
BelTex 1995 Trust Grantor Trust Texas 100%
- -----------------------------------------------------------------------------------------------------
Belvieu Fractionator Partners, Limited Partnership Texas 100%
Ltd
- -----------------------------------------------------------------------------------------------------
BFP Interests, LLC Limited Liability Texas 100%
Company
- -----------------------------------------------------------------------------------------------------
Cajun Pipeline Company, LLC Limited Liability Texas 100%
Company
- -----------------------------------------------------------------------------------------------------
Chunchula Pipeline Company, LLC Limited Liability Texas 100%
Company
- -----------------------------------------------------------------------------------------------------
DADA Interests, LLC Limited Liability Texas 100%
Company
- -----------------------------------------------------------------------------------------------------
EnterPart LLC Limited Liability Texas 100%
Company
- -----------------------------------------------------------------------------------------------------
Enterprise Products Texas Limited Partnership Texas 99%
Operating, L.P.
- -----------------------------------------------------------------------------------------------------
EntPro Limited Limited Partnership Texas 100%
- -----------------------------------------------------------------------------------------------------
EPC Partners I, LLC Limited Liability Delaware 100%
Company
- -----------------------------------------------------------------------------------------------------
EPC Partners, Ltd. Limited Partnership Texas 100%
- -----------------------------------------------------------------------------------------------------
HSC Pipeline Partnership, LP Limited Partnership Texas 99%
- -----------------------------------------------------------------------------------------------------
JMRS Holdings, Ltd Limited Partnership Texas 100%
- -----------------------------------------------------------------------------------------------------
Propylene Pipeline Partnership, Limited Partnership Texas 99%
LP
- -----------------------------------------------------------------------------------------------------
Sorrento Pipeline Company, LLC Limited Liability Texas 100%
Company
- -----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE 5.21
UTILITY
The Company and/or certain of its Subsidiaries sells to its suppliers
of electric utilities, electric power produced by its cogeneration units and by
its Mont Belvieu operations. The electric utilities are required under Texas
law to purchase such cogeneration power.
<PAGE>
SCHEDULE 7.1
OTHER DEBT
Debt of EPCO assumed by the Company and Debt of EPC Partners, Ltd.,
EntPro Limited and Belvieu Fractionator Partners, Ltd., Subsidiaries of the
Company, all of which Debt will be paid in full on the Closing Date.
<PAGE>
SCHEDULE 7.2
OTHER LIENS
Liens securing Debt of EPC Partners, Ltd., EntPro Limited and Belvieu
Fractionator Partners, Ltd., Subsidiaries of the Company, all of which Debt will
be paid in full on the Closing Date.
<PAGE>
SCHEDULE 7.8
TRANSACTIONS WITH AFFILIATES
1. The Management Agreement.
2. Master Rail Sublease Agreement dated as of June 1, 1998, between
Enterprise Products Company and Enterprise Products Operating L.P., relating to
100 Trinity 33,687 gallon pressurized tank cars.
3. Equipment Sublease Agreement dated as of June 1, 1998, between
Enterprise Products Company and Enterprise Products Operating L.P., relating to
three Centaur T-4500s Generator Sets.
4. Equipment Sublease Agreement dated as of June 1, 1998, between West
Chambers Co-Generation Partners, L.P. and Enterprise Products Operating L.P.,
relating to three Centaur 40S-4701 Generator Sets.
5. Assignment of Lease (Lessee) dated as of June 1, 1998, between
Enterprise Products Company and EPC Partners, Ltd.
6. Equipment Sublease Agreement dated as of June 1, 1998, between
Enterprise Products Company and Enterprise Products Operating L.P., relating to
certain isobutane manufacturing equipment.
7. Memorandum of Ground Sublease Agreement dated as of June 1, 1998,
between Enterprise Products Company and Enterprise Products Operating L.P.,
relating to six tracts of land located in Chambers County, Texas.
8. Ground Sublease Agreement dated as of June 1, 1998, between Enterprise
Products Company and Enterprise Products Company, covering six tracts of land
located in Chambers County, Texas.
<PAGE>
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$____
New York, New York
_______ __, 199__
FOR VALUE RECEIVED, the undersigned, ENTERPRISE PRODUCTS OPERATING L.P., a
Delaware limited partnership (the "Borrower"), hereby unconditionally promises
to pay to the order of ________________ (the "Lender") at the office of The
Chase Manhattan Bank, located at 270 Park Avenue, New York, New York 10017, in
lawful money of the United States of America and in immediately available funds,
on the Termination Date the principal amount of (a)_________________ DOLLARS
($_____), or, if less, (b) the aggregate unpaid principal amount of all
Revolving Credit Loans made by the Lender to the Borrower pursuant to subsection
2.1 of the Credit Agreement, as hereinafter defined. The Borrower further agrees
to pay interest in like money at such office on the unpaid principal amount
hereof from time to time outstanding at the rates and on the dates specified in
subsections 4.4 and 4.6 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Revolving
Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in the Credit
Agreement dated as of July 27, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto and The Chase Manhattan Bank, as agent, (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive presentment,
demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
<PAGE>
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
ENTERPRISE PRODUCTS OPERATING L.P.
By: _______________________________________
Name: _____________________________________
Title: ______________________________________
<PAGE>
<TABLE>
<CAPTION>
Schedule A
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
Amount Amount of ABR Loans
Converted to Amount of Principal Converted to Unpaid Principal Balance
Date Amount of ABR Loans ABR Loans of ABR Loans Repaid Eurodollar Loans of ABR Loans
<S> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedule B
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Interest Period Amount of Amount of Unpaid Principal
Amount of Amount and Eurodollar Principal of Eurodollar Loans Balance of
Date Eurodollar Converted to Rate with Respect Eurodollar Loans Converted to ABR Eurodollar Notation
Loans Eurodollar Loans Thereto Repaid Loans Loans Made by
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit B-1
SNELL & SMITH
A Professional Corporation
Suite 1200
1000 Louisiana
Houston, Texas 77002
July 31, 1998
The Chase Manhattan Bank, as Agent,
and the financial institutions
parties to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
We have acted as counsel to Enterprise Products Operating L.P., a
Delaware limited partnership (the "Borrower"), in connection with its execution
and delivery of the Credit Agreement dated as of July 27, 1998 (the "Credit
Agreement"), among the Borrower, The Chase Manhattan Bank, as agent for the
banks referred to below (in such capacity, the "Agent"), certain financial
institutions, as co-arrangers, and the other financial institutions from time
to time parties thereto (collectively, the "Banks"). This opinion is being
furnished to you pursuant to Section 9.1(d)(i) of the Credit Agreement. Unless
otherwise defined herein, terms defined in the Credit Agreement are used herein
as therein defined.
In expressing the opinions expressed below, we have examined executed
counterparts (or copies thereof) of each of the Loan Documents, the originals or
conformed copies of such corporate or partnership records, agreements and
instruments of the Borrower and the General Partner and the Limited Partner
(individually, a "Partner" and, collectively, the "Partners"), certificates of
public officials and of officers, managers or co-trustees, as applicable, of the
Borrower and the Partners and such other documents and records, and such matters
of law, as we have deemed appropriate as a basis for the opinions hereinafter
expressed. As to factual matters, we have relied upon, and assumed the accuracy
of, (a) statements and certifications of representatives of the Borrower or
officers, managers or co-trustees, as applicable, of the relevant Partner and of
appropriate public officials, and (b) the representations and warranties of the
Borrower contained in or made pursuant to each of the Loan Documents, and our
opinion is limited to such factual matters in existence on the date hereof. In
stating our opinion, we have assumed the genuineness of all signatures of
persons signing the Loan Documents on behalf of parties thereto (including faxed
copies of such signatures), other than the persons signing on behalf of the
Borrower, the authenticity and completeness of all documents, certificates and
records submitted to us as originals and the conformity to authentic original
instruments of all documents (including any of the Loan Documents), certificates
and records submitted to us as certified, conformed, faxed or photostatic
copies. We have assumed further that the execution and delivery of the Loan
Documents or any other instruments executed in connection with the Loan
Documents, or as
<PAGE>
part of the same transaction as the Loan Documents, by any party other than the
Borrower and the Partners have been duly authorized by such other party and are
legal, valid, binding and enforceable obligations of such other party.
This opinion is limited in all respects to the laws of the State of
Texas and federal law as in effect on the date hereof. We note that the Credit
Agreement and certain of the other Loan Documents provide that they are to be
governed by the laws of the State of New York. Accordingly, in expressing this
opinion, we have assumed, with your permission, that the laws of the State of
New York are identical in all respects to the laws of the State of Texas.
Based upon the foregoing and subject to the limitations,
qualifications, assumptions and exceptions set forth herein, we are of the
opinion that:
1. The Borrower (a) is a limited partnership duly organized and
validly existing under the laws of the State of Delaware and (b) has the
partnership power and authority to (i) own or lease the property which it owns
or operates as lessee, (ii) conduct the business in which it is currently
engaged and in which it proposes, as of the date hereof, to be engaged after the
date hereof, (iii) make, deliver and perform the Credit Agreement and each of
the other Loan Documents in accordance with the terms and provisions thereof and
(iv) borrow under the Credit Agreement. To our knowledge, the Borrower is not
required to be qualified to transact business in any other jurisdiction (other
than the States of Texas, Alabama, Louisiana and Mississippi) where the failure
to so qualify would have a Material Adverse Effect. The Borrower is duly
qualified and in good standing as a foreign limited partnership in the States of
Texas, Alabama, Louisiana and Mississippi.
2. The Borrower has taken all necessary partnership action to
authorize the borrowings by the Borrower on the terms and conditions of the
Credit Agreement and to authorize the execution, delivery and performance of
each of the Loan Documents.
3. The Credit Agreement has been duly executed and delivered on
behalf of the Borrower. The Credit Agreement constitutes the legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with its terms.
4. The execution, delivery and performance by the Borrower of the
Credit Agreement and each of the other Loan Documents to which it is a party in
accordance with the terms thereof will not (a) violate any provision of the
Partnership Agreement, (b) result in the breach of or constitute a Default under
the Credit Agreement or (c) result in, or require, the creation or imposition of
any Lien on the Borrower's properties or revenues pursuant to any of the Loan
Documents.
5. The making of the Revolving Credit Loans to the Borrower will not
violate Section 7 of the Securities Exchange Act of 1934, as amended, or any
regulation issued pursuant thereto, including without limitation, the provisions
of Regulations T, U or X of the Board of Governors of the Federal Reserve
System.
6. The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. The Borrower is not subject to regulation
under any federal or Texas statute or regulation which limits its ability to
incur indebtedness.
7. The partnership interests in the Borrower listed on Schedule I
hereto constitute all the partnership interests of record in the Borrower and
are owned of record by the Persons designated on Schedule I.
8. Except for instances covered by Section 35.51(e) and Section
35.51(f)(1), (2) or (4) of the Texas Uniform Commercial Code, as amended, the
courts of the State of Texas, and the courts of the United States
<PAGE>
of America sitting in the State of Texas, would, assuming that the applicable
issues were properly brought before such courts and such courts were to apply
existing law, enforce the provisions contained in certain of the Loan Documents
which stipulate that the validity, construction and enforceability of such Loan
Documents shall be construed and enforced in accordance with, and governed by,
the law of the State of New York.
This opinion is subject to, and qualified in all respects by, with
your permission, the following:
A. We have not been called upon to, and accordingly do not, express
any opinion as to the various state and federal laws regulating banks or the
conduct of their business that may relate to the Loan Documents and the
transactions provided for therein.
B. The enforceability of the Loan Documents to which the Borrower
is a party may be limited by (a) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), (b) the refusal of a particular court to grant equitable
remedies including, but without limiting the generality of the foregoing,
specific performance and injunctive relief, (c) the judicial imposition of an
implied covenant of good faith and (d) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws affecting the rights of
creditors generally. The enforceability of the indemnity provisions contained
in certain of the Loan Documents may be limited by considerations of public
policy or to the extent claims therefor arise under any applicable securities
laws.
C. The opinions in paragraphs 3 and 4 herein are based, in part,
upon the assumption that the Agent and each Bank will, in each and every
instance, strictly observe and comply with the terms and provisions of the usury
savings clause contained in the Credit Agreement. For purposes of determining
compliance with the usury savings clause in the Credit Agreement, the following
items may need to be characterized as interest: (i) any compensating balances,
escrows, deposits or other funds of the Borrower or others pledged or
hypothecated as security for the Revolving Credit Loans or otherwise required to
be maintained by the Borrower or others with, and subject to the control of, the
Agent or any Bank; (ii) charges for late payments; and (iii) any prepayment fee,
penalty or premium associated with any prepayment of all or any portion of the
Revolving Credit Loans if the election to make such prepayment is or may not be
within the control and discretion of the Borrower.
In addition, the opinions contained in paragraphs 3 and 4 herein are
subject to and based upon the assumption that: (i) there have been no fees,
charges, options, points, premiums or additional sums or benefits of any nature
contracted for, charged or to be paid to or for the benefit of the Agent or any
of the Banks other than those specifically provided for in the Credit Agreement
or in the Fee Letter dated July 14, 1998, among the Borrower, The Chase
Manhattan Bank and Chase Securities, Inc.; (ii) the usury savings and
"spreading" clause contained in the Credit Agreement will be held to be valid,
binding and enforceable in accordance with its terms by applicable judicial
authority; (iii) no interest will be charged, received or contracted for by the
Agent or the Banks except as expressly provided in the Credit Agreement and the
Agent and the Banks will comply with the precise terms of the usury "savings"
clause set forth in the Credit Agreement; (iv) due consideration will be given
by the Agent and the Banks (when charging interest under the Credit Agreement)
to charges, deposits, balances, fees or other items and benefits that the courts
of the State of Texas may deem to be interest or required to be deducted from
the principal amount of the Revolving Credit Loans for the purpose of
determining the maximum amount of interest that may be charged on the Revolving
Credit Loans; (v) in determining the maximum amount of interest which may be
charged to the Borrower, the computation of all interest shall be converted to a
365/366-day year; (vi) the Borrower has not been requested by the Agent or any
Bank, as a condition to the making of the Revolving Credit Loans, to guarantee,
assume, or otherwise become liable in any way in respect of, or to secure in any
regard, any indebtedness of any other Person to the Agent or any Bank or to
agree to do so; (vii) each provision of Tex. Rev. Civ. Stat. Ann., art. 5069-
1.04, as amended (the "Texas Act"), is constitutional and applicable to the
Revolving Credit Loans and the transactions evidenced by the Credit Agreement;
and (viii) the Texas Act will be enforced as written by the courts of the State
of
<PAGE>
Texas and the courts of the United States of America. However, to our knowledge
there are presently no Texas or federal cases which have rendered an opinion
that the Texas Act is unconstitutional.
D. We express no opinion as to the validity or enforceability of
any of the following types of provisions in any of the Loan Documents: (i)
provisions purporting to grant self-help remedies; (ii) provisions relating to
the waiver of various rights or remedies by the Borrower; (iii) "due on sale
clauses"; (iv) provisions relating to suretyship, delay or omission of
enforcement of rights or remedies, severability of individual provisions of the
Loan Documents from other provisions of such documents, waivers or ratification
of future acts, powers of attorney, indemnification (specifically as it relates
to the indemnification of a third party for such third party's negligence or an
indemnification which is against public policy with respect to breaches of
environmental laws), consent judgments, marshaling of assets, or sales in
inverse order of alienation; (v) provisions purporting to authorize the Banks to
collect and escrow or reserve sums of money without paying interest thereon;
(vi) provisions whereby the Banks (or any of them) or the Agent is appointed the
agent of the Borrower; (vii) provisions purporting to apply the Uniform
Commercial Code of any jurisdiction whether or not it applies; (viii) provisions
purporting to revive the Loan Documents after their termination or expiration,
other than any provision of any Loan Document with respect to which such Loan
Document expressly provides that such provision shall survive any such
termination or expiration; (ix) provisions purporting to confer jurisdiction on
any court or affecting venue; (x) provisions relating to set-offs against
deposits; (xi) provisions purporting to authorize conclusive determinations; and
(xii) provisions purporting to establish as to third parties nonculpability for
acts of any party. In addition, the opinion expressed herein that the Credit
Agreement is enforceable against the Borrower may be limited or otherwise
affected by certain other laws and judicial decisions which may impair the
enforceability of certain of the remedial, waiver and other provisions of the
Loan Documents; but such other laws and judicial decisions will not, in our
judgment, render the Loan Documents invalid as a whole or impair the practical
realization of the benefits and security afforded thereby, and, in the event of
a material breach of a material covenant in the Loan Documents, the Agent and/or
the Banks may exercise remedies that would normally be available to a secured
lender.
E. All statements in this opinion which are stated "to our
knowledge" are based solely upon reasonable inquiries of an officer of the
General Partner, but are given without any independent investigation.
This opinion is limited to matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated. We disclaim any
obligation to up-date this opinion or to advise you of any changes in any of the
opinions or other matters set forth herein.
This opinion is being furnished only to, and is solely for the benefit
of, the addressees who are parties to the Credit Agreement on the date hereof
(each of whom may rely upon this opinion as of the date hereof). This opinion
may not be used, circulated, quoted, relied upon or otherwise referred to by any
other person or entity or for any other purpose without our prior written
consent.
Very truly yours,
/s/ Snell & Smith
SNELL & SMITH, A Professional Corporation
<PAGE>
SCHEDULE I
PARTNER PARTNERSHIP INTEREST
- ------- --------------------
General Partner
Enterprise Products GP, LLC 1.0101%
Limited Partner
Enterprise Products Partners L.P. 98.9899%
<PAGE>
Exhibit B-2
ENTERPRISE PRODUCTS GP, LLC
P.O. Box 4324
Houston, Texas 77210
July 31, 1998
The Chase Manhattan Bank, as Agent,
and the financial institutions
parties to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
I am the General Counsel of Enterprise Products GP, LLC, a Delaware limited
liability company and the sole general partner of Enterprise Products Operating
L.P., a Delaware limited partnership (the "Borrower"), in connection with the
Borrower's execution and delivery of the Credit Agreement, dated as of July 27,
1998 (the "Credit Agreement"), among the Borrower, The Chase Manhattan Bank, as
agent for the Banks referred to below (in such capacity, the "Agent"), certain
financial institutions, as co-arrangers, and the other financial institutions
parties thereto (collectively, the "Banks"). This opinion is being furnished to
you pursuant to Section 9.1(d)(ii) of the Credit Agreement. Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as therein
defined.
In expressing the opinions expressed below, I have examined executed
counterparts (or copies thereof) of each of the Loan Documents, the originals or
conformed copies of such corporate or partnership records, agreements and
instruments of the Borrower and the General Partner and the Limited Partner
(individually, a "Partner" and, collectively, the "Partners"), certificates of
public officials and of officers of the Borrower and the Partners and such other
documents and records, and such matters of law, as I have deemed appropriate as
a basis for the opinions hereinafter expressed. As to factual matters, I have
relied upon, and assumed the accuracy of, (a) statements and certifications of
representatives of the Borrower or officers or managers, as applicable, of the
relevant Partner and of appropriate public officials, and (b) the
representations and warranties of the Borrower and the Partners contained in or
made pursuant to each of the Loan Documents to which they are respectively a
party, and my opinion is limited to such factual matters in existence on the
date hereof. In stating my opinion, I have assumed the genuineness of all
signatures of persons signing the Loan Documents on behalf of parties thereto
(including faxed copies of such signatures), other than the persons signing on
behalf of the Borrower, the authenticity and completeness of all documents,
certificates and records submitted to me as originals and the conformity to
authentic original instruments of all documents (including any of the Loan
Documents), certificates and records submitted to me as certified, conformed,
faxed or photostatic copies. I have assumed further that the execution and
delivery of the Loan Documents or any other instruments executed in connection
with the Loan Documents, or as part of the same transaction as the Loan
Documents, by any party other than the Borrower and the Partners have been duly
authorized by such other party and are legal, valid, binding and enforceable
obligations of such other party.
This opinion is limited in all respects to the laws of the State of Texas and
federal law as in effect on the date hereof. I note that the Credit Agreement
and certain of the other Loan Documents provide that they are to be governed by
the laws of the State of New York. Accordingly, in expressing this opinion, I
have assumed, with your permission, that the laws of the State of New York are
identical in all respects to the laws of the State of Texas.
Based upon the foregoing and subject to the limitations, qualifications,
assumptions and exceptions set forth herein, I am of the opinion that:
<PAGE>
1. The Borrower has the legal right to (i) own or lease the property
which it owns or operates as lessee, (ii) conduct the business in which it is
currently engaged and in which it proposes, as of the date hereof, to be engaged
after the date hereof, (iii) make, deliver and perform the Credit Agreement and
each of the other Loan Documents to which it is a party in accordance with the
terms and provisions thereof and (iv) borrow under the Credit Agreement. The
Borrower is in compliance with all Requirements of Law, except where the failure
to so comply could not reasonably be expected to have a Material Adverse Effect.
While I am not licensed to practice law in any jurisdiction other than the State
of Texas, and therefore am unable to express an opinion as to whether the
Borrower is required to qualify to do business as a foreign limited partnership
in any jurisdiction, I do not believe that the Borrower would be required to so
qualify in any jurisdiction other than the States of Texas, Alabama, Louisiana
and Mississippi. No other filing, recording, publishing or other act is
necessary or appropriate in connection with the existence or business of the
Borrower.
2. The Borrower has taken all necessary legal action to authorize the
borrowings by the Borrower on the terms and conditions of the Credit Agreement
and the Loan Documents and to authorize the execution, delivery and performance
of each of the Loan Documents to which it is a party in accordance with the
terms and provisions thereof.
3. No approvals or consents of any Governmental Authority or other
consents or approvals by any other Person are required in connection with (a)
the participation by the Borrower in the transactions contemplated by the Credit
Agreement and the other Loan Documents, or the execution, delivery and
performance by the Borrower of the Credit Agreement or any of the other Loan
Documents and (b) the validity and enforceability thereof and the exercise by
the Banks of their rights and remedies thereunder
4. The execution, delivery and performance by the Borrower of the
Credit Agreement and each of the other Loan Documents in accordance with the
terms thereof will not (a) violate any Requirement of Law or any Contractual
Obligation of the Borrower, (b) result in the breach of, or constitute a
default under, any indenture or loan or credit agreement or any other material
agreement, lease or instrument of which I have knowledge to which the Borrower
is a party or by which its properties may be bound, and (c) result in, or
require, the creation or imposition of any Lien on any of its properties or
revenues pursuant to any Requirement of Law or Contractual Obligation.
5. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best of our
knowledge, threatened by or against the Borrower or against any of its
properties or revenues (a) with respect to the Credit Agreement or any of the
other Loan Documents to which the Borrower is a party or any of the transactions
contemplated thereby or (b) which, if adversely determined, could reasonably be
expected to have Material Adverse Effect.
This opinion is subject to, and qualified in all respects by, with
your permission, the following:
A. I have not been called upon to, and accordingly do not, express
any opinion as to the various state and federal laws regulating banks or the
conduct of their business that may relate to the Loan Documents and the
transactions provided for therein.
B. All statements in this opinion which are stated "to my
knowledge" are based, to the extent I have deemed proper, solely upon reasonable
inquiries of an officer or representative of the Partners. Although I have not
independently verified the accuracy of the statements, I have discussed the
statements with the individuals making them, and I have no reason to believe
that any such statement is untrue or inaccurate in any material respect.
<PAGE>
This opinion is limited to matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated. I disclaim any
obligation to up-date this opinion or to advise you of any changes in any of the
opinions or other matters set forth herein.
This opinion is being furnished only to, and is solely for the benefit
of, the addressees who are parties to the Credit Agreement on the date hereof
(each of whom may rely upon this opinion as of the date hereof). This opinion
may not be used, circulated, quoted, relied upon or otherwise referred to by any
other person or entity or for any other purpose without my prior written
consent.
Very truly yours,
/s/ Michael R. Johnson
Michael R. Johnson, General Counsel
<PAGE>
Exhibit C
COMPLIANCE CERTIFICATE
The undersigned hereby certifies that he is an Executive Vice
President of ENTERPRISE PRODUCTS GP, LLC, a Delaware limited liability company
(the "General Partner") and the sole general partner of ENTERPRISE PRODUCTS
OPERATING, L.P., a Delaware limited partnership (the "Company"), and that as
such he is authorized to execute this certificate on behalf of the Company.
With reference to the Credit Agreement dated as of July 27, 1998 (the
"Agreement"), among the Company, The Chase Manhattan Bank, as agent (in such
capacity, the "Agent") for the banks named therein (collectively the "Banks"),
certain entities, as co-arrangers and the Banks, the undersigned further
certifies, represents and warrants, in such capacity on behalf of the Company,
as follows (each capitalized term used herein having the same meaning given to
it in the Agreement unless otherwise specified):
(a) The representations and warranties of the Company contained in the
Agreement and otherwise made in writing by or on behalf of the Company
pursuant to the Agreement were true and correct in all material respects
when made, and are repeated at and as of the time of delivery hereof and
are true and correct in all material respects at and as of the time of
delivery hereof.
(b) The Company has performed and complied in all material respects
with all agreements and conditions contained in the Agreement required to
be performed or complied with by it prior to or at the time of delivery
hereof.
(c) Neither the Company nor any Subsidiary has incurred any material
(individually or in the aggregate) liabilities, direct or contingent, since
the later of the date of formation or incorporation of the Company or any
such Subsidiary or March 31, 1998, other than liabilities incurred in the
normal course of business, liabilities being paid in full on the date
hereof and liabilities specifically permitted in the Agreement.
(d) Since the later of the date of formation or incorporation of the
Company or any such Subsidiary or March 31, 1998, no change has occurred,
either in any case or in the aggregate, in the condition, financial or
otherwise, of the Company which would have a Material Adverse Effect.
(e) There exists, and, after giving effect to the Loan or Loans with
respect to which this Certificate is being delivered, will exist, no
Default under the Agreement or any event or circumstance which constitutes,
or with notice or lapse of time (or both) would constitute, an event of
default under any loan or credit agreement, indenture, deed of trust,
security agreement or other agreement or instrument evidencing or
pertaining to any Debt of the Company or any Subsidiary, or under any
material agreement or instrument to which the Company or any Subsidiary is
a party or by which the Company or any Subsidiary is bound, in any respect
which could have a Material Adverse Effect.
EXECUTED AND DELIVERED this 31st day of July, 1998.
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products GP, LLC, General Partner
By /s/ Gary L. Miller
-------------------------------------
GARY L. MILLER,
Executive Vice President
<PAGE>
EXHIBIT D
FORM OF
COMMITMENT TRANSFER SUPPLEMENT
Reference is made to the Credit Agreement, dated as of July 27, 1998
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Enterprise Products Operating L.P. (the "Borrower"), the
Lenders named therein, Dennorske Bank ASA and Bank of Tokyo-Mitsubishi Ltd.,
Houston Agency, as co-arrangers and The Chase Manhattan Bank, as co-arranger and
as administrative agent for the Lenders (in such capacity, the "Agent"). Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchase and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility; collectively, the 'Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the Agent, upon
request by the Assignee, exchange the attached Notes for a new Note or Notes
payable to the Assignee and (ii) if the Assignor has retained any interest in
the Assigned Facility, requests that the Agent exchange the attached Notes for a
new Note or Notes payable to the Assignor, in each case in amounts which reflect
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Commitment Transfer Supplement; (b) confirms that
it has received a copy of
<PAGE>
the Credit Agreement, together with copies of the financial statements delivered
pursuant to subsection 5.1 thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Commitment Transfer Supplement; (c) agrees that it will, independently
and without reliance upon the Assignor, the Agent or any other Lender and based
on such document and information as it shall appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto as are delegated to
the Agent by the terms thereof, together with such powers as are incidental
thereto; and (e) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the obligations
which by the terms of the Credit Agreement are required to be performed by it as
a Lender including, if it is organized under the laws of a jurisdiction outside
the United States, its obligation pursuant to subsection 4.12(b) of the Credit
Agreement.
4. The effective date of this Commitment Transfer Supplement shall
be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Commitment Transfer
Supplement, it will be delivered to the Agent for acceptance by it and recording
by the Agent pursuant to the Credit Agreement, effective as of the Effective
Date (which shall not, unless otherwise agreed to by the Agent, be earlier than
five Business Days after the date of such acceptance and recording by the
Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned interest
(including payments of principal, interest, fees and other amounts) to the
Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the Effective Date. The
Assignor and the Assignee shall make all appropriate adjustments in payments by
the Agent for periods prior to the Effective Date or with respect to the making
of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Commitment
Transfer Supplement, have the rights and obligations of a Lender thereunder and
under the other Loan Documents and shall be bound by the provisions thereof and
Co) the Assignor shall, to the extent provided in this Commitment Transfer
Supplement, relinquish its rights and be released from its obligations under the
Credit Agreement.
7. This Commitment Transfer Supplement shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
Transfer Supplement to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
<PAGE>
Schedule 1
to Commitment Transfer Supplement
Name of Assignor:_____________________________________________________________
Name of Assignee:_____________________________________________________________
Effective Date of Assignment:_________________________________________________
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned/1/
----------------- --------------- ----------------------
$ . %
[Name of Assignee] [Name of Assignor]
By: By:
-------------------------- -----------------------------
Title: Title:
Accepted:
THE CHASE MANHATTAN BANK,
as Agent
By:
-------------------------- -----------------------------
Title:
_________________________
/1/ Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all
Lenders.
<PAGE>
EXHIBIT 21.1
Enterprise Products Partners L.P.
List of Subsidiaries of the Company
Enterprise Products Operating L.P., a Delaware limited partnership
Sorrento Pipeline Company, LLC, a Texas limited liability company
Chunchula Pipeline Company, LLC, a Texas limited liability company
Cajun Pipeline Company, LLC, a Texas limited liability company
HSC Pipeline Partnership, L.P., a Texas limited partnership
Propylene Pipeline Partnership, L.P., a Texas limited partnership
Enterprise Products Texas Operating, L.P., a Texas limited partnership
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C> <C> <C>
<PERIOD-TYPE> YEAR YEAR YEAR
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1997 DEC-31-1998
<PERIOD-START> JAN-01-1996 JAN-01-1997 JAN-01-1998
<PERIOD-END> DEC-31-1996 DEC-31-1997 DEC-31-1998
<CASH> 28,329 23,463 24,103
<SECURITIES> 0 0 0
<RECEIVABLES> 101,456 69,851 57,288
<ALLOWANCES> 0 0 0
<INVENTORY> 26,264 18,935 17,574
<CURRENT-ASSETS> 169,170 127,034 137,693
<PP&E> 683,484 716,594 720,342
<DEPRECIATION> 185,554 202,867 220,549
<TOTAL-ASSETS> 711,151 697,713 741,037
<CURRENT-LIABILITIES> 202,198 167,344 82,771
<BONDS> 240,309 215,334 90,000
0 0 0
0 0 0
<COMMON> 0 0 0
<OTHER-SE> 266,021 311,885 562,536
<TOTAL-LIABILITY-AND-EQUITY> 711,151 697,713 741,037
<SALES> 999,506 1,020,281 738,902
<TOTAL-REVENUES> 999,506 1,020,281 738,902
<CGS> 907,524 938,237 686,160
<TOTAL-COSTS> 907,524 938,237 686,160
<OTHER-EXPENSES> 23,070 21,891 18,216
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 26,310 25,717 14,696
<INCOME-PRETAX> 45,671 37,008 21,684
<INCOME-TAX> 0 0 0
<INCOME-CONTINUING> 60,813 52,163 37,253
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 27,176
<CHANGES> 0 0 0
<NET-INCOME> 60,813 52,163 10,077
<EPS-PRIMARY> 1.10 0.94 0.17
<EPS-DILUTED> 1.10 0.94 0.17
</TABLE>
