exv10w2





Exhibit 10.2



EXECUTION COPY






CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT




BY AND AMONG




DUNCAN ENERGY PARTNERS L.P.,




DEP OLPGP, LLC




DEP OPERATING PARTNERSHIP, L.P.




ENTERPRISE GTM HOLDINGS L.P.




AND




ENTERPRISE HOLDING III, L.L.C.




DATED AS OF DECEMBER 8, 2008




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS; RECORDATION
	 	 	3	 
	1.1 Definitions
	 	 	3	 
	 
	 	 	 	 
	ARTICLE II THE OFFERING AND RELATED TRANSACTIONS
	 	 	4	 
	2.1 Contributions and Conversions of Existing Interests
	 	 	4	 
	2.2 Conversions of Existing Interests
	 	 	5	 
	2.3 Contribution by Enterprise GTM to DEP of the Enterprise Holding III Member Interests
	 	 	5	 
	2.4 DEP Cash Distribution to Enterprise GTM
	 	 	5	 
	2.5 DEP Issuance of Class B Units to Enterprise GTM
	 	 	5	 
	2.6 Conveyance and Contribution by DEP (including 0.001% on behalf of OLP GP) to OLP of the
Enterprise Holding III Member Interests
	 	 	6	 
	2.7 Amended and Restated Limited Liability Company Agreement of Enterprise Texas
	 	 	6	 
	2.8 Amended and Restated Agreement of Limited Partnership of Enterprise Intrastate
	 	 	6	 
	2.9 Amended and Restated Agreement of Limited Partnership of Enterprise GC
	 	 	6	 
	2.10 Amended and Restated Omnibus Agreement
	 	 	6	 
	 
	 	 	 	 
	ARTICLE III FURTHER ASSURANCES
	 	 	6	 
	3.1 Further Assurances
	 	 	6	 
	3.2 Other Assurances
	 	 	7	 
	 
	 	 	 	 
	ARTICLE IV MISCELLANEOUS
	 	 	7	 
	4.1 Order of Completion of Transactions
	 	 	7	 
	4.2 Headings; References; Interpretation
	 	 	7	 
	4.3 Successors and Assigns
	 	 	7	 
	4.4 No Third Party Rights
	 	 	7	 
	4.5 Counterparts
	 	 	8	 
	4.6 Governing Law
	 	 	8	 
	4.7 Assignment of Agreement
	 	 	8	 
	4.8 Amendment or Modification
	 	 	8	 
	4.9 Director and Officer Liability
	 	 	8	 
	4.10 Severability
	 	 	8	 
	4.11 Integration
	 	 	8	 
	 Exhibits
	Exhibit A – Amended and Restated Company Agreement of Enterprise Texas Pipeline, LLC
	Exhibit B – Second Amended and Restated Agreement of Limited Partnership of Enterprise
Intrastate, L.P.
	Exhibit C – Third Amended and Restated Agreement of Limited Partnership of Enterprise GC, LP







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CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT




     THIS CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT (this “Agreement”) dated as of
December 8, 2008, is made and entered into by and among Duncan Energy Partners L.P., a Delaware
limited partnership (“DEP”), DEP Operating Partnership, L.P., a Delaware limited
partnership (“OLP”), DEP OLPGP, LLC, a Delaware limited liability company (“OLP
GP”) Enterprise GTM Holdings L.P., a Delaware limited partnership (“Enterprise GTM”)
and Enterprise Holding III, L.L.C., a Delaware limited liability company (“Enterprise Holding
III”). The above-named entities are sometimes referred to in this Agreement each as a
“Party” and collectively as the “Parties.” Certain capitalized terms used are
defined in Article I hereof.



RECITALS




     WHEREAS, Enterprise GTM owns a 99.0% member interest in Enterprise Texas Pipeline, LLC
(“Enterprise Texas”), a 99.0% limited partner interest in Enterprise Intrastate, LP
(“Enterprise Intrastate”) and a 99.0% limited partner interest in Enterprise GC, LP
(“Enterprise GC”).



     WHEREAS, Enterprise Holding III owns a 1.0% member interest in Enterprise Texas, a 1.0%
general partner interest in Enterprise Intrastate and a 1.0% general partner interest in Enterprise
GC.



     WHEREAS, the DEP has entered into a standby Term Loan Agreement, dated as of April 18, 2008,
with Wachovia Bank, National Association, as Administrative Agent and Lender, and the
co-syndication agents, co-documentation agents and other lenders named therein (the “Term Loan
Agreement”), to, among other things, allow DEP to borrow up to $300 million for: (i)
distribution to Enterprise GTM in connection with the contribution of the Subject Interests (as
defined below) under this Agreement and (ii) payment of transaction and bank expenses related to
the transactions contemplated by this Agreement.



     WHEREAS, Enterprise GTM desires to contribute to Enterprise Holding III an existing 50%
membership interest in Enterprise Texas, an existing limited partnership interest in Enterprise
Intrastate and an existing limited partner interest in Enterprise GC, with such contributed
existing interests and other interests owned by Enterprise Holding III to be converted in each case
as set forth in the applicable amended and restated limited liability company agreement or limited
partnership agreements described below and attached as Exhibits to this Agreement (collectively
referred to as the “Subject Interests”).



     WHEREAS, Enterprise GTM desires to contribute to DEP, and DEP desires to acquire from
Enterprise GTM, all of the membership interests in Enterprise Holding III (the “Enterprise
Holding III Member Interests”) as consideration for receipt of (i) cash and (ii) Class B
units representing limited partner interests of DEP (the “Class B Units”) with the rights,
privileges and obligations as set forth in the DEP Amendment.



     WHEREAS, DEP desires to contribute the Enterprise Holding III Member Interest to OLP as a
capital contribution.



 









 





     WHEREAS, concurrently with the consummation of the transactions contemplated hereby (the
“Closing”), each of the following matters shall occur:



          1. Enterprise GTM will contribute the membership and limited partner interests to Enterprise
Holding III, and the current general partner, limited partner and membership interests owned by
Enterprise Holding III and Enterprise GTM in each of Enterprise GC, Enterprise Intrastate and
Enterprise Texas will be converted into new general partner, limited partner and membership
interests, including the Subject Interests.




          2. Enterprise GTM will assign and convey the Enterprise Holding III Member Interests to DEP.




          3. DEP will contribute the Enterprise Holding III Member Interests to OLP (including 0.001% on
behalf of OLP GP).




          4. DEP will consummate a registered equity offering the “Equity Offering”) for 41,529
common units representing limited partner interests in DEP (“Common Units”) for an
aggregate purchase price of $500,000.




          5. DEP will borrow $282.25 million under the Term Loan Agreement (the “Debt
Proceeds”).




          6. DEP will use the aggregate net proceeds (after discounts and commissions, if any) from the
Equity Offering (the “Offering Proceeds”) and the Debt Proceeds to (i) pay transaction and
bank expenses of approximately $2.25 million and (ii) pay $280.0 million plus the net Offering
Proceeds to Enterprise GTM as the “Cash Consideration” for the contribution of the Subject
Interests.




          7. DEP will issue an aggregate of 37,333,887 Class B Units with an aggregate value of $449.5
million ($450.0 million less the value of the net Offering Proceeds) to Enterprise GTM as partial
consideration and the “Unit Consideration” for the contribution of the Subject Interests.




          8. The limited liability company agreement of Enterprise Texas and the agreements of limited
partnership of each of Enterprise Intrastate and Enterprise GC will each be amended and restated to
the extent necessary to reflect the applicable matters set forth above and as contained in this
Agreement.




          9. The omnibus agreement between Enterprise Products Operating LLC, a Texas limited liability
company (“EPO”), OLP and each of Enterprise Texas, Enterprise Intrastate and Enterprise GC
will be amended and restated to the extent necessary to reflect the applicable matters set forth
above and as contained in this Agreement.




     NOW, THEREFORE, in consideration of their mutual undertakings and agreements hereunder, the
Parties undertake and agree as follows:



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ARTICLE I

DEFINITIONS; RECORDATION




     1.1 Definitions. Capitalized terms used herein and not defined elsewhere in this Agreement shall
have the meanings given such terms as is set forth below.



     “affiliate” means, with respect to a specified person, any other person controlling,
controlled by or under common control with that first person. As used in this definition, the term
“control” includes (i) with respect to any person having voting securities or the equivalent and
elected directors, managers or persons performing similar functions, the ownership of or power to
vote, directly or indirectly, voting securities or the equivalent representing 50% or more of the
power to vote in the election of directors, managers or persons performing similar functions,
(ii) ownership of 50% or more of the equity or equivalent interest in any person and (iii) the
ability to direct the business and affairs of any person by acting as a general partner, manager or
otherwise.



     “Agreement” has the meaning assigned to such term in the first paragraph of this
Agreement.



     “Amended and Restated Agreements” means the amended and restated limited liability
company agreement of Enterprise Texas and the amended and restated agreement of limited partnership
of Enterprise GC and Enterprise Intrastate, in each case as executed on the date hereof in
substantially the same form as attached hereto as Exhibits A, B and C.



     “Cash Consideration” has the meaning assigned to such term in the recitals.



     “Class B Units” has the meaning assigned to such term in the recitals.



     “Common Units” has the meaning assigned to such term in the recitals and the DEP
Amendment.



     “Closing” has the meaning assigned to such term in the recitals.



     “Delaware LLC Act” has the meaning assigned to such term in the recitals.



     “Delaware LP Act” has the meaning assigned to such term in the recitals.



     “DEP” has the meaning assigned to such term in the first paragraph of this Agreement.



     “DEP Amendment” means the Third Amendment to Amended and Restated Agreement of Limited Partnership of
Duncan Energy Partners L.P. dated December 8, 2008.



     “Effective Date” means December 8, 2008.



     “Enterprise GC” means Enterprise GC, L.P., a Delaware limited partnership.


     “Enterprise Holding III” has the meaning assigned to such term in the first paragraph
of this Agreement.



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     “Enterprise
Intrastate” means Enterprise Intrastate L.P., a Delaware limited
partnership.



     “Enterprise Texas” has the meaning assigned to such term in the recitals.



     “EPO” has the meaning assigned to such term in the recitals.



     “General Partner” has the meaning assigned to such term in the first paragraph of this
Agreement.



     “Enterprise GTM” has the meaning assigned to such term in the first paragraph of this
Agreement.



     “Enterprise Holding III Member Interests” has the meaning assigned to such term in the
recitals.



     “Equity Offering” has the meaning assigned to such term in the recitals.



     “Laws” means any and all laws, statutes, ordinances, rules or regulations promulgated
by a governmental authority, orders of a governmental authority, judicial decisions, decisions of
arbitrators or determinations of any governmental authority or court.



     “Offering Proceeds” has the meaning assigned to such term in the recitals.



     “OLP” has the meaning assigned to such term in the first paragraph of this Agreement.



     “OLP GP” has the meaning assigned to such term in the first paragraph of this
Agreement.



     “Party” and “Parties” have the meanings assigned to such terms in the first paragraph
of this Agreement.



     “Subject Interests” has the meaning assigned to such term in the recitals.



     “Term Loan Agreement” has the meaning assigned to such term in the recitals.



     “Units” has the meaning assigned to such term in the recitals.



     “Unit Consideration” has the meaning assigned to such term in the recitals.



ARTICLE II

THE OFFERING AND RELATED TRANSACTIONS




     2.1
Contributions and Conversions of Existing Interests. Enterprise GTM hereby grants, contributes, transfers, assigns and conveys to Enterprise
Holding III, its successors and assigns, for its and their own use forever, and Enterprise Holding
III hereby accepts the contributions of the following interests from Enterprise GTM:



     (1) a 50% membership interest in Enterprise Texas to Enterprise Holding III;



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     TO HAVE AND TO HOLD the 50% membership interest in Enterprise Texas unto Enterprise Holding
III, its successors and assigns, together with all and singular the rights and appurtenances
thereto in anywise belonging, subject, however, to the terms and conditions stated in this
Agreement, forever.



     (2) a 65% limited partner interest in Enterprise GC; and



     TO HAVE AND TO HOLD the 65% limited partner interest in Enterprise GC unto Enterprise Holding
III, its successors and assigns, together with all and singular the rights and appurtenances
thereto in anywise belonging, subject, however, to the terms and conditions stated in this
Agreement, forever.



     (2) a 50% limited partner interest in Enterprise Intrastate.



     TO HAVE AND TO HOLD the 50% limited partner interest in Enterprise Intrastate unto Enterprise
Holding III, its successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and conditions stated in
this Agreement, forever.



     2.2 Conversions of Existing Interests. Each of Enterprise Holding III and Enterprise GTM as
members and partners hereby acknowledge, approve and consent to the foregoing assignments and to
the conversion of the existing membership interests of Enterprise Texas and general and limited
partner interests in Enterprise GC and Enterprise Intrastate, effective at the Closing, into the
Subject Interests and other equity interests, in each case as set forth in the Amended and Restated
Agreements.



     2.3 Contribution by Enterprise GTM to DEP of the Enterprise Holding III Member Interests.
Enterprise GTM hereby grants, contributes, transfers, assigns and conveys to DEP, its successors
and assigns, for its and their own use forever, the Enterprise Holding III Member Interests, and
DEP hereby accepts the distribution of the Enterprise Holding III Member Interests from Enterprise GTM and the
Distribution Obligation (as set forth in Section 1.2(f) of the Purchase and Sale Agreement,
as assignee for its own account as an additional capital contribution in exchange for (i)
$280,500,000 ($280,000,000 plus the Offering Proceeds, as the Cash Consideration) and (ii)
37,333,887 Class B Units (the Unit Consideration)).



     TO HAVE AND TO HOLD the Enterprise Holding III Member Interests unto DEP, its successors and
assigns, together with all and singular the rights and appurtenances thereto in anywise belonging,
subject, however, to the terms and conditions stated in this Agreement, forever.



     2.4 DEP Cash Distribution to Enterprise GTM. The Parties acknowledge the distribution by DEP of
$280,500,000 ($280,000,000 plus the Offering Proceeds, as the Cash Consideration), and the receipt
by Enterprise GTM of such cash amount from DEP.



     2.5 DEP Issuance of Class B Units to Enterprise GTM. The Parties acknowledge the issuance by DEP
of 37,333,887 Class B Units, and the receipt by Enterprise GTM of such Class B Units from DEP.



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     2.6 Conveyance and Contribution by DEP (including 0.001% on behalf of OLP GP) to OLP of the
Enterprise Holding III Member Interests. DEP hereby grants, contributes, transfers, assigns and
conveys to OLP (including 0.001% on behalf of OLP GP), its successors and assigns, for its and
their own use forever, all of its rights, title and interest in and to the Enterprise Holding III
Member Interests and OLP hereby accepts the Enterprise Holding III Member Interests as a capital
contribution from each of DEP and OLP GP.



     TO HAVE AND TO HOLD the Enterprise Holding III Member Interests unto OLP, its successors and
assigns, together with all and singular the rights and appurtenances thereto in anywise belonging,
subject, however, to the terms and conditions stated in this Agreement, forever.



     2.7 Amended and Restated Limited Liability Company Agreement of Enterprise Texas. Enterprise GTM,
OLP and Enterprise Holding III shall enter into an Amended and Restated Limited Liability Company
Agreement of Enterprise Texas in the form set forth as Exhibit A hereto to (i) admit OLP as
a member of Enterprise Texas and (ii) reflect the assignment by Enterprise GTM of the Class A
membership interests.



     2.8 Amended and Restated Agreement of Limited Partnership of Enterprise Intrastate. Enterprise
GTM, OLP and Enterprise Holding III shall enter into a Second Amended and Restated Agreement of
Limited Partnership of Enterprise Intrastate in the form set forth as Exhibit B hereto to
(i) admit OLP as a limited partner of Enterprise Intrastate, and (ii) reflect the assignment by
Enterprise GTM of the limited partner interests of Enterprise Intrastate to Enterprise Holding III
and the conversion of such limited partner interest into the general partner interest .



     2.9 Amended and Restated Agreement of Limited Partnership of Enterprise GC. Enterprise GTM, OLP
and Enterprise Holding III shall enter into a Third Amended and Restated Agreement of Limited
Partnership of Enterprise GC in the form set forth as Exhibit C hereto to (i) admit OLP as
a limited partner of Enterprise GC, and (ii) reflect the assignment by
Enterprise GTM of the limited partner interest of Enterprise GC to Enterprise Holding III and
the conversion of such limited partner interests into the general partner interest.



     2.10 Amended and Restated Omnibus Agreement. EPO, OLP and each of Enterprise Texas, Enterprise
Intrastate and Enterprise GC shall enter into an Amended and Restated Omnibus Agreement, to add
provisions regarding (i) guarantees by EPO of the obligations of Enterprise Holding III with
respect to mandatory capital contributions to Enterprise Texas, and (ii) additional indemnity
obligations of EPO to DEP.



ARTICLE III

FURTHER ASSURANCES




     3.1 Further Assurances. From time to time after the date hereof, and without any further
consideration, the Parties agree to execute, acknowledge and deliver all such additional deeds,
assignments, bills of sale, conveyances, instruments, notices, releases, acquittances and other
documents, and will do all such other acts and things, all in accordance with applicable Law, as
may be necessary or appropriate (a) more fully to assure that the applicable Parties own



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all of the
properties, rights, titles, interests, estates, remedies, powers and privileges granted by this
Agreement, or which are intended to be so granted, (b) more fully and effectively to vest in the
applicable Parties and their respective successors and assigns beneficial and record title to the
interests contributed and assigned by this Agreement or intended so to be and (c) to more fully and
effectively carry out the purposes and intent of this Agreement.



     3.2 Other Assurances. From time to time after the date hereof, and without any further
consideration, each of the Parties shall execute, acknowledge and deliver all such additional
instruments, notices and other documents, and will do all such other acts and things, all in
accordance with applicable Law, as may be necessary or appropriate to more fully and effectively
carry out the purposes and intent of this Agreement. It is the express intent of the Parties that
DEP or its subsidiaries own the Subject Interests that are identified in this Agreement.



ARTICLE IV

MISCELLANEOUS




     4.1 Order of Completion of Transactions. The transactions provided for in Article II of this
Agreement shall be completed on the Effective Date in the order set forth therein.



     4.2 Headings; References; Interpretation. All Article and Section headings in this Agreement are
for convenience only and shall not be deemed to control or affect the meaning or construction of
any of the provisions hereof. The words “hereof,” “herein” and “hereunder” and words of similar
import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. All references herein to Articles and Sections shall, unless the context requires
a different construction, be deemed to be references to the Articles and Sections of this
Agreement, respectively. All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other genders, and the singular shall
include the plural and vice versa. The use herein of the word “including” following any general
statement, term or matter shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to similar items or matters,
whether or not non-limiting language (such as “without limitation,” “but not limited to,” or words
of similar import) is used with reference thereto, but rather shall be deemed to refer to all other
items or matters that could reasonably fall within the broadest possible scope of such general
statement, term or matter.



     4.3 Successors and Assigns. The Agreement shall be binding upon and inure to the benefit of the
Parties signatory hereto and their respective successors and assigns.



     4.4 No Third Party Rights. Except as provided herein, nothing in this Agreement is intended to or
shall confer upon any person other than the Parties, and their respective successors and permitted
assigns, any rights, benefits, or remedies of any nature whatsoever under or by reason of this
Agreement and no person is or is intended to be a third party beneficiary of any of the provisions
of this Agreement.



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     4.5 Counterparts. This Agreement may be executed in any number of counterparts, all of which
together shall constitute one agreement binding on the parties hereto.



     4.6 Governing Law. This Agreement shall be governed by, and construed in accordance with, the
Laws of the State of Texas applicable to contracts made and to be performed wholly within such
state without giving effect to conflict of law principles thereof, except to the extent that it is
mandatory that the Law of some other jurisdiction, wherein the interests are located, shall apply.



     4.7 Assignment of Agreement. Neither this Agreement nor any of the rights, interests, or
obligations hereunder may be assigned by any Party without the prior written consent of each of the
Parties.



     4.8 Amendment or Modification. This Agreement may be amended or modified from time to time only
by the written agreement of all the Parties hereto and affected thereby.



     4.9 Director and Officer Liability. Except to the extent that they are a party hereto, the
directors, managers, officers, partners and securityholders of the Parties and their respective
affiliates shall not have any personal liability or obligation arising under this Agreement
(including any claims that another party may assert).



     4.10 Severability. If any term or other provision of this Agreement is invalid, illegal, or
incapable of being enforced under applicable Law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated herein are not affected in any manner
adverse to any Party. Upon such determination that any term or other provision of this Agreement
is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the Parties as closely as possible in
a mutually acceptable manner in order that the transactions contemplated herein are consummated as
originally contemplated to the fullest extent possible.



     4.11 Integration. This Agreement and the instruments referenced herein supersede any and all
previous understandings or agreements among the Parties, whether oral or written, with respect to
their subject matter. This Agreement and such instruments contain the entire understanding of the
Parties with respect to the subject matter hereof and thereof. No understanding, representation,
promise or agreement, whether oral or written, is intended to be or shall be included in or form
part of this Agreement or any such instrument unless it is contained in a written amendment hereto
or thereto and executed by the Parties hereto or thereto after the date of this Agreement or such
instrument.



[The Remainder of this Page is Intentionally Blank]




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     IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date
first above written.



	 	 	 	 	 
	 	DEP HOLDINGS, LLC

 	 
	 	By:  	/s/ Richard H. Bachmann 	 
	 	 	Richard H. Bachmann 	 
	 	 	President and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	DUNCAN ENERGY PARTNERS L.P.



By: DEP HOLDINGS, LLC, its General Partner

 	 
	 	By:  	/s/ Richard H. Bachmann 	 
	 	 	Richard H. Bachmann 	 
	 	 	President and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	DEP OPERATING PARTNERSHIP, L.P.



By: DEP OLPGP, LLC, its General Partner

 	 
	 	By:  	/s/ Richard H. Bachmann 	 
	 	 	Richard H. Bachmann 	 
	 	 	President and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	DEP OLPGP, LLC

 	 
	 	By:  	/s/ Richard H. Bachmann 	 
	 	 	Richard H. Bachmann 	 
	 	 	President and Chief Executive Officer 	 
	 



Signature Page to Contribution, Conveyance and Assumption Agreement





 









 








	 	 	 	 	 
	 	ENTERPRISE GTM HOLDINGS L.P.



By: Enterprise Products Operating LLC, its General Partner

 	 
	 	By:  	/s/ Michael A. Creel


 	 
	 	 	Michael A. Creel 	 
	 	 	President and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	ENTERPRISE HOLDING III, L.L.C.

 	 
	 	By:  	/s/ Michael A. Creel 	 
	 	 	Michael A. Creel 	 
	 	 	President and Chief Executive Officer 	 
	 



Signature Page to Contribution, Conveyance and Assumption Agreement