exhibit10_4.htm


    EXHIBIT 10.4


     

    
 

     

    


     

    SECOND
AMENDED AND RESTATED

    LIMITED
LIABILITY COMPANY AGREEMENT

     

     

    OF

     

     

    MONT
BELVIEU CAVERNS, LLC

    A
Delaware Limited Liability Company

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
        
           

          


        

         


      

      
         


        
          

        

      

      
         


      

    


    SECOND
AMENDED AND RESTATED

    LIMITED
LIABILITY COMPANY AGREEMENT

    OF

    MONT
BELVIEU CAVERNS, LLC

    A
Delaware Limited Liability Company

     

    TABLE
OF CONTENTS

     

     

    ARTICLE 1

    DEFINITIONS

    
      
        	
                 

              
	
                       

              	      	
                 
      

              
	 
      1.01	
                Definitions

              	
                2

              
	 
      1.02	
                Construction    

              	
                2

              
	 
      	
                       

              	
                 

              
	 
      	
                ARTICLE
      2

              	
                 

              
	 
      	
                ORGANIZATION

              	
                 

              
	 
      	
                 

              	 
      
	 
      2.01	
                Formation

              	
                2

              
	 
      2.02	
                Name

              	
                2

              
	 
      2.03	
                Registered
      Office; Registered Agent; Principal Office; Other Offices

              	
                2

              
	 
      2.04	
                Purpose

              	
                3

              
	 
      2.05	
                Term

              	
                3

              
	 
      2.06	
                No
      State-Law Partnership; Withdrawal

              	
                3

              
	 
      	
                      

              	
                 

              
	 
      	
                
                  ARTICLE 3

                

              	
                 

              
	 
      	
                MATTERS
      RELATING TO MEMBERS

              	
                 

              
	 
      	
                     

              	
                 

              
	 
      3.01	
                Members

              	
                3

              
	 
      3.02	
                Creation
      of Additional Membership Interest

              	
                3

              
	 
      3.03	
                Liability
      to Third Parties   

              	
                4

              
	 
      	
                 

              	
                 

              
	 
      	
                
                  ARTICLE 4

                

              	
                 

              
	 
      	
                CAPITAL
      CONTRIBUTIONS

              	
                 

              
	 
      
	
                  4.01

              	
                Initial
      Capital Contributions

              	
                
                  4

                

              
	 
      4.02	
                Net Measurement Loss
      Additional Capital Contributions

              	
                4

              
	
                 
      4.03

              	
                Expansion
      Project Additional Capital Contributions

              	
                4

              
	
                 
      4.04

              	
                Loans

              	
                5

              
	  4.05	Return
      of Contributions	
                6

              
	
                 
      4.06

              	
                Capital
      Accounts

              	
                6

              
	
                 

              	
                 

              	
                 

              
	
                 

              	
                ARTICLE
      5

              	
                 

              
	
                 

              	
                ALLOCATIONS
      AND DISTRIBUTIONS

              	
                 

              
	
                 

              	
                 

              	
                 

              
	 
      5.01	Allocations	
                6

              
	 
      5.02	Distributions 	
                8

              
	
                 

              	
                 

              


      

      


      


    

    
      
        
           

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      ARTICLE 6

      RIGHTS
AND OBLIGATIONS OF MEMBERS

      
        
          	
                   

                
	
                         

                	      	
                   
      

                
	 
      6.01	
                  Limitation of Members' Responsibility, Liability

                	
                  9

                
	 
      6.02	
                  Return
      of Distributions

                	
                  9

                
	 
      6.03	
                  Priority
      and Return of
      Capital       

                	
                  9

                
	 
      6.04	
                  Competition

                	
                  9

                
	 
      6.05	
                  Admission
      of Additional members

                	
                  10

                
	 
      6.06	
                  Resignation

                	
                  10

                
	 
      6.07	
                  Indemnification

                	
                  10

                
	 
      	
                   

                	
                   

                
	 
      	
                  ARTICLE
      7

                	
                   

                
	 
      	
                  MEETINGS
      OF MEMBERS

                	
                   

                
	 
      	
                   

                	
                   

                
	 
      7.01	
                  Meetings

                	
                  10

                
	 
      7.02	
                  Place
      of Meetings

                	
                  10

                
	 
      7.03	
                  
                    Notice
      of Meetings

                  

                	
                  10

                
	 
      7.04	
                  Meeting
      of All Members

                	
                  10

                
	 
      7.05	
                  Action
      by Members Without a Meeting

                	
                  10

                
	 
      7.06	
                  Waiver
      of Notice

                	
                  11

                
	 
      7.07	
                  Delegation
      to Board

                	
                  11

                
	 
      	
                     

                	
                   

                
	 
      	
                  ARTICLE
      8

                	
                   

                
	 
      	
                  
                    MANAGEMENT

                  

                	
                   

                
	 
      	
                   

                	
                   

                
	
                    8.01

                	
                  Management
      by Board of Directors 

                	
                  
                    11

                  

                
	 
      8.02	Officers	
                   13

                
	 
      8.03	
                  Duties of Officers and
      Directors

                	
                  15

                
	
                   
      8.04

                	
                  Compensation

                	
                  15

                
	
                   
      8.05

                	
                  Indemnification

                	
                  15

                
	  8.06	Liability
      of Indemnitees	
                  17

                
	
                   
      

                	
                   

                	
                   

                
	
                   

                	
                  ARTICLE
      9

                	
                   

                
	
                   

                	
                  ACCOUNTING
      METHOD, PERIOD, RECORDS AND REPORTS

                	
                   

                
	
                   

                	
                   

                	
                   

                
	 
      9.01	Accounting
      Method	
                  18

                
	 
      9.02	Accounting
      Period 	
                  18

                
	 
      9.03	Records,
      Audits and Reports 	
                  18

                
	 
      9.04	Inspection 	
                  18

                
	 	 	 
	 	
                  ARTICLE
      10

                	 
	 	
                   TAX
      MATTERS

                	 
	 
      10.01	Tax
      Returns 	
                   18

                
	 
      10.02	Tax
      Elections 	
                   18

                
	 
      10.03	Tax
      Matters Partner 	
                  19

                
	
                   

                	
                   

                


        

        
 

      

    

     


    
      
        
           

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      ARTICLE 11

      RESTRICTIONS
ON TRANSFERABILITY

      
        
          	
                   

                
	
                         

                	      	
                   
      

                
	 
      11.01	
                  Transfer Restricitions    

                	
                  19

                
	 
      	
                   

                	
                   

                
	 
      	
                  ARTICLE
      12     

                	
                   

                
	 
      	
                  BOOKS,
      RECORDS, REPORTS, AND BANK ACOUNTS

                	
                   

                
	 
      	
                   

                	
                   

                
	 
      12.01	
                  Maintenance
      of Books

                	
                  19

                
	 
      12.02	
                  Reports

                	
                  19

                
	 
      12.03	
                  Bank
      Accounts

                	
                  19

                
	 
      12.04	
                  Tax
      Statements

                	
                  20

                
	 	 	 
	 	
                   ARTICLE
      13

                	 
	 	
                   DISSOLUTION,
      WINDING-UP AND TERMINATION

                	 
	 	 	 
	 
      13.01	
                  Dissolution

                	
                  20

                
	 
      13.02	
                  Winding-Up
      and Termination

                	
                  20

                
	 	 	 
	 	
                  ARTICLE
      14

                	 
	 	
                   MERGER

                	 
	 
      	
                   

                	
                   

                
	 
      14.01	
                  Authority

                	
                  21

                
	 
      14.02	
                  Procedure
      for Merger or Consolidation

                	
                  22

                
	 
      14.03	
                  
                    Approval
      by Members of Merger or Consolidation

                  

                	
                  23

                
	 
      14.04	
                  Certificate
      of Merger or Consolidation

                	
                  23

                
	 
      14.05	
                  Effect
      of Merger or Consolidation

                	
                  23

                
	 
      	
                     

                	
                   

                
	 
      	
                  ARTICLE
      15

                	
                   

                
	 
      	
                  
                    GENERAL
      PROVISIONS

                  

                	
                   

                
	 
      	
                   

                	
                   

                
	
                    15.01

                	
                  Notices
      

                	
                  
                    24

                  

                
	 
      15.02	Entire
      Agreement; Supersedure	
                  24

                
	 
      15.03	
                  Effect of Waiver or
      Consent

                	
                  24

                
	
                   
      15.04

                	
                  Amendment
      or Restatement

                	
                  24

                
	
                   
      15.05

                	
                  Binding
      Effect

                	
                  24

                
	  15.06	Governing
      Law; Severability	
                  24

                
	
                   
      15.07

                	
                  Further
      Assurances

                	
                  25

                
	
                   
      15.08

                	
                  Offset

                	
                  25

                
	
                   
      15.09

                	
                  Counterparts

                	
                  25

                
	 
      15.10	Execution
      of Additional Instruments	
                  25

                
	 
      15.11	Severability 	
                  25

                
	 
      15.12	Headings 	
                  25

                
	
                   

                	
                   

                


        

        

 

      

    

     


    
      
        
           

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    SECOND
AMENDED AND RESTATED

    LIMITED
LIABILITY COMPANY AGREEMENT

    OF

    MONT
BELVIEU CAVERNS, LLC

    A
Delaware Limited Liability Company

     

    THIS
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”)
of MONT BELVIEU CAVERNS, LLC, a Delaware limited liability company (the “Company”),
executed on November 6, 2008, is adopted and agreed to, effective as of November
1, 2008, by Enterprise Products Operating LLC, a Texas limited liability company
(“EPOLLC”),
Enterprise Products OLPGP, Inc., a Delaware corporation (“OLPGP”),
and DEP Operating Partnership, L.P., a Delaware limited partnership (“DEP OLP”),
as the Members of the Company.

     

    RECITALS

     

    A. The
Company was originally formed as a Delaware limited partnership on
October 5, 2006 by the filing of a Certificate of Limited Partnership with
the Secretary of State of the State of Delaware.

     

    B. The
Company was converted into a Delaware limited liability company on
January 10, 2007 by the filing of a Certificate of Conversion with the
Secretary of State of the State of Delaware.

     

    C. The
Limited Liability Company Agreement of the Company was executed effective
January 10, 2007 by its Members, Enterprise Products Operating L.P. (“EPD
OLP” predecessor to EPOLLC) and OLPGP (as amended by the First Amendment dated
as of February 1, 2007, the “Existing
Agreement”).

     

    D. EPD OLP,
OLPGP, Enterprise Products Texas Operating L.P., a Delaware limited partnership
(“EP
Texas”), and the Company entered into a Contribution, Conveyance and
Assumption Agreement dated as of January 23, 2007, but effective February 1,
2007 (the “Asset
Contribution Agreement”), pursuant to which (i) EP Texas conveyed certain
Mont Belvieu East and West assets to the Company as a capital contribution, with
the Company assuming certain liabilities in connection therewith, (ii) EPD OLP
contributed certain Mont Belvieu North assets to the Company as a capital
contribution in exchange for a continuation of its respective membership
interest after giving effect to the capital contributions, and (iii) EP Texas
distributed 1.0% its membership interest to EPD OLP and 99.0% of its membership
interest to OLPGP, with the result that EPD OLP owned a membership interest with
a Sharing Ratio of 99.365% and OLPGP owned a membership interest with a Sharing
Ratio of 0.635% after giving effect to such transactions under the Asset
Contribution Agreement.

     

    E. DEP OLP
entered into that certain Contribution, Conveyance and Assumption Agreement by
and among DEP Holdings, LLC, Duncan Energy Partners L.P. (“MLP”), DEP
OLPGP, LLC and EPD OLP on the Effective Date (the “Contribution
Agreement”), pursuant to which (i) EPD OLP contributed 66% of its
membership interests in the Company (the “Interest”)
to MLP for the consideration set forth in the Contribution Agreement, and (ii)
MLP contributed

     


    
      
        
           

        

         


      

      
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    the
Interest (including 0.001% on behalf of DEP OLPGP, LLC, a Delaware limited
liability company (“DEP
OLPGP”)), to DEP OLP as a capital contribution.

     

    F. EPD OLP
and OLPGP, together with DEP OLPGP, amended and restated the Existing Agreement
in its entirety pursuant to the Amended and Restated Limited Liability Company
Agreement (the “First A&R LLC
Agreement”) executed on February 7, 2007 (the “Effective
Date”) to reflect (i) the contributions of the Interest from EPD OLP to
MLP, and from MLP (including 0.001% on behalf of DEP OLPGP) to DEP OLP, and (ii)
the admission of DEP OLP as a Member of the Company.

     

    G. The
Members deem it advisable to amend and restate the First A&R LLC Agreement
to address more specifically the effects of Expansion Cash Calls as defined in
the First A&R LLC Agreement made or contemplated to be made by the
Members.

     

    ARTICLE 1

    DEFINITIONS

     

    1.01 Definitions».  Each
capitalized term used herein shall have the meaning given such term in Attachment I.

     

    1.02 Construction».  Unless
the context requires otherwise:  (a) the gender (or lack of gender) of
all words used in this Agreement includes the masculine, feminine and neuter;
(b) references to Articles and Sections refer to Articles and Sections of this
Agreement; (c) references to Laws refer to such Laws as they may be amended from
time to time, and references to particular provisions of a Law include any
corresponding provisions of any succeeding Law; (d) references to money refer to
legal currency of the United States of America; (e) “including” means “including
without limitation” and is a term of illustration and not of limitation; (f) all
definitions set forth herein shall be deemed applicable whether the words
defined are used herein in the singular or the plural; and (g) neither this
Agreement nor any other agreement, document or instrument referred to herein or
executed and delivered in connection herewith shall be construed against any
Person as the principal draftsperson hereof or thereof.

     

    ARTICLE 2

    ORGANIZATION

     

    2.01 Formation».  The
Company was originally organized as a Delaware limited partnership by the filing
of a Certificate of Limited Partnership on October 5, 2006 with the
Secretary of State of the State of Delaware.  The Company was
converted into a limited liability company by the filing of a Certificate of
Conversion (“Organizational
Certificate”) on January 10, 2007 with the Secretary of State of the
State of Delaware under and pursuant to the Act.

     

    2.02 Name».  The
name of the Company is “Mont Belvieu Caverns, LLC” and all Company business must
be conducted in that name or such other names that comply with Law as the Board
of Directors may select.

     

    2.03 Registered
Office; Registered Agent; Principal Office; Other Offices».  The
registered office of the Company required by the Act to be maintained in the
State of Delaware

     


    
      
        
           

        

         


      

      
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    shall be
the office of the initial registered agent for service of process named in the
Organizational Certificate or such other office (which need not be a place of
business of the Company) as the Board of Directors may designate in the manner
provided by Law.  The registered agent for service of process of the
Company in the State of Delaware shall be the initial registered agent for
service of process named in the Organizational Certificate or such other Person
or Persons as the Board of Directors may designate in the manner provided by
Law.  The principal office of the Company in the United States shall
be at such a place as the Board of Directors may from time to time designate,
which need not be in the State of Delaware, and the Company shall maintain
records there and shall keep the street address of such principal office at the
registered office of the Company in the State of Delaware.  The
Company may have such other offices as the Board of Directors may
designate.

     

    2.04 Purpose».  The
purposes of the Company are the transaction of any or all lawful business for
which limited liability companies may be organized under the Act.

     

    2.05 Term».  The
period of existence of the Company commenced on January 10, 2007 and shall
end at such time as a Certificate of Cancellation is filed in accordance with
Section 13.02(c).

     

    2.06 No
State-Law Partnership; Withdrawal».  It
is the intent that the Company shall be a limited liability company formed under
the Laws of the State of Delaware and shall not be a partnership (including a
limited partnership) or joint venture, and that the Members not be a partner or
joint venturer of any other party for any purposes other than federal and state
tax purposes, and this Agreement may not be construed to suggest
otherwise.  A Member does not have the right to Withdraw from the
Company; provided,
however, that a Member
shall have the power to Withdraw at any time in violation of this
Agreement.  If a Member exercises such power in violation of this
Agreement, (a) such Member shall be liable to the Company and its Affiliates for
all monetary damages suffered by them as a result of such Withdrawal; and (b)
such Member shall not have any rights under Section 18.604 of the
Act.  In no event shall the Company have the right, through specific
performance or otherwise, to prevent a Member from Withdrawing in violation of
this Agreement.

     

    ARTICLE 3

    MATTERS
RELATING TO MEMBERS

     

    3.01 Members».

     

    (a) EPOLLC
and OLPGP have previously been admitted as Members of the Company.

     

    (b) DEP OLP
was admitted as a Member of the Company as of the date of the First A&R LLC
Agreement.

     

    3.02 Creation
of Additional Membership Interest».  The
Company may issue additional Membership Interests in the Company only in
compliance with the provisions in Article 5 of the Omnibus
Agreement.  The Company shall be bound by the terms of such Omnibus
Agreement.

     


    
      
        
           

        

         


      

      
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    3.03
Liability to Third Parties.  No
Member or beneficial owner of any Membership Interest shall be liable for the
Liabilities of the Company.

     

    ARTICLE 4

    CAPITAL
CONTRIBUTIONS

     

    4.01 Initial
Capital Contributions».

     

    (a) The
amount of money and the fair market value (as of the date of contribution) of
any property (other than money) contributed to the Company by a Member shall
constitute a “Capital
Contribution.”  Any reference in this Agreement to the Capital
Contribution of a Member shall include a Capital Contribution of its
predecessors in interest.

     

    (b) EPOLLC is
the assignee of its Membership Interests, and the Member or its predecessor in
interest has made certain Capital Contributions.

     

    (c) DEP OLP is the assignee of its
Membership Interests, and the Member or its predecessor in interest has made
certain Capital Contributions.

     

    4.02 Net
Measurement Loss Additional Capital Contributions.»  To
the extent the Board of Directors determines in its reasonable judgment that a
Net Measurement Loss exists as of the end of any month, EPOLLC shall make
additional Capital Contributions of cash in an amount equal to such Net
Measurement Loss. The Board of Directors shall provide written notice to EPOLLC
of the date such contributions are due, which date shall not be more than 10
Days following the date of such notice, and setting forth in reasonable detail
the determination of the amount of such Net Measurement Loss. The Sharing Ratios
of the Members shall not be adjusted as the result of additional Capital
Contributions, if any, in respect of any such Net Measurement Loss. In
addition to all other remedies available, including, without limitation, those
provided in the Act, a Member must pay the Company interest, at a rate
comparable to the rate the Company could obtain from third parties, on all
Capital Contributions that Member fails to make at or before the time required
from the time required until actual paid.

     

    4.03 Expansion
Project Additional Capital Contributions.

     

    (a) The
Company may require additional Capital Contributions to fund Expansion Projects
(“Expansion
Cash Calls”), including any Net Cash Deficit attributable to an Expansion
Project.  If there is a Net Cash Deficit attributable to the Expansion
Project, the Company shall invoice each Expansion Participating Member its
proportionate share of such Net Cash Deficit.  Except as otherwise
provided in this Section 4.03, any such required Capital Contributions for
Expansion Cash Calls shall be made by the Members in accordance with their
Sharing Ratios.  The costs of construction of, or acquisition of
assets relating to, and other expenditures for Expansion Projects funded
exclusively out of Capital Contributions made by the Members (the “Expansion
Costs”) and the related funding of Expansion Cash Calls shall be borne
solely by the Members as set forth below in this Section 4.03 (the “Expansion
Participating Members”), unless agreed to otherwise by all of the
Expansion Participating Members, in an amount equal to the product of (A) the
aggregate amount of the Expansion Costs multiplied by (B) a
fraction (the “Expansion Sharing
Ratio”), the numerator of which is

     


    
      
        
           

        

         


      

      
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    the
Sharing Ratio of such Expansion Participating Member and the denominator of
which is the aggregate Sharing Ratios of all of the Expansion Participating
Members.

     

    (b) The Board
of Directors shall provide written notice to the Members of the date
contributions are due, which date shall be not less than 30 nor more than 90
Days following the date of such notice, the aggregate amount of the Capital
Contribution required and each Member’s share thereof, and setting forth in
reasonable detail the proposed Expansion Project and Expansion Costs associated
therewith.  Each Member shall advise the Board of Directors in writing
within 20 Days whether it elects to participate in such Expansion
Project.  Any failure to respond within such 20 day period shall be
deemed an election not to participate in such Expansion Project.

     

    (c) If DEP
OLP elects to participate within 20 Days after notice of such Expansion Cash
Call, then (i) EPOLLC may make additional Capital Contributions of cash in an
amount up to the product of its Sharing Ratio and the amount of the applicable
Expansion Cash Call, (ii) DEP OLP shall make additional Capital Contributions of
cash equal to the excess of the Expansion Cash Call over amounts elected to be
contributed by EPOLLC under clause (i) immediately preceding, and (iii) each of
DEP OLP and EPOLLC shall be Expansion Participating Members with respect to such
Expansion Project.

     

    (d) If DEP
OLP elects not to participate in an Expansion Project within 20 Days after
notice of such Expansion Cash Call, then EPOLLC may make additional Capital
Contributions of cash in an amount equal to 100% of such Expansion Cash Call,
and EPOLLC shall be the sole Expansion Participating Member with respect to such
Expansion Project.  Notwithstanding the foregoing, DEP OLP may
subsequently elect to participate in any Expansion Project by paying to EPOLLC,
within 90 Days following the applicable Initial Commencement Date, an amount
equal to the product of (i) the sum of (A) the amount of the Expansion Cash
Call, plus (B) the
effective cost of capital to EPOLLC based on the weighted average interest rate
of EPOLLC incurred for borrowings during such period as determined by the Board
of Directors in its reasonable judgment, minus (C) any amounts
distributed to EPOLLC with respect to such Expansion Project pursuant to the
provisions of Section 5.02(b), and (ii) the Sharing Ratio of DEP
OLP.  If DEP OLP makes a payment pursuant to this Section 4.03(d),
then (x) DEP OLP shall be deemed to make a cash Capital Contribution to the
Company in an amount equal to such payment, (y) the Company shall be deemed to
make a cash distribution to EPOLLC in an amount equal to such payment, and (z)
thereafter, each of DEP OLP and EPOLLC shall be Expansion Participating Members
with respect to such Expansion Project Sharing Ratios of the Members shall not
be adjusted as the result of any additional Capital Contributions for such
Expansion Capital Call and EPOLLC shall cease to be entitled to any additional
Expansion Distributions.

     

    4.04 Loans».  If
the Company does not have sufficient cash to pay its obligations, any Member
that may agree to do so may, upon approval by the Board of Directors, advance
all or part of the needed funds for such obligation to or on behalf of the
Company.  An advance described in this Section 4.04 constitutes a
loan from the Member to the Company, shall bear interest at a rate comparable to
the rate the Company could obtain from third parties, from the date of the
advance until the date of repayment, and is not a Capital
Contribution.

     


    
      
        
           

        

         


      

      
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    4.05
Return of Contributions.  A Member is not entitled to the
return of any part of its Capital Contributions or to be paid interest in
respect of its Capital Contributions.  An unrepaid Capital
Contribution is not a liability of the Company or of any Member.  No
Member will be required to contribute or to lend any cash or property to the
Company to enable the Company to return any Member’s Capital
Contributions.

     

    4.06 Capital
Accounts».  A
capital account shall be established and maintained for each Member. Each
Member’s capital account (a) shall be increased by (i) the amount of money
contributed by that Member to the Company, (ii) the fair market value of
property contributed by that Member to the Company (net of liabilities secured
by the contributed property that the Company is considered to assume or take
subject to under section 752 of the Code), and (iii) allocations to that Member
of Company income and gain (or items of income and gain), including income and
gain exempt from tax and income and gain described in Treas. Reg.
§ 1.704-1(b)(2)(iv)(g), but excluding income and gain described in Treas.
Reg. § 1.704-1(b)(4)(i), and (b) shall be decreased by (i) the amount of money
distributed to that Member by the Company, (ii) the fair market value of
property distributed to that Member by the Company (net of liabilities secured
by the distributed property that the Member is considered to assume or take
subject to under section 752 of the Code), (iii) allocations to that Member of
expenditures of the Company described in section 705(a)(2)(B) of the Code, and
(iv) allocations of Company loss and deduction (or items of loss and deduction),
including loss and deduction described in Treas. Reg. § 1.704-1(b)(2)(iv)(g),
but excluding items described in clause (b)(iii) above and loss or deduction
described in Treas. Reg. § 1.704-1(b)(4)(i) or § 1.704-1(b)(4)(iii). The
Members’ capital accounts also shall be maintained and adjusted as permitted by
the provisions of Treas. Reg. § 1.704-1(b)(2)(iv)(f) and as required by the
other provisions of Treas. Reg. §§ 1.704-1(b)(2)(iv) and 1.704-1(b)(4),
including adjustments to reflect the allocations to the Members of depreciation,
depletion, amortization, and gain or loss as computed for book purposes rather
than the allocation of the corresponding items as computed for tax purposes, as
required by Treas. Reg. § 1.704-1(b)(2)(iv)(g). A Member that has more than one
Membership Interest shall have a single capital account that reflects all its
Membership Interests, regardless of the class of Membership Interests owned by
that Member and regardless of the time or manner in which those Membership
Interests were acquired.

     

    ARTICLE 5

    ALLOCATIONS
AND DISTRIBUTIONS

     

    5.01 Allocations».

     

    (a) Except as
otherwise set forth in Section 5.01(b), for purposes of maintaining the capital
accounts and in determining the rights of the Members among themselves, all
items of income, gain, loss, deduction, and credit of the Company shall be
allocated among the Members in accordance with their Sharing
Ratios.

     

    (b) The
following special allocations shall be made prior to making any allocations
provided for in 5.01(a) above:

     

    (i) Minimum Gain
Chargeback.  Notwithstanding any other provision hereof to the
contrary, if there is a net decrease in Minimum Gain (as generally defined
under

     


    
      
        
           

        

         


      

      
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    Treas.
Reg. § 1.704-1 or § 1.704-2) for a taxable year (or if there was a net decrease
in Minimum Gain for a prior taxable year and the Company did not have sufficient
amounts of income and gain during prior years to allocate among the Members
under this subsection 5.01(b)(i), then items of income and gain shall be
allocated to each Member in an amount equal to such Member’s share of the net
decrease in such Minimum Gain (as determined pursuant to Treas. Reg. §
1.704-2(g)(2)).  It is the intent of the Members that any allocation
pursuant to this subsection 5.01(b)(i) shall constitute a “minimum gain
chargeback” under Treas. Reg. § 1.704-2(f) and shall be interpreted consistently
therewith.

     

    (ii) Member Nonrecourse Debt Minimum Gain
Chargeback.  Notwithstanding any other provision of this
Article 5, except subsection 5.01(b)(i), if there is a net decrease in Member
Nonrecourse Debt Minimum Gain (as generally defined under Treas. Reg. § 1.704-1
or § 1.704-2), during any taxable year, any Member who has a share of the Member
Nonrecourse Debt Minimum Gain shall be allocated such amount of income and gain
for such year (and subsequent years, if necessary) determined in the manner
required by Treas. Reg. § 1.704-2(i)(4) as is necessary to meet the requirements
for a chargeback of Member Nonrecourse Debt Minimum Gain.

     

    (iii) Qualified Income
Offset.  Except as provided in subsection 5.01(b)(i) and (ii)
hereof, in the event any Member unexpectedly receives any adjustments,
allocations or distributions described in Treas. Reg. Sections
1.704-1(b)(2)(i)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6),
items of Company income and gain shall be specifically allocated to such Member
in an amount and manner sufficient to eliminate, to the extent required by the
Allocation Regulations, the deficit balance, if any, in its adjusted capital
account created by such adjustments, allocations or distributions as quickly as
possible.

     

    (iv) Gross Income
Allocations.  In the event any Member has a deficit balance in
its adjusted capital account at the end of any Company taxable period, such
Member shall be specially allocated items of Company gross income and gain in
the amount of such excess as quickly as possible; provided, that an allocation
pursuant to this subsection 5.01(b)(iv) shall be made only if and to the extent
that such Member would have a deficit balance in its adjusted capital account
after all other allocations provided in this Section 5.01 have been tentatively
made as if subsection 5.01(b)(iv) were not in the Agreement.

     

    (v) Company Nonrecourse
Deductions.  Company Nonrecourse Deductions (as determined
under Treas. Reg. Section 1.704-2(c)) for any fiscal year shall be allocated
among the Members in proportion to their Membership Interests.

     

    (vi) Member Nonrecourse
Deductions.  Any Member Nonrecourse Deductions (as defined
under Treas. Reg. Section 1.704-2(i)(2)) shall be allocated pursuant to Treas.
Reg. Section 1.704-2(i) to the Member who bears the economic risk of loss with
respect to the partner nonrecourse debt to which it is
attributable.

     

    (vii) Code Section 754
Adjustment.  To the extent an adjustment to the adjusted tax
basis of any Company asset pursuant to Section 734(b) or 743(b) of the Code is
required, pursuant to the Allocation Regulations, to be taken into account in
determining capital accounts, the amount of such adjustment to the capital
accounts shall be treated as an item of

     


    
      
        
           

        

         


      

      
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    gain (if
the adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis), and such item of gain or loss shall be specially
allocated to the Members in a manner consistent with the manner in which their
capital accounts are required to be adjusted pursuant to the Allocation
Regulations.

     

    (vii) Curative
Allocation.  The special allocations set forth in subsections
5.01(b)(i)-(vi) (the “Regulatory
Allocations”) are intended to comply with the Allocation
Regulations.  Notwithstanding any other provisions of this Section
5.01, the Regulatory Allocations shall be taken into account in allocating items
of income, gain, loss and deduction among the Members such that, to the extent
possible, the net amount of allocations of such items and the Regulatory
Allocations to each Member shall be equal to the net amount that would have been
allocated to each Member if the Regulatory Allocations had not
occurred.

     

    (ix) Measurement Gains and Measurement
Losses.  All items of Company income, gain, deduction or loss
attributable to, or arising from, Measurement Gains and Measurement Losses shall
be allocated 100% to EPOLLC;

     

    (x) Expansion
Projects.  If an Expansion Project has occurred and all of the
Members are not Expansion Participating Members, the Company shall determine (A)
for each calendar month, the Expansion Net Income, which shall be allocated
among Expansion Participating Members in accordance with their respective
Expansion Sharing Ratios and (B) all items of depreciation and cost recovery
related to Expansion Costs, which shall be specially allocated to the Expansion
Participating Members in accordance with their Expansion Sharing
Ratios.

     

    (c) For
federal income tax purposes, except as otherwise required by the Code, the
Allocation Regulations or the following sentence, each item of Company income,
gain, loss, deduction and credit shall be allocated among the Members in the
same manner as corresponding items are allocated in Section
5.01(a).  Notwithstanding any provisions contained herein to the
contrary, solely for federal income tax purposes, items of income, gain,
depreciation, gain or loss with respect to property contributed or deemed
contributed to the Company by a Member or whose value is adjusted pursuant to
the Allocation Regulations shall be allocated among the Members so as to take
into account the variation between the Company’s tax basis in such property and
its Carrying Value in the manner provided under section 704(c) of the Code and
Treas. Reg. § 1.704-3(d) (i.e. the “remedial method”).

     

    5.02 Distributions».

     

    (a) At least
once each month prior to commencement of winding up under Section 13.01, the
Board of Directors shall determine in its reasonable judgment to what extent (if
any) the Company’s cash on hand other than cash attributable to Expansion Cash
Flow exceeds its current and anticipated needs, including, without limitation,
for operating expenses, debt service, acquisitions, and a reasonable contingency
reserve. Except as otherwise set forth in Section 4.02 or this Section 5.02, if
such an excess exists, the Board of Directors shall cause the Company to
distribute to the Members in accordance with their Sharing Ratios, an amount in
cash equal to that excess.

     


    
      
        
           

        

         


      

      
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    (b) If one or
more Expansion Projects have occurred and all of the Members are not Expansion
Participating Members, the Board of Directors shall determine, in accordance
with a procedure approved by the Members for each Expansion Project, for each
calendar month, the Expansion Cash Flow.  Within thirty days after the
end of each such calendar month, the Board of Directors shall cause the Company
to distribute to each Expansion Participating Member, the “Expansion
Distributions” from the Company, meaning an amount of cash equal to (x)
such Expansion Participating Member's Expansion Sharing Ratio multiplied by (y) the
excess Expansion Cash Flow for such calendar month, minus any reasonably
anticipated current and anticipated needs with respect to the same Expansion
Project, including, without limitation, a reasonable contingency
reserve.

     

    (c) Within 45
Days following the end of any fiscal quarter, the Board of Directors shall cause
the Company to distribute to EPOLLC an amount in cash equal to the Net
Measurement Gain, if any, for such period.

     

    (d) From time
to time the Board of Directors also may cause property of the Company other than
cash to be distributed to the Members, which distribution must be made in
accordance with their Sharing Ratios and may be made subject to existing
liabilities and obligations. Immediately prior to such a distribution, the
capital accounts of the Members shall be adjusted as provided in Treas. Reg. §
1.704-1(b)(2)(iv)(f).

     

    ARTICLE 6

    RIGHTS
AND OBLIGATIONS OF MEMBERS

     

    6.01 Limitation
of Members’ Responsibility, Liability».  The
Members shall not perform any act on behalf of the Company, incur any expense,
obligation or indebtedness of any nature on behalf of the Company, or in any
manner participate in the management of the Company, except as specifically
contemplated hereunder.  No Member shall be liable under a judgment,
decree or order of a court, or in any other manner, except as agreed to by any
such Member, for the indebtedness or any other obligations or liabilities of the
Company or liable, responsible or accountable in damages to the Company or its
Members for breach of fiduciary duty as a Member, for any acts performed within
the scope of the authority conferred on it by this Agreement, or for its failure
or refusal to perform any acts except those expressly required by or pursuant to
the terms of this Agreement, or for any debt or loss in connection with the
affairs of the Company, except as required by the Delaware Act.

     

    6.02 Return
of Distributions».  In
accordance with Section 18-607 of the Delaware Act, a Member will be
obligated to return any distribution from the Company only as provided by
applicable law.

     

    6.03 Priority
and Return of Capital».  Except
as may be provided in this Agreement, no Member shall have priority over any
other Member, either as to the return of Capital Contributions or as to profits,
losses or distributions; provided that this Section
shall not apply to loans (as distinguished from Capital Contributions) that a
Member has made to the Company.

     

    6.04 Competition».  Except
as otherwise expressly provided in this Agreement, each Member may engage in or
possess an interest in any other business venture or ventures,

     


    
      
        
           

        

         


      

      
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    including
any activity that is competitive with the Company without offering any such
opportunity to the Company, and neither the Company nor the other Member shall
have any rights in or to such venture or ventures or activity or the income or
profits derived therefrom.

     

    6.05 Admission
of Additional Members».  The
Company shall not admit additional Members without the prior written consent of
all of the Members.

     

    6.06 Resignation».  Without
the prior approval of all other Members, no Member may resign from the
Company.

     

    6.07 Indemnification».  To
the extent permitted by law, the Company shall (to the extent of the assets of
the Company) indemnify, defend and hold harmless each Member and each officer,
employee and director of such Member from and against all losses, expenses,
claims or liabilities, including reasonable attorneys’ fees and disbursements,
arising out of or in connection with the indebtedness or any other obligation or
liabilities of the Company, other than losses, expenses, claims or liabilities
of such indemnified Member which result from a violation in any material respect
of any of the provisions of this Agreement or fraud, willful misconduct, gross
negligence or misappropriation of funds.  The foregoing indemnity
expressly includes an indemnity with respect to the negligence (excluding the
gross negligence) of a Member.

     

    ARTICLE 7

    MEETINGS
OF MEMBERS

     

    7.01 Meetings».  Meetings
of the Members, for any purpose or purposes, unless otherwise prescribed by law,
may be called by the Chairman of the Board of Directors or the President of the
Company or by any Member.  The chairperson at any meeting shall be
designated by the Chairman of the Board of Directors or the President of the
Company.

     

    7.02 Place
of Meetings».  Meetings
of the Members shall be held at the principal place of business of the Company
or at such other place as may be designated by the Chairman of the Board of
Directors or the President of the Company.

     

    7.03 Notice
of Meetings».  Except
as provided in Section 7.04, written notice stating the place, day and hour
of the meeting and the purpose or purposes for which the meeting is called shall
be sent not less than five days before the date of the meeting, either
personally, by facsimile or by mail, by or at the direction of the person
calling the meeting, to each Member.

     

    7.04 Meeting
of All Members».  If
all of the Members shall meet at any time and place and consent to the holding
of a meeting at such time and place, such meeting shall be valid without call or
notice, and at such meeting any lawful action may be taken.

     

    7.05 Action
by Members Without a Meeting».  Action
required or permitted to be taken at a meeting of Members may be taken without a
meeting if the action is evidenced by one or more written consents describing
the action taken, signed by all Members and delivered to the Secretary or any
Assistant Secretary of the Company for inclusion in the minutes or for filing
with the Company records.  Action taken under this Section is
effective when all Members have signed the consent, unless the consent specifies
a different effective date.

     


    
      
        
           

        

         


      

      
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    7.06
Waiver of Notice.  When any notice is required to be
given to any Member, a waiver thereof in writing signed by the Person entitled
to such notice, whether before, at or after the time stated therein, shall be
equivalent to the giving of such notice.

     

    7.07 Delegation
to Board».  Except
as may be otherwise specifically provided in this Agreement or the Delaware Act,
the Members agree that they shall act solely through the mechanisms provided
herein relating to the appointment and authority of the Board of
Directors.

     

    ARTICLE 8

    MANAGEMENT

     

    8.01 Management
by Board of Directors».

     

    (a) Generally.  Subject
to any powers reserved to the Members under this Agreement, the business and
affairs of the Company shall be fully vested in, and managed by, a Board of
Directors (the “Board”)
and subject to the discretion of the Board, officers elected pursuant to this
Article 8.  The Directors and officers shall collectively constitute
“managers” of the Company within the meaning of the Act.  Except as
otherwise provided in this Agreement, the authority and functions of the Board,
on the one hand, and of the officers, on the other hand, shall be identical to
the authority and functions of the board of directors and officers,
respectively, of a corporation organized under the General Corporation Law of
the State of Delaware.  The officers shall be vested with such powers
and duties as are set forth in this Article 8 and as are specified by the
Board.  Accordingly, except as otherwise specifically provided in this
Agreement, the business and affairs of the Company shall be managed under the
direction of the Board, and the day-to-day activities of the Company shall be
conducted on the Company’s behalf by the officers who shall be agents of the
Company.

     

    (b) Number; Qualification;
Tenure.  The number of Directors constituting the initial Board
of Directors shall be four.  The number of Directors constituting the
Board of Directors may be increased or decreased from time to time by resolution
of the Members.  Except as provided in Section 8.01(e) hereof,
Directors shall be elected by the Members holding a plurality of the Member
Interests, and each Director so elected shall hold office for the full term to
which he shall have been elected and until his successor is duly elected and
qualified, or until his earlier death, resignation or removal.  Any
Director may resign at any time upon notice to the Company.  A
Director need not be a Member of the Company or a resident of the State of
Delaware.

     

    (c) Regular
Meetings.  Regular quarterly and annual meetings of the Board
shall be held at such time and place as shall be designated from time to time by
resolution of the Board.  Notice of such regular quarterly and annual
meetings shall not be required.

     

    (d) Special
Meetings.  Special meetings of the Board of Directors may be
held at any time, whenever called by the Chairman of the Board of Directors, the
President of the Company or a majority of Directors then in office, at such
place or places within or without the State of Delaware as may be stated in the
notice of the meeting.  Notice of the time and place of a special
meeting must be given by the person or persons calling such meeting at least
twenty-four (24) hours, before the special meeting.  The attendance of
a Director at any

     


    
      
        
           

        

         


      

      
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    meeting
shall constitute a waiver of notice of such meeting, except where a Director
attends a meeting for the sole purpose of objecting to the transaction of any
business because the meeting is not lawfully called or
convened.  Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.

     

    (e) Term; Resignation; Vacancies;
Removal.  Each Director shall hold office until his successor
is appointed and qualified or until his earlier resignation or
removal.  Any Director may resign at any time upon written notice to
the Board, the Chairman of the Board, to the Chief Executive Officer or to any
other Officer.  Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective.  Vacancies and
newly created directorships resulting from any increase in the authorized number
of Directors or from any other cause shall be filled by an affirmative vote of a
majority of the remaining Directors then in office, though less than a quorum,
or by a sole remaining Director, and each Director so elected shall hold office
for the remainder of the full term in which the new directorship was created or
the vacancy occurred and until such Director’s successor is duly elected and
qualified, or until his earlier death, resignation or removal.  Any
Director may be removed, with or without cause, by a majority of the Members at
any time, and the vacancy in the Board caused by any such removal shall be
filled by a majority of the Members.

     

    (f) Quorum; Required Vote for
Action.  Except as may be otherwise specifically provided by
law or this Agreement, at all meetings of the Board of Directors a majority of
the whole Board of Directors shall constitute a quorum for the transaction of
business.  The vote of a majority of the Directors present at any
meeting of the Board of Directors at which there is a quorum shall be the act of
the Board of Directors.  If a quorum shall not be present at any
meeting of the Board of Directors, the Directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.

     

    (g) Committees.  The
Board of Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each committee to consist of one or
more of the Directors of the Company.  The Board of Directors may
designate one or more Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee.  In the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he, she or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in place of any absent or
disqualified member.  Any committee, to the extent provided in the
resolution of the Board of Directors establishing such committee, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Company, and may authorize the
seal of the Company to be affixed to all papers which may require
it.  Each committee shall keep regular minutes and report to the Board
of Directors when required.

     


    
      
        
           

        

         


      

      
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        The
designation of any such committee and the delegation thereto of authority shall
not operate to relieve the Board of Directors, or any member thereof, of any
responsibility imposed upon it or him by law, nor shall such committee function
where action of the Board of Directors is required under applicable
law.  The Board of Directors shall have the power at any time to
change the membership of any such committee and to fill vacancies in
it.  A majority of the members of any such committee shall constitute
a quorum.  Each such committee may elect a chairman and appoint such
subcommittees and assistants as it may deem necessary.  Except as
otherwise provided by the Board of Directors, meetings of any committee shall be
conducted in the same manner as the Board of Directors conducts its business
pursuant to this Agreement, as the same shall from time to time be
amended.  Any member of any such committee elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the Company will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.  Election or appointment of a member of a committee shall
not of itself create contract rights.

     

    8.02 Officers».

     

    (a) Generally.  The
officers of the Company shall be appointed by the Board of
Directors.  Unless provided otherwise by resolution of the Board of
Directors, the Officers shall have the titles, power, authority and duties
described below in this Section 8.02.

     

    (b) Titles and
Number.  The Officers of the Company shall be the Chairman of
the Board (unless the Board of Directors provides otherwise), the Chief
Executive Officer, the President, any and all Vice Presidents (including any
Vice Presidents who may be designated as Executive Vice President or Senior Vice
President), the Secretary, the Chief Financial Officer, any Treasurer and any
and all Assistant Secretaries and Assistant Treasurers and the General
Counsel.  There shall be appointed from time to time such Vice
Presidents, Secretaries, Assistant Secretaries, Treasurers and Assistant
Treasurers as the Board of Directors may desire.  Any person may hold
more than one office.

     

    (c) Appointment and Term of
Office.  The Officers shall be appointed by the Board of
Directors at such time and for such term as the Board of Directors shall
determine.  Any Officer may be removed, with or without cause, only by
the Board of Directors.  Vacancies in any office may be filled only by
the Board of Directors.

     

    (d) Chairman of the
Board.  The Chairman of the Board shall preside at all meetings
of the Board of Directors and he shall be a non-executive unless and until other
executive powers and duties are assigned to him from time to time by the Board
of Directors.

     

    (e) Chief Executive
Officer.  Subject to the limitations imposed by this Agreement,
any employment agreement, any employee plan or any determination of the Board of
Directors, the Chief Executive Officer, subject to the direction of the Board of
Directors, shall be the chief executive officer of the Company and shall be
responsible for the management and direction of the day-to-day business and
affairs of the Company, its other Officers, employees and agents, shall
supervise generally the affairs of the Company and shall have full authority to
execute all documents and take all actions that the Company may
legally take.  In
the absence of the Chairman of the Board, the Chief Executive Officer shall
preside at

     


    
      
        
           

        

         


      

      
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    all
meetings (should he be a director) of the Board of Directors.  The
Chief Executive Officer shall exercise such other powers and perform such other
duties as may be assigned to him by this Agreement or the Board of Directors,
including any duties and powers stated in any employment agreement approved by
the Board of Directors.

     

    (f) President.  Subject
to the limitations imposed by this Agreement, any employment agreement, any
employee plan or any determination of the Board of Directors, the President,
subject to the direction of the Board of Directors, shall be the chief executive
officer of the Company in the absence of a Chief Executive Officer and shall be
responsible for the management and direction of the day-to-day business and
affairs of the Company, its other Officers, employees and agents, shall
supervise generally the affairs of the Company and shall have full authority to
execute all documents and take all actions that the Company may legally
take.  The President shall preside at all meetings of the Members and,
in the absence of the Chairman of the Board and a Chief Executive Officer, the
President shall preside at all meetings (should he be a director) of the Board
of Directors.  The President shall exercise such other powers and
perform such other duties as may be assigned to him by this Agreement or the
Board of Directors, including any duties and powers stated in any employment
agreement approved by the Board of Directors.

     

    (g) Vice
Presidents.  In the absence of a Chief Executive Officer and
the President, each Vice President (including any Vice Presidents designated as
Executive Vice President or Senior Vice President) appointed by the Board of
Directors shall have all of the powers and duties conferred upon the President,
including the same power as the President to execute documents on behalf of the
Company.  Each such Vice President shall perform such other duties and
may exercise such other powers as may from time to time be assigned to him by
the Board of Directors or the President.

     

    (h) Secretary and Assistant
Secretaries.  The Secretary shall record or cause to be
recorded in books provided for that purpose the minutes of the meetings or
actions of the Board of Directors, shall see that all notices are duly given in
accordance with the provisions of this Agreement and as required by law, shall
be custodian of all records (other than financial), shall see that the books,
reports, statements, certificates and all other documents and records required
by law are properly kept and filed, and, in general, shall perform all duties
incident to the office of Secretary and such other duties as may, from time to
time, be assigned to him by this Agreement, the Board of Directors or the
President.  The Assistant Secretaries shall exercise the powers of the
Secretary during that Officer’s absence or inability or refusal to
act.

     

    (i) Chief Financial
Officer.  The Chief Financial Officer shall keep and maintain,
or cause to be kept and maintained, adequate and correct books and records of
account of the Company.  He shall receive and deposit all moneys and
other valuables belonging to the Company in the name and to the credit of the
Company and shall disburse the same and only in such manner as the Board of
Directors or the appropriate Officer of the Company may from time to time
determine.  He shall render to the Board of Directors and the Chief
Executive Officer, whenever any of them request it, an account of all his
transactions as Chief Financial Officer and of the financial condition of the
Company, and shall perform such further duties as the Board of Directors or the
Chief Executive Officer may require.  The Chief

     


    
      
        
           

        

         


      

      
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    Financial
Officer shall have the same power as the Chief Executive Officer to execute
documents on behalf of the Company.

     

    (j) Treasurer and Assistant
Treasurers.  The Treasurer shall have such duties as may be
specified by the Chief Financial Officer in the performance of his
duties.  The Assistant Treasurers shall exercise the power of the
Treasurer during that Officer’s absence or inability or refusal to
act.  Each of the Assistant Treasurers shall possess the same power as
the Treasurer to sign all certificates, contracts, obligations and other
instruments of the Company.  If no Treasurer or Assistant Treasurer is
appointed and serving or in the absence of the appointed Treasurer and Assistant
Treasurer, the Senior Vice President, or such other Officer as the Board of
Directors shall select, shall have the powers and duties conferred upon the
Treasurer.

     

    (k) General
Counsel.  The General Counsel subject to the discretion of the
Board of Directors, shall be responsible for the management and direction of the
day-to-day legal affairs of the Company.  The General Counsel shall
perform such other duties and may exercise such other powers as may from time to
time be assigned to him by the Board of Directors or the President.

     

    (l) Powers of
Attorney.  The Company may grant powers of attorney or other
authority as appropriate to establish and evidence the authority of the Officers
and other persons.

     

    (m) Delegation of
Authority.  Unless otherwise provided by resolution of the
Board of Directors, no Officer shall have the power or authority to delegate to
any person such Officer’s rights and powers as an Officer to manage the business
and affairs of the Company.

     

    (n) Officers.  The
Board of Directors shall appoint Officers of the Company to serve from the date
of such appointment until the death, resignation or removal by the Board of
Directors with or without cause of such officer.

     

    8.03 Duties
of Officers and Directors».  Except
as otherwise specifically provided in this Agreement, the duties and obligations
owed to the Company and to the Board of Directors by the Officers of the Company
and by members of the Board of Directors of the Company shall be the same as the
respective duties and obligations owed to a corporation organized under the
Delaware General Corporation Law by its officers and directors,
respectively.

     

    8.04 Compensation».  The
members of the Board of Directors who are neither Officers nor employees of the
Company shall be entitled to compensation as directors and committee members as
approved by the Board and shall be reimbursed for out-of-pocket expenses
incurred in connection with attending meetings of the Board of Directors or
committees thereof.

     

    8.05 Indemnification».

     

    (a) To the
fullest extent permitted by Law but subject to the limitations expressly
provided in this Agreement, each Indemnitee (as defined below) shall be
indemnified and held harmless by the Company from and against any and all
losses, claims, damages, liabilities (joint or several), expenses (including
reasonable legal fees and expenses),

     


    
      
        
           

        

         


      

      
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    judgments,
fines, penalties, interest, settlements and other amounts arising from any and
all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any such person may be involved, or is
threatened to be involved, as a party or otherwise, by reason of such person’s
status as (i) a present or former member of the Board of Directors or any
committee thereof, (ii) a present or former Member, (iii) a present or former
Officer, or (iv) a Person serving at the request of the Company in another
entity in a similar capacity as that referred to in the immediately preceding
clauses (i) or (iii), provided, that the Person
described in the immediately preceding clauses (i), (ii), (iii) or (iv) (“Indemnitee”)
shall not be indemnified and held harmless if there has been a final and
non-appealable judgment entered by a court of competent jurisdiction determining
that, in respect of the matter for which the Indemnitee is seeking
indemnification pursuant to this Section 8.05, the Indemnitee acted in bad
faith or engaged in fraud, willful misconduct or, in the case of a criminal
matter, acted with knowledge that the Indemnitee’s conduct was
unlawful.  Any indemnification pursuant to this Section 8.05
shall be made only out of the assets of the Company.

     

    (b) To the
fullest extent permitted by law, expenses (including reasonable legal fees and
expenses) incurred by an Indemnitee who is indemnified pursuant to
Section 8.05(a) in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Company of an undertaking by or on behalf of the Indemnitee to repay such
amount if it shall be determined that the Indemnitee is not entitled to be
indemnified as authorized in this Section 8.05.

     

    (c) The
indemnification provided by this Section 8.05 shall be in addition to any
other rights to which an Indemnitee may be entitled under any agreement, as a
matter of law or otherwise, both as to actions in the Indemnitee’s capacity as
an Indemnitee and as to actions in any other capacity, and shall continue as to
an Indemnitee who has ceased to serve in such capacity.

     

    (d) The
Company may purchase and maintain insurance, on behalf of the members of the
Board of Directors, the Officers and such other persons as the Board of
Directors shall determine, against any liability that may be asserted against or
expense that may be incurred by such person in connection with the Company’s
activities, regardless of whether the Company would have the power to indemnify
such person against such liability under the provisions of this
Agreement.

     

    (e) For
purposes of this Section 8.05, the Company shall be deemed to have
requested an Indemnitee to serve as fiduciary of an employee benefit plan
whenever the performance by the Indemnitee of such Indemnitee’s duties to the
Company also imposes duties on, or otherwise involves services by, the
Indemnitee to the plan or participants or beneficiaries of the plan; excise
taxes assessed on an Indemnitee with respect to an employee benefit plan
pursuant to applicable law shall constitute “fines” within the meaning of
Section 8.05(a); and action taken or omitted by the Indemnitee with respect
to an employee benefit plan in the performance of such Indemnitee’s duties for a
purpose reasonably believed by such Indemnitee to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is in, or not opposed to, the best interests of the Company.

     


    
      
        
           

        

         


      

      
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    (f) In no
event may an Indemnitee subject any Members of the Company to personal liability
by reason of the indemnification provisions of this Agreement.

     

    (g) An
Indemnitee shall not be denied indemnification in whole or in part under this
Section 8.05 because the Indemnitee had an interest in the transaction with
respect to which the indemnification applies if the transaction was otherwise
permitted by the terms of this Agreement.

     

    (h) The
provisions of this Section 8.05 are for the benefit of the Indemnitees,
their heirs, successors, assigns and administrators and shall not be deemed to
create any rights for the benefit of any other Persons.

     

    (i) No
amendment, modification or repeal of this Section 8.05 or any provision
hereof shall in any manner terminate, reduce or impair either the right of any
past, present or future Indemnitee to be indemnified by the Company or the
obligation of the Company to indemnify any such Indemnitee under and in
accordance with the provisions of this Section 8.05 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted, and such Person became an Indemnitee hereunder prior to
such amendment, modification or repeal.

     

    (j) THE
PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 8.05 ARE
INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF
EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF
SUCH PERSON’S NEGLIGENCE, FAULT OR OTHER CONDUCT.

     

    8.06 Liability
of Indemnitees».

     

    (a) Notwithstanding
anything to the contrary set forth in this Agreement, no Indemnitee shall be
liable for monetary damages to the Company, the Members or any other Person for
losses sustained or liabilities incurred as a result of any act or omission of
an Indemnitee unless there has been a final and non-appealable judgment entered
in a court of competent jurisdiction determining that, in respect of the matter
in question, the Indemnitee acted in bad faith or engaged in fraud, willful
misconduct or, in the case of a criminal matter, acted with knowledge that the
Indemnitee’s conduct was criminal.

     

    (b) Subject
to its obligations and duties as set forth in this Article 8, the Board of
Directors and any committee thereof may exercise any of the powers granted to it
by this Agreement and perform any of the duties imposed upon it hereunder either
directly or by or through the Company’s Officers or agents, and neither the
Board of Directors nor any committee thereof shall be responsible for any
misconduct or negligence on the part of any such Officer or agent appointed by
the Board of Directors or any committee thereof in good faith.

     

    (c) Any
amendment, modification or repeal of this Section 8.06 or any provision
hereof shall be prospective only and shall not in any way affect the limitations
on

     


    
      
        
           

        

         


      

      
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    liability
under this Section 8.06 as in effect immediately prior to such amendment,
modification or repeal with respect to claims arising from or relating to
matters occurring, in whole or in part, prior to such amendment, modification or
repeal, regardless of when such claims may be asserted.

     

     

    ARTICLE 9 

    ACCOUNTING
METHOD, PERIOD, RECORDS AND REPORTS

     

    9.01 Accounting
Method».  The
books and records of account of the Company shall be maintained in accordance
with the accrual method of accounting.

     

    9.02 Accounting
Period».  The
Company’s accounting period shall be the Fiscal Year.

     

    9.03 Records,
Audits and Reports».  At
the expense of the Company, the Board of Directors shall maintain books and
records of account of all operations and expenditures of the
Company.

     

    9.04 Inspection».  The
books and records of account of the Company shall be maintained at the principal
place of business of the Company or such other location as shall be determined
by the Board of Directors and shall be open to inspection by the Members at all
reasonable times during any business day.

     

    ARTICLE 10

    TAX
MATTERS

     

    10.01 Tax
Returns.»  The
Board shall cause to be prepared and filed all necessary federal and state
income tax returns for the Company, including making the elections described in
Section 10.02. Each Member shall furnish to the Board all pertinent information
in its possession relating to Company operations that is necessary to enable the
Company’s income tax returns to be prepared and filed.

     

    10.02 Tax
Elections».  The
Company shall make the following elections on the appropriate tax
returns:

     

    (a) to adopt
a fiscal year ending on December 31 of each year;

     

    (b) to adopt
the accrual method of accounting and to keep the Company’s books and records on
the income-tax method;

     

    (c) to adjust
the basis of Company properties pursuant to section 754 of the Code;
and

     

    (d) any other
election the Board may deem appropriate and in the best interests of the
Members.

     


    
      
        
           

        

         


      

      
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    Neither
the Company nor any Member may make an election for the Company to be excluded
from the application of the provisions of subchapter K of chapter 1 of subtitle
A of the Code or any similar provisions of applicable state law.

     

    10.03 Tax
Matters Partner».  DEP
OLP shall be the “tax matters partner” of the Company pursuant to section
6231(a)(7) of the Code. Tax matters partner shall take such action as may be
necessary to cause each Member to become a “notice partner” within the meaning
of section 6223 of the Code. The tax matters partner shall inform each Member of
all significant matters that may come to its attention in its capacity as tax
matters partner by giving notice on or before the fifth Business Day after
becoming aware of the matter and, within that time, shall forward to each Member
copies of all significant written communications it may receive in that
capacity.

     

    ARTICLE 11

    RESTRICTIONS
ON TRANSFERABILITY

     

    11.01 Transfer
Restrictions».  Except
as set forth in Article 4 of the Omnibus Agreement, no Member shall be permitted
to sell, assign, transfer or otherwise dispose of, or mortgage, hypothecate or
otherwise encumber, or permit or suffer any encumbrance of, all or any portion
of its Member Interest without the prior written consent of all other Members
(which consent may be withheld in the sole discretion of such
Members).

     

    ARTICLE 12

    BOOKS,
RECORDS, REPORTS, AND BANK ACCOUNTS

     

    12.01 Maintenance
of Books».

     

    (a) The Board
of Directors shall keep or cause to be kept at the principal office of the
Company or at such other location approved by the Board of Directors complete
and accurate books and records of the Company, supporting documentation of the
transactions with respect to the conduct of the Company’s business and minutes
of the proceedings of the Board of Directors and any other books and records
that are required to be maintained by applicable Law.

     

    (b) The books
of account of the Company shall be maintained on the basis of a fiscal year that
is the calendar year and on an accrual basis in accordance with GAAP,
consistently applied, except that the capital accounts of the Members shall be
maintained in accordance with Section 4.06.

     

    12.02 Reports».  The
Board of Directors shall cause to be prepared and delivered to each Member such
reports, forecasts, studies, budgets and other information as the Members may
reasonably request from time to time.

     

    12.03 Bank
Accounts».  Funds
of the Company shall be deposited in such banks or other depositories as shall
be designated from time to time by the Board of Directors.  All
withdrawals from any such depository shall be made only as authorized by the
Board of Directors and shall be made only by check, wire transfer, debit
memorandum or other written instruction.

     


    
      
        
           

        

         


      

      
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    12.04 Tax Statements».  The Company shall use reasonable
efforts to furnish, within 90 Days of the close of each taxable year of the
Company, estimated tax information reasonably required by the Members for
federal and state income tax reporting purposes.

     

    ARTICLE 13

    DISSOLUTION,
WINDING-UP AND TERMINATION

     

    13.01 Dissolution».

     

    (a) The
Company shall dissolve and its affairs shall be wound up on the first to occur
of the following events (each a “Dissolution
Event”):

     

    (i) the
unanimous consent of the Members in writing;

     

    (ii) the entry
of a decree of judicial dissolution of the Company under Section 18-802 of
the Act;

     

    (iii) at any
time there are no Members of the Company, unless the Company is continued in
accordance with the Act or this Agreement.

     

    (b) No other
event shall cause a dissolution of the Company.

     

    (c) Upon the
occurrence of any event that causes there to be no Members of the Company, to
the fullest extent permitted by law, the personal representative of the last
remaining Member is hereby authorized to, and shall, within 90 days after the
occurrence of the event that terminated the continued membership of such Member
in the Company, agree in writing (i) to continue the Company and (ii) to the
admission of the personal representative or its nominee or designee, as the case
may be, as a substitute Member of the Company, effective as of the occurrence of
the event that terminated the continued membership of such Member in the
Company.

     

    (d) Notwithstanding
any other provision of this Agreement, the Bankruptcy of a Member shall not
cause such Member to cease to be a member of the Company and, upon the
occurrence of such an event, the Company shall continue without
dissolution.

     

    13.02 Winding-Up
and Termination».

     

    (a) On the
occurrence of a Dissolution Event, the Board of Directors shall select one or
more Persons to act as liquidator.  The liquidator shall proceed
diligently to wind up the affairs of the Company and make final distributions as
provided herein and in the Act.  The costs of winding up shall be
borne as a Company expense.  Until final distribution, the liquidator
shall continue to operate the Company properties with all of the power and
authority of the Board of Directors.  The steps to be accomplished by
the liquidator are as follows:

     

    (i) as
promptly as possible after dissolution and again after final winding up, the
liquidator shall cause a proper accounting to be made by a recognized firm of
certified public accountants of the Company’s assets, liabilities, and
operations through the last

     


    
      
        
           

        

         


      

      
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    calendar
day of the month in which the dissolution occurs or the final winding up is
completed, as applicable;

     

    (ii) the
liquidator shall discharge from Company funds all of the debts, liabilities and
obligations of the Company or otherwise make adequate provision for payment and
discharge thereof (including the establishment of a cash escrow fund for
contingent liabilities in such amount and for such term as the liquidator may
reasonably determine); and

     

    (iii) all
remaining assets of the Company shall be distributed to the Members as
follows:

     

    (A) the
liquidator may sell any or all Company property, including to Members, and any
resulting gain or loss from each sale shall be computed and allocated to the
capital accounts of the Members;

     

    (B) with
respect to all Company property that has not been sold, the fair market value of
that property shall be determined and the capital accounts of the Members shall
be adjusted to reflect the manner in which the unrealized income, gain, loss,
and deduction inherent in property that has not been reflected in the capital
accounts previously would be allocated among the Members if there were a taxable
disposition of that property for the fair market value of that property on the
date of distribution; and

     

    (C) Company
property shall be distributed among the Members in accordance with the positive
capital account balances of the Members, as determined after taking into account
all capital account adjustments for the taxable year of the Company during which
the liquidation of the Company occurs (other than those made by reason of this
clause (iii)); and those distributions shall be made by the end of the taxable
year of the Company during which the liquidation of the Company occurs (or, if
later, 90 days after the date of the liquidation).

     

    (b) The
distribution of cash or property to a Member in accordance with the provisions
of this Section 13.02 constitutes a complete return to the Member of its
Capital Contributions and a complete distribution to the Member of its share of
all the Company’s property and constitutes a compromise to which all Members
have consented within the meaning of Section 18-502(b) of the Act.  No
Member shall be required to make any Capital Contribution to the Company to
enable the Company to make the distributions described in this
Section 13.02.

     

    (c) On
completion of such final distribution, the liquidator shall file a Certificate
of Cancellation with the Secretary of State of the State of Delaware and take
such other actions as may be necessary to terminate the existence of the
Company.

     

    ARTICLE 14

    MERGER

     

    14.01 Authority».  The
Company may merge or consolidate with one or more limited liability companies,
corporations, business trusts or associations, real estate investment trusts,
common law trusts or unincorporated businesses, including a general partnership
or limited

     


    
      
        
           

        

         


      

      
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    partnership,
formed under the laws of the State of Delaware or any other jurisdiction,
pursuant to a written agreement of merger or consolidation (“Merger Agreement”)
in accordance with this Article 14.

     

    14.02 Procedure
for Merger or Consolidation».  The
merger or consolidation of the Company pursuant to this Article 14 requires
the prior approval of a majority the Board of Directors and compliance with
Section 14.03.  Upon such approval, the Merger Agreement shall
set forth:

     

    (a) The names
and jurisdictions of formation or organization of each of the business entities
proposing to merge or consolidate;

     

    (b) The name
and jurisdiction of formation or organization of the business entity that is to
survive the proposed merger or consolidation (“Surviving
Business Entity”);

     

    (c) The terms
and conditions of the proposed merger or consolidation;

     

    (d) The
manner and basis of exchanging or converting the equity securities of each
constituent business entity for, or into, cash, property or general or limited
partnership or limited liability company interests, rights, securities or
obligations of the Surviving Business Entity; and (i) if any general or limited
partnership or limited liability company interests, rights, securities or
obligations of any constituent business entity are not to be exchanged or
converted solely for, or into, cash, property or general or limited partnership
or limited liability company interests, rights, securities or obligations of the
Surviving Business Entity, the cash, property or general or limited partnership
or limited liability company interests, rights, securities or obligations of any
general or limited partnership, limited liability company, corporation, trust or
other entity (other than the Surviving Business Entity) which the holders of
such interests, rights, securities or obligations of the constituent business
entity are to receive in exchange for, or upon conversion of, their interests,
rights, securities or obligations and (ii) in the case of securities represented
by certificates, upon the surrender of such certificates, which cash, property
or general or limited partnership or limited liability company interests,
rights, securities or obligations of the Surviving Business Entity or any
general or limited partnership, limited liability company, corporation, trust or
other entity (other than the Surviving Business Entity), or evidences thereof,
are to be delivered;

     

    (e) A
statement of any changes in the constituent documents or the adoption of new
constituent documents (the articles or certificate of incorporation, articles of
trust, declaration of trust, certificate or agreement of limited partnership or
limited liability company or other similar charter or governing document) of the
Surviving Business Entity to be effected by such merger or
consolidation;

     

    (f) The
effective time of the merger or consolidation, which may be the date of the
filing of the certificate of merger pursuant to Section 14.04 or a later
date specified in or determinable in accordance with the Merger Agreement (provided, that if the
effective time of the merger or consolidation is to be later than the date of
the filing of the certificate of merger or consolidation, the effective time
shall be fixed no later than the time of the filing of the certificate of merger
or consolidation and stated therein); and

     


    
      
        
           

        

         


      

      
        22

        
          

        

      

      
         


      

    


    (g) Such
other provisions with respect to the proposed merger or consolidation as are
deemed necessary or appropriate by the Board of Directors.

     

    14.03 Approval
by Members of Merger or Consolidation».

     

    (a) The Board
of Directors, upon its approval of the Merger Agreement, shall direct that the
Merger Agreement be submitted to a vote of the Members, whether at a meeting or
by written consent.  A copy or a summary of the Merger Agreement shall
be included in or enclosed with the notice of a meeting or the written
consent.

     

    (b) After
approval by vote or consent of the Members, and at any time prior to the filing
of the certificate of merger or consolidation pursuant to Section 14.04,
the merger or consolidation may be abandoned pursuant to provisions therefor, if
any, set forth in the Merger Agreement.

     

    14.04 Certificate
of Merger or Consolidation».  Upon
the required approval by the Board of Directors and the Members of a Merger
Agreement, a certificate of merger or consolidation shall be executed and filed
with the Secretary of State of the State of Delaware in conformity with the
requirements of the Act.

     

    14.05 Effect
of Merger or Consolidation».

     

    (a) At the
effective time of the certificate of merger or consolidation:

     

    (i) all of
the rights, privileges and powers of each of the business entities that has
merged or consolidated, and all property, real, personal and mixed, and all
debts due to any of those business entities and all other things and causes of
action belonging to each of those business entities shall be vested in the
Surviving Business Entity and after the merger or consolidation shall be the
property of the Surviving Business Entity to the extent they were property of
each constituent business entity;

     

    (ii) the title
to any real property vested by deed or otherwise in any of those constituent
business entities shall not revert and is not in any way impaired because of the
merger or consolidation;

     

    (iii) all
rights of creditors and all liens on or security interest in property of any of
those constituent business entities shall be preserved unimpaired;
and

     

    (iv) all
debts, liabilities and duties of those constituent business entities shall
attach to the Surviving Business Entity, and may be enforced against it to the
same extent as if the debts, liabilities and duties had been incurred or
contracted by it.

     

    (b) A merger
or consolidation effected pursuant to this Article 14 shall not (i) be
deemed to result in a transfer or assignment of assets or liabilities from one
entity to another having occurred or (ii) require the Company (if it is not the
Surviving Business Entity) to wind up its affairs, pay its liabilities or
distribute its assets as required under Article 13 of this Agreement or
under the applicable provisions of the Act.

     

     

    
      
        
        

      

      
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    ARTICLE 15 

    GENERAL
PROVISIONS

     

    15.01 Notices».  Except
as expressly set forth to the contrary in this Agreement, all notices, requests
or consents provided for or permitted to be given under this Agreement must be
in writing and must be delivered to the recipient in person, by courier or mail
or by facsimile or other electronic transmission and a notice, request or
consent given under this Agreement is effective on receipt by the Person to
receive it; provided,
however, that a
facsimile or other electronic transmission that is transmitted after the normal
business hours of the recipient shall be deemed effective on the next Business
Day.  All notices, requests and consents to be sent to a Member must
be sent to or made at the addresses given for that Member as that Member may
specify by notice to the other Members.  Any notice, request or
consent to the Company must be given to all of the Members.  Whenever
any notice is required to be given by applicable Law, the Organizational
Certificate or this Agreement, a written waiver thereof, signed by the Person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to the giving of such notice.  Whenever any notice
is required to be given by Law, the Organizational Certificate or this
Agreement, a written waiver thereof, signed by the Person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.

     

    15.02 Entire
Agreement; Supersedure».  This
Agreement constitutes the entire agreement of the Members and their respective
Affiliates relating to the subject matter hereof and supersedes all prior
contracts or agreements with respect to such subject matter, whether oral or
written.

     

    15.03 Effect
of Waiver or Consent».  Except
as provided in this Agreement, a waiver or consent, express or implied, to or of
any breach or default by any Person in the performance by that Person of its
obligations with respect to the Company is not a consent or waiver to or of any
other breach or default in the performance by that Person of the same or any
other obligations of that Person with respect to the Company.  Except
as provided in this Agreement, failure on the part of a Person to complain of
any act of any Person or to declare any Person in default with respect to the
Company, irrespective of how long that failure continues, does not constitute a
waiver by that Person of its rights with respect to that default until the
applicable statute-of-limitations period has run.

     

    15.04 Amendment
or Restatement».  This
Agreement may be amended or restated only by a written instrument executed by
all Members.

     

    15.05 Binding
Effect».  This
Agreement is binding on and shall inure to the benefit of the Members and their
respective heirs, legal representatives, successors and assigns.

     

    15.06 Governing
Law; Severability».  THIS
AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT
MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF
ANOTHER JURISDICTION.  In the event of a direct conflict between the
provisions of this Agreement and (a) any provision of the Organizational
Certificate, or (b) any 

     

     

    
      
        
        

      

      
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      mandatory,
non-waivable provision of the Act, such provision of the Organizational
Certificate or the Act shall control.  If any provision of the Act
provides that it may be varied or superseded in the limited liability company
agreement (or otherwise by agreement of the members or managers of a limited
liability company), such provision shall be deemed superseded and waived in its
entirety if this Agreement contains a provision addressing the same issue or
subject matter.  If any provision of this Agreement or the application
thereof to any Person or circumstance is held invalid or unenforceable to any
extent, (a) the remainder of this Agreement and the application of that
provision to other Persons or circumstances is not affected thereby and that
provision shall be enforced to the greatest extent permitted by Law, and (b) the
Members or Directors (as the case may be) shall negotiate in good faith to
replace that provision with a new provision that is valid and enforceable and
that puts the Members in substantially the same economic, business and legal
position as they would have been in if the original provision had been valid and
enforceable.

    

     

    15.07 Further
Assurances».  In
connection with this Agreement and the transactions contemplated hereby, each
Member shall execute and deliver any additional documents and instruments and
perform any additional acts that may be necessary or appropriate to effectuate
and perform the provisions of this Agreement and those
transactions.

     

    15.08 Offset».  Whenever
the Company is to pay any sum to any Member, any amounts that a Member owes the
Company may be deducted from that sum before payment.

     

    15.09 Counterparts».  This
Agreement may be executed in any number of counterparts with the same effect as
if all signing parties had signed the same document.  All counterparts
shall be construed together and constitute the same instrument.

     

    15.10 Execution
of Additional Instruments».  Each
Member hereby agrees to execute such other and further statements of interest
and holdings, designations, powers of attorney and other instruments necessary
to comply with any laws, rules or regulations.

     

    15.11 Severability».  If
any provision of this Agreement or the application thereof to any person or
circumstance shall be invalid, illegal or unenforceable to any extent, the
remainder of this Agreement and the application thereof shall not be affected
and shall be enforceable to the fullest extent permitted by law.

     

    15.12 Headings».  The
headings in this Agreement are inserted for convenience only and are in no way
intended to describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provision hereof.

     

    


     

    


     

    [Signature
Page Follows]

     


    
      
        
           

        

         


      

      
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    IN
WITNESS WHEREOF, the Members have executed this Agreement as of the date first
set forth above.

     

    MEMBERS:

    


    DEP
OPERATING PARTNERSHIP, L.P.

    


    
      	
               
      

            	
              By:DEP
      OLPGP, LLC,

            


    

    
      	
               
      

            	
              its
      general partner

            


    

    


    


    By:        
    /s/ Richard H.
Bachmann         
                                                              

      Name:  Richard
H. Bachmann

    
      	
               
      

            	
              Title:  President
      and Chief Executive Officer

            


    

    


    


    


    


    ENTERPRISE
PRODUCTS OPERATING LLC

    


    
      	
               
      

            	
              By:Enterprise
      Products OLPGP, Inc.,

            


    

    
      	
               
      

            	
              its
      sole manager

            


    

    


    


    By:            
/s/ W. Randall
Fowler              
                                                              

      Name:  W.
Randall Fowler

    
      	
               
      

            	
              Title:
      Executive Vice President and Chief Financial
  Officer

            


    

    


    ENTERPRISE
PRODUCTS OLPGP, INC.

    


    


    


    By:        
 /s/ W. Randall
Fowler             
                                                              

      Name:  W.
Randall Fowler

    
      	
               
      

            	
              Title:
      Executive Vice President and Chief Financial
  Officer

            


    

    


    


    



    
      
        
           

        

         


      

      
        26

        
          

        

      

      
         


      

    


    Attachment I

     

    Defined
Terms

     

    Act – the
Delaware Limited Liability Company Act and any successor statute, as amended
from time to time.

     

    Affiliate
– with respect to any Person, each Person Controlling, Controlled by or under
common Control with such first Person.

     

    Agreement
– this Amended and Restated Limited Liability Company Agreement of the Company,
as the same may be amended, modified, supplemented or restated from time to
time.

     

    Allocation
Regulations – means Treas. Reg. §§
1.704-1(b), 1.704-2 and 1.704-3 (including any temporary regulations) as such
regulations may be amended and in effect from time to time and any corresponding
provision of succeeding regulations.

     

    Asset
Contribution Agreement -
Recitals.

     

    Bankruptcy
or Bankrupt –
with respect to any Person, that (a) such Person (i) makes an assignment for the
benefit of creditors; (ii) files a voluntary petition in bankruptcy; (iii) is
insolvent, or has entered against such Person an order for relief in any
bankruptcy or insolvency proceeding; (iv) files a petition or answer seeking for
such Person any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any Law; (v) files an answer or
other pleading admitting or failing to contest the material allegations of a
petition filed against such Person in a proceeding of the type described in
subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of such
Person or of all or any substantial part of such Person’s properties; or (b) 120
Days have passed after the commencement of any proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any Law, if the proceeding has not been dismissed, or 90
Days have passed after the appointment without such Person’s consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of such Person’s properties, if the appointment is not
vacated or stayed, or 90 Days have passed after the date of expiration of any
such stay, if the appointment has not been vacated.

     

    Board of
Directors or Board –
Section 8.01.

     

    Business
Day – any Day other than a Saturday, a Sunday or a Day on which national
banking associations in the State of Texas are authorized or required by Law to
close.

     

    Capital
Contribution – with respect to any Member of the Company, the amount of
money and the initial Carrying Value of any property (other than money)
contributed to the Company by such Member.

     

    Carrying
Value – means (a) with respect to property contributed to the
Company, the fair market value of such property at the time of contribution
reduced (but not below zero) by all depreciation, depletion (computed as a
separate item of deduction), amortization and cost

     

    
      
        Attachment I -
1

      

      
        
        

        
          

        

      

      
        
        

      

       

      recovery
deductions charged to the Members’ capital accounts, (b) with respect to any
property whose value is adjusted pursuant to the Allocation Regulations, the
adjusted value of such property reduced (but not below zero) by all depreciation
and cost recovery deductions charged to the Partner’s capital accounts and (c)
with respect to any other Company property, the adjusted basis of such property
for federal income tax purposes, all as of the time of
determination.

    

     

    Company –
initial paragraph.

     

    Control –
shall mean the possession, directly or indirectly, of the power and authority to
direct or cause the direction of the management and policies of a Person,
whether through ownership or control of Voting Stock, by contract or
otherwise.

     

    Contribution
Agreement - Recitals.

     

    Day – a
calendar Day; provided,
however, that, if any
period of Days referred to in this Agreement shall end on a Day that is not a
Business Day, then the expiration of such period shall be automatically extended
until the end of the first succeeding Business Day.

     

    Debt
–  means, as applied to the Company:

    


    (a)           Any
indebtedness for borrowed money or debt security of any Person which the Company
has directly or indirectly created, incurred, guaranteed, assumed or otherwise
become liable for;

    


    (b)           Obligations
to make payments under leases that in accordance with GAAP are required to be
capitalized on the balance sheet of Company, as the case may be;
and

    


    (c)           Any
guarantee by the Company of any debt of another Person of the type described in
clause (a) or  (b) of this definition.

    


    Delaware General
Corporation Law – Title 8 of the Delaware Code, as amended from time to
time.

     

    DEP OLPGP
- Recitals.

     

    Director –
each member of the Board of Directors elected as provided in
Section 8.01.

     

    Dispose,
Disposing
or Disposition
means, with respect to any asset, any sale, assignment, transfer, conveyance,
gift, exchange or other disposition of such asset, whether such disposition be
voluntary, involuntary or by operation of Law.

     

    Dissolution
Event – Section 13.01(a).

     

    Effective
Date – initial paragraph.

     

    EPD OLP
–Recitals.

     

    


    
      
        Attachment I-
2

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Existing
Agreement – Recitals.

     

    Expansion Cash
Call – Section 4.03(a).

     

    Expansion Cash
Flow – the Net Cash Flow attributable to an Expansion Project (without
deducting such Expansion Cash Flow from that definition).

     

    Expansion
Costs – Section 4.03(a).

     

    Expansion
Distributions – Section 5.02(b)(ii).

     

    Expansion Net
Income – the net items of income, gain, loss, deduction, expense or
credit (taxable or non-taxable) attributable to an Expansion Project, except for
depreciation and other cost recovery deductions related to Expansion
Costs.

     

    Expansion
Participating Members – Section 4.03(a).

     

    Expansion
Project – any expansion activities with respect to the Company’s
facilities, including without limitation, development of new entries into and
the conversion of existing storage wells and the installation of new piping and
related facilities.

     

    Expansion Sharing
Ratio – Section 4.03(a).

     

    First A&R LLC
Agreement – Recitals.

     

    GAAP
–generally accepted accounting principles in the United States of America
from time to time.

     

    Indemnitee
– Section 8.05(a).

     

    Initial
Commencement Date – the date on which the Board of Directors provides
written notice to EPD OLP that any pipeline or storage portion of an Expansion
Project is placed in service.

     

    Initial Member
– EPD OLP.

     

    Law – any
applicable constitutional provision, statute, act, code (including the Code),
law, regulation, rule, ordinance, order, decree, ruling, proclamation,
resolution, judgment, decision, declaration or interpretative or advisory
opinion or letter of a governmental authority.

     

    Liability
– any liability or obligation, whether known or unknown, asserted or unasserted,
absolute or contingent, matured or unmatured, conditional or unconditional,
latent or patent, accrued or unaccrued, liquidated or unliquidated, or due or to
become due.

     

    Measurement
Gains – items of the Company’s income or gain relating to product
movements to and from the Company’s storage facility, including amounts retained
or deducted by the Company as handling losses on product transferred into
storage.

     

     

    
      
        
        

      

      
        Attachment
I - 3

        
          

        

      

      
        
        

      

    

     

    Measurement
Losses – items of the Company’s loss or deduction relating to product
movements to and from the Company’s storage facility.

     

    Member –
any Person executing this Agreement as of the date of this Agreement as a member
or hereafter admitted to the Company as a member as provided in this Agreement,
but such term does not include any Person who has ceased to be a member in the
Company.

     

    Membership
Interest – with respect to any Member, (a) that Member’s status as a
Member; (b) that Member’s share of the income, gain, loss, deduction and credits
of, and the right to receive distributions from, the Company; (c) all other
rights, benefits and privileges enjoyed by that Member (under the Act, this
Agreement, or otherwise) in its capacity as a Member; and (d) all obligations,
duties and liabilities imposed on that Member (under the Act, this Agreement or
otherwise) in its capacity as a Member, including any obligations to make
Capital Contributions.

     

    Merger
Agreement – Section 14.01.

     

    MLP -
Recitals.

     

    Net Cash Deficit
– for a period, means the net sum, if a negative number, of (without
duplication):

    


    (a)           Net
Earnings for such period, after interest and taxes but before depreciation and
amortization, non-cash write-offs, and gains and losses on the sale of Company
Assets; plus

    


    (b)           proceeds
from the sale of Company Assets during such period to the extent not included in
clause (a) of this definition; plus

    


    (c)           all
other cash receipts during such period not included in clauses (a) or (b) of
this definition from whatever source (including the proceeds of financing or
refinancing or insurance, but excluding receipt of any Capital Contributions
made in respect of any prior period); minus

    


    (d)           Capital
expenditures incurred during such period in accordance with this Agreement
(other than those capital expenditures with respect to which the Members have
agreed to make Capital Contributions); minus

    


    (e)           principal
payments made on Debt during such period; minus

    


    (f)           if
an Expansion Project has occurred, the Expansion Cash Flow for such
period.

    


    Net Cash
Flows –  for a period, means the net sum, if a positive number,
of (without duplication):

    


    (a)           Net
Earnings for such period, after interest and taxes but before depreciation and
amortization, non-cash write-offs, and gains and losses on the sale of Company
Assets; plus

    
 

    
      
        
        

      

      
        Attachment
I - 4

        
          

        

      

      
        
        

      

    

     

    (b)           proceeds
from the sale of Company Assets during such period to the extent not included in
clause (a) of this definition; plus

    


    (c)           all
other cash receipts during such period not included in clauses (a) or (b) of
this definition from whatever source (including the proceeds of financing or
refinancing or insurance, but excluding receipt of any Capital Contributions
made in respect of any prior period); minus

    


    (d)           Capital
expenditures incurred during such period in accordance with this Agreement
(other than those capital expenditures with respect to which the Members have
agreed to make Capital Contributions); minus

    


    (e)           principal
payments made on Debt during such period; minus

    


    (f)           if
an Expansion Project has occurred, the Expansion Cash Flow for such
period.

    


    Net
Earnings –  for a period, the net sum of (i) the aggregate
amount of all cash or cash equivalents (other than Capital Contributions and
loans) received by the Company during such period minus (ii) the amount
of operating expenses during such period (or if the Company, for such period,
does not have any operating expenses, expenses paid during such period which are
similar in nature to operating expenses).

     

    Net Measurement
Gain – for any applicable period, the excess, if any, of the Company’s
Measurement Gains for such period over the Company’s Measurement Losses for such
period.

     

    Net Measurement
Loss – for any applicable period, the excess, if any, of the Company’s
Measurement Losses for such period over the Company’s Measurement Gains for such
period.

     

    Officers –
any person elected as an officer of the Company as provided in
Section 8.02(a), but such term does not include any person who has ceased
to be an officer of the Company.

     

    OLPGP -
initial paragraph.

     

    Omnibus
Agreement – means the Omnibus Agreement between EPD OLP, DEP Holdings,
LLC, MLP, DEP OLPGP, LLC, DEP OLP, Enterprise Lou-Tex Propylene Pipeline L.P.,
Sabine Propylene Pipeline L.P., Acadian Gas, LLC, South Texas NGL Pipelines, LLC
and the Company, dated February 5, 2007, as amended or restated from time to
time.

     

    Organizational
Certificate – Section 2.01.

     

    Person – a
natural person, partnership (whether general or limited), limited liability
company, governmental entity, trust, estate, association, corporation, venture,
custodian, nominee or any other individual or entity in its own or any
representative capacity.

     

    Sharing
Ratio – subject in each case to adjustments as determined by the Board of
Directors in accordance with this Agreement or in connection with Dispositions
of Membership Interests, (a) in the case of a Member executing this
Agreement as of the date of this Agreement or a Person acquiring such Member’s
Membership Interest, the percentage specified for that 

     

     

     

    
      
        
        

      

      
        Attachment
I - 5

        
          

        

      

      
        
        

      

       

      Member as
its Sharing Ratio on Exhibit A, and (b) in
the case of Membership Interests issued pursuant to Section 3.02, the
Sharing Ratio established pursuant thereto; provided, however, that the total of
all Sharing Ratios shall always equal 100%.

    

     

    Surviving
Business Entity – Section 14.02(b).

     

    Voting
Stock – with respect to any Person, Equity Interests in such Person, the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of, or otherwise appoint, directors (or Persons with
management authority performing similar functions) of such Person.

     

    Withdraw,
Withdrawing
and Withdrawal
– the withdrawal, resignation or retirement of a Member from the Company as a
Member.

     

    


     


    
      
        
          Attachment I - 6

        

         


      

      
        
        

        
          

        

      

      
         


      

    


    Exhibit
A

     

    
      	
              Name
      and Address of Partner

            	
              Sharing
      Ratio

            
	
              DEP
      Operating Partnership, L.P.

              1100
      Louisiana Street, 10th
      Floor

              Houston,
      Texas  77002

               

            	
              66.000%

            
	
              Enterprise
      Products Operating LLC

              1100
      Louisiana Street, 10th
      Floor

              Houston,
      Texas  77002

               

            	
              33.365%

            
	
              Enterprise
      Products OLPGP, Inc.

              1100
      Louisiana Street, 10th
      Floor

              Houston,
      Texas  77002

               

            	
              0.635%

            


    

    


     

    


    



    
      
        
           

          Exhibit A
–1