EXHIBIT 4.5
GUARANTY AGREEMENT
(364-Day Credit Facility)
by
ENTERPRISE PRODUCTS PARTNERS L.P.
in favor of
FIRST UNION NATIONAL BANK, as
Administrative Agent
Dated as of November 17, 2000
TABLE OF CONTENTS
Page
ARTICLE 1
---------
General Terms
-------------
Section 1.1 Terms Defined Above
Section 1.2 Certain Definitions
Section 1.3 Credit Agreement Definitions
ARTICLE 2
---------
The Guaranty
------------
Section 2.1 Liabilities Guaranteed
Section 2.2 Nature of Guaranty
Section 2.3 Agent's Rights
Section 2.4 Guarantor's Waivers
Section 2.5 Maturity of Liabilities; Payment
Section 2.6 Agent's Expenses
Section 2.7 Liability
Section 2.8 Events and Circumstances Not Reducing or
Discharging Guarantor's Obligations
ARTICLE 3
---------
Representations and Warranties
------------------------------
Section 3.1 By Guarantor
Section 3.2 No Representation by Lenders
ARTICLE 4
---------
Subordination of Indebtedness
-----------------------------
Section 4.1 Subordination of All Guarantor Claims
Section 4.2 Claims in Bankruptcy
Section 4.3 Payments Held in Trust
Section 4.4 Liens Subordinate
Section 4.5 Notation of Records
ARTICLE 5
---------
Miscellaneous
-------------
Section 5.1 Successors and Assigns
Section 5.2 Notices
Section 5.3 Construction
Section 5.4 Invalidity
Section 5.5 Liability of General Partner
Section 5.6 ENTIRE AGREEMENT
GUARANTY AGREEMENT
(364-Day Credit Facility)
THIS GUARANTY AGREEMENT, dated as of November 17, 2000, by ENTERPRISE
PRODUCTS PARTNERS L.P., a Delaware limited partnership (the "Guarantor"), is in
favor of FIRST UNION NATIONAL BANK, as Administrative Agent (the "Agent") for
the several lenders ("Lenders") that are or become parties to the Credit
Agreement defined below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, ENTERPRISE PRODUCTS OPERATING L.P., a Delaware limited partnership
(the "Borrower"), the Agent, The Chase Manhattan Bank, as Syndication Agent,
Bank One, NA, as Documentation Agent, and the Lenders have entered into that
certain Credit Agreement dated as of November 17, 2000 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"); and
WHEREAS, one of the terms and conditions stated in the Credit Agreement for
the making of the loans described therein is the execution and delivery to the
Agent for the benefit of the Lenders of this Guaranty Agreement;
NOW, THEREFORE, (i) in order to comply with the terms and conditions of the
Credit Agreement, (ii) to induce the Lenders, at any time or from time to time,
to loan monies, with or without security to or for the account of Borrower in
accordance with the terms of the Credit Agreement, (iii) at the special
insistence and request of the Lenders, and (iv) for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby agrees as follows:
ARTICLE 1
---------
General Terms
-------------
Section 1.1 Terms Defined Above. As used in this Guaranty Agreement, the
terms "Agent", "Borrower", "Credit Agreement", "Guarantor" and "Lenders" shall
have the meanings indicated above.
Section 1.2 Certain Definitions. As used in this Guaranty Agreement, the
following terms shall have the following meanings, unless the context otherwise
requires:
"Guarantor Claims" shall have the meaning indicated in Section 4.1 hereof.
"Guaranty Agreement" shall mean this Guaranty Agreement, as the same may
from time to time be amended, supplemented, or otherwise modified.
"Liabilities" shall mean (a) any and all Indebtedness of the Borrower
pursuant to the Credit Agreement, including without limitation (i) the
unpaid principal of and interest on the Loans, including without
limitation, interest accruing subsequent to the filing of a petition or
other action concerning bankruptcy or other similar proceeding, and (ii)
any other amount owed by the Borrower under the Credit Agreement, and (b)
all renewals, rearrangements, increases, extensions for any period,
amendments, supplements, exchanges or reissuances in whole or in part of
the Indebtedness of Borrower under the Credit Agreement, or any other
documents or instruments evidencing any of the above.
Section 1.3 Credit Agreement Definitions. Unless otherwise defined herein,
all terms beginning with a capital letter which are defined in the Credit
Agreement shall have the same meanings herein as therein.
ARTICLE 2
---------
The Guaranty
------------
Section 2.1 Liabilities Guaranteed. Guarantor hereby irrevocably and
unconditionally guarantees in favor of the Agent for the benefit of the Lenders
the prompt payment of the Liabilities when due, whether at maturity or
otherwise.
Section 2.2 Nature of Guaranty. This Guaranty Agreement is an absolute,
irrevocable, completed and continuing guaranty of payment and not a guaranty of
collection, and no notice of the Liabilities or any extension of credit already
or hereafter contracted by or extended to Borrower need be given to Guarantor.
This Guaranty Agreement may not be revoked by Guarantor and shall continue to be
effective with respect to debt under the Liabilities arising or created after
any attempted revocation by Guarantor and shall remain in full force and effect
until the Liabilities are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto no Liabilities may be
outstanding. Borrower and the Lenders may modify, alter, rearrange, extend for
any period and/or renew from time to time the Liabilities, and the Lenders may
waive any Default or Events of Default without notice to the Guarantor and in
such event Guarantor will remain fully bound hereunder on the Liabilities. This
Guaranty Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of the Liabilities is rescinded or must
otherwise be returned by any of the Lenders upon the insolvency, bankruptcy or
reorganization of Borrower or otherwise, all as though such payment had not been
made. This Guaranty Agreement may be enforced by the Agent and any subsequent
holder of any of the Liabilities and shall not be discharged by the assignment
or negotiation of all or part of the Liabilities. Guarantor hereby expressly
waives presentment, demand, notice of non-payment, protest and notice of protest
and dishonor, notice of Default or Event of Default, notice of intent to
accelerate the maturity and notice of acceleration of the maturity and any other
notice in connection with the Liabilities, and also notice of acceptance of this
Guaranty Agreement, acceptance on the part of the Agent for the benefit of the
Lenders being conclusively presumed by the Lenders' request for this Guaranty
Agreement and delivery of the same to the Agent.
Section 2.3 Agent's Rights. Guarantor authorizes the Agent, without notice
or demand and without affecting Guarantor's liability hereunder, to take and
hold security for the payment of this Guaranty Agreement and/or the Liabilities,
and exchange, enforce, waive and release any such security; and to apply such
security and direct the order or manner of sale thereof as the Agent in its
2
discretion may determine; and to obtain a guaranty of the Liabilities from any
one or more Persons and at any time or times to enforce, waive, rearrange,
modify, limit or release any of such other Persons from their obligations under
such guaranties.
Section 2.4 Guarantor's Waivers.
(a) General. Guarantor waives any right to require any of the Lenders
to (i) proceed against Borrower or any other person liable on the
Liabilities, (ii) enforce any of their rights against any other guarantor
of the Liabilities, (iii) proceed or enforce any of their rights against or
exhaust any security given to secure the Liabilities, (iv) have Borrower
joined with Guarantor in any suit arising out of this Guaranty Agreement
and/or the Liabilities, or (v) pursue any other remedy in the Lenders'
powers whatsoever. Except as provided in the Credit Agreement, the Lenders
shall not be required to mitigate damages or take any action to reduce,
collect or enforce the Liabilities, and the failure to so mitigate or take
any such action shall not release the Guarantor from this Guaranty
Agreement. Guarantor waives any defense arising by reason of any
disability, lack of partnership authority or power, or other defense of
Borrower or any other guarantor of the Liabilities, and shall remain liable
hereon regardless of whether Borrower or any other guarantor be found not
liable thereon for any reason. Whether and when to exercise any of the
remedies of the Lenders under the Credit Agreement shall be in the sole and
absolute discretion of the Agent, and no delay by the Agent in enforcing
any remedy, including delay in conducting a foreclosure sale, shall be a
defense to the Guarantor's liability under this Guaranty Agreement. To the
extent allowed by applicable law, the Guarantor hereby waives any good
faith duty on the part of the Agent in exercising any remedies provided in
the Credit Agreement.
(b) Subrogation. Until the Liabilities have been paid in full, the
Guarantor waives all rights of subrogation or reimbursement against the
Borrower, whether arising by contract or operation of law (including,
without limitation, any such right arising under any federal or state
bankruptcy or insolvency laws) and waives any right to enforce any remedy
which the Lenders now have or may hereafter have against the Borrower, and
waives any benefit or any right to participate in any security now or
hereafter held by the Agent or any Lender.
Section 2.5 Maturity of Liabilities; Payment. Guarantor agrees that
if the maturity of any of the Liabilities is accelerated by bankruptcy or
otherwise, such maturity shall also be deemed accelerated for the purpose
of this Guaranty Agreement without demand or notice to Guarantor. Guarantor
will, forthwith upon notice from the Agent, pay to the Agent the amount due
and unpaid by Borrower and guaranteed hereby. The failure of the Agent to
give this notice shall not in any way release Guarantor hereunder.
Section 2.6 Agent's Expenses. If Guarantor fails to pay the
Liabilities after notice from the Agent of Borrower's failure to pay any
Liabilities at maturity, and if the Agent obtains the services of an
attorney for collection of amounts owing by Guarantor hereunder, or
3
obtaining advice of counsel in respect of any of its rights under this
Guaranty Agreement, or if suit is filed to enforce this Guaranty Agreement,
or if proceedings are had in any bankruptcy, receivership or other judicial
proceedings for the establishment or collection of any amount owing by
Guarantor hereunder, or if any amount owing by Guarantor hereunder is
collected through such proceedings, Guarantor agrees to pay to the Agent
the Agent's reasonable attorneys' fees.
Section 2.7 Liability. It is expressly agreed that the liability of the
Guarantor for the payment of the Liabilities guaranteed hereby shall be primary
and not secondary.
Section 2.8 Events and Circumstances Not Reducing or Discharging
Guarantor's Obligations. Guarantor hereby consents and agrees to each of the
following to the fullest extent permitted by law, and agrees that Guarantor's
obligations under this Guaranty Agreement shall not be released, diminished,
impaired, reduced or adversely affected by any of the following, and waives any
rights (including without limitation rights to notice) which Guarantor might
otherwise have as a result of or in connection with any of the following:
(a) Modifications, etc. Any renewal, extension, modification,
increase, decrease, alteration, rearrangement, exchange or reissuance of
all or any part of the Liabilities, or of the Letters of Credit or the
Credit Agreement or any instrument executed in connection therewith, or any
contract or understanding between Borrower and any of the Lenders, or any
other Person, pertaining to the Liabilities;
(b) Adjustment, etc. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by any of the Lenders to Borrower
or Guarantor or any Person liable on the Liabilities;
(c) Condition of Borrower or Guarantor. The insolvency, bankruptcy
arrangement, adjustment, composition, liquidation, disability, dissolution,
death or lack of power of Borrower or Guarantor or any other Person at any
time liable for the payment of all or part of the Liabilities; or any
dissolution of Borrower or Guarantor, or any sale, lease or transfer of any
or all of the assets of Borrower or Guarantor, or any changes in the
shareholders, partners, or members of Borrower or Guarantor; or any
reorganization of Borrower or Guarantor;
(d) Invalidity of Liabilities. The invalidity, illegality or
unenforceability of all or any part of the Liabilities, or any document or
agreement executed in connection with the Liabilities, for any reason
whatsoever, including without limitation the fact that the Liabilities, or
any part thereof, exceed the amount permitted by law, the act of creating
the Liabilities or any part thereof is ultra vires, the officers or
representatives executing the documents or otherwise creating the
Liabilities acted in excess of their authority, the Liabilities violate
applicable usury laws, the Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Liabilities
wholly or partially uncollectible from Borrower, the creation, performance
or repayment of the Liabilities (or the execution, delivery and performance
of any document or instrument representing part of the Liabilities or
executed in connection with the Liabilities, or given to secure the
repayment of the Liabilities) is illegal, uncollectible, legally impossible
or unenforceable, or the Credit Agreement or other documents or instruments
4
pertaining to the Liabilities have been forged or otherwise are irregular
or not genuine or authentic;
(e) Release of Obligors. Any full or partial release of the liability
of Borrower on the Liabilities or any part thereof, of any co-guarantors,
or any other Person now or hereafter liable, whether directly or
indirectly, jointly, severally, or jointly and severally, to pay, perform,
guarantee or assure the payment of the Liabilities or any part thereof, it
being recognized, acknowledged and agreed by Guarantor that Guarantor may
be required to pay the Liabilities in full without assistance or support of
any other Person, and Guarantor has not been induced to enter into this
Guaranty Agreement on the basis of a contemplation, belief, understanding
or agreement that other parties other than the Borrower will be liable to
perform the Liabilities, or the Lenders will look to other parties to
perform the Liabilities.
(f) Other Security. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part
of the Liabilities;
(g) Release of Collateral, etc. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of
any collateral, property or security, at any time existing in connection
with, or assuring or securing payment of, all or any part of the
Liabilities;
(h) Care and Diligence. The failure of the Lenders or any other Person
to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security;
(i) Status of Liens. The fact that any collateral, security, security
interest or lien contemplated or intended to be given, created or granted
as security for the repayment of the Liabilities shall not be properly
perfected or created, or shall prove to be unenforceable or subordinate to
any other security interest or lien, it being recognized and agreed by
Guarantor that Guarantor is not entering into this Guaranty Agreement in
reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectability or value of any collateral for the
Liabilities;
(j) Payments Rescinded. Any payment by Borrower to the Lenders is held
to constitute a preference under the bankruptcy laws, or for any reason the
Lenders are required to refund such payment or pay such amount to Borrower
or someone else; or
(k) Other Actions Taken or Omitted. Any other action taken or omitted
to be taken with respect to the Credit Agreement, the Liabilities, or the
security and collateral therefor, whether or not such action or omission
prejudices Guarantor or increases the likelihood that Guarantor will be
5
required to pay the Liabilities pursuant to the terms hereof; it being the
unambiguous and unequivocal intention of Guarantor that Guarantor shall be
obligated to pay the Liabilities when due, notwithstanding any occurrence,
circumstance, event, action, or omission whatsoever, whether contemplated
or uncontemplated, and whether or not otherwise or particularly described
herein, except for the full and final payment and satisfaction of the
Liabilities.
ARTICLE 3
---------
Representations and Warranties
------------------------------
Section 3.1 By Guarantor. In order to induce the Lenders to accept this
Guaranty Agreement, Guarantor represents and warrants to the Lenders (which
representations and warranties will survive the creation of the Liabilities and
any extension of credit thereunder) that:
(a) Benefit to Guarantor. Guarantor's guaranty pursuant to this
Guaranty Agreement reasonably may be expected to benefit, directly or
indirectly, Guarantor.
(b) Existence. Guarantor is a limited partnership duly organized and
legally existing under the laws of the State of Delaware and is duly
qualified in all jurisdictions wherein the property owned or the business
transacted by it makes such qualification necessary, except where the
failure to be so qualified could reasonably be expected to have a Material
Adverse Effect.
(c) Power and Authorization. Guarantor is duly authorized and
empowered to execute, deliver and perform this Guaranty Agreement and all
action on Guarantor's part requisite for the due execution, delivery and
performance of this Guaranty Agreement has been duly and effectively taken.
(d) Binding Obligations. This Guaranty Agreement constitutes a valid
and binding obligation of Guarantor, enforceable in accordance with its
terms (except that enforcement may be subject to any applicable bankruptcy,
insolvency or similar laws generally affecting the enforcement of
creditors' rights).
(e) No Legal Bar. This Guaranty Agreement will not violate any
provisions of Guarantor's limited partnership agreement or any contract,
agreement, law, regulation, order, injunction, judgment, decree or writ to
which Guarantor is subject.
(f) No Consent. Guarantor's execution, delivery and performance of
this Guaranty Agreement does not require the consent or approval of any
other Person, including without limitation any regulatory authority or
governmental body of the United States or any state thereof or any
political subdivision of the United States or any state thereof.
6
(g) Solvency. The Guarantor hereby represents that (i) it is not
insolvent as of the date hereof and will not be rendered insolvent as a
result of this Guaranty Agreement, (ii) it is not engaged in business or a
transaction, or about to engage in a business or a transaction, for which
any property or assets remaining with such Guarantor is unreasonably small
capital, and (iii) it does not intend to incur, or believe it will incur,
debts that will be beyond its ability to pay as such debts mature.
Section 3.2 No Representation by Lenders. Neither the Lenders nor any
other Person has made any representation, warranty or statement to the
Guarantor in order to induce the Guarantor to execute this Guaranty
Agreement.
ARTICLE 4
---------
Subordination of Indebtedness
-----------------------------
Section 4.1 Subordination of All Guarantor Claims. As used herein, the
term "Guarantor Claims" shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligation of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor. The Guarantor Claims shall include without limitation
all rights and claims of Guarantor against Borrower arising as a result of
subrogation or otherwise as a result of Guarantor's payment of all or a portion
of the Liabilities. Until the Liabilities shall be paid and satisfied in full
and Guarantor shall have performed all of its obligations hereunder, Guarantor
shall not receive or collect, directly or indirectly, from Borrower or any other
party any amount upon the Guarantor Claims if an Event of Default exists at the
time of such receipt or collection.
Section 4.2 Claims in Bankruptcy. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving Borrower as debtor, the Lenders shall have the right to
prove their claim in any proceeding, so as to establish its rights hereunder and
receive directly from the receiver, trustee or other court custodian, dividends
and payments which would otherwise be payable upon Guarantor Claims up to the
amount of the Liabilities. Guarantor hereby assigns such dividends and payments
to the Lenders up to the amount of the Liabilities. Should the Agent or any
Lender receive, for application upon the Liabilities, any such dividend or
payment which is otherwise payable to Guarantor, and which, as between Borrower
and Guarantor, shall constitute a credit upon the Guarantor Claims, then upon
payment in full of the Liabilities, Guarantor shall become subrogated to the
rights of the Lenders to the extent that such payments to the Lenders on the
Guarantor Claims have contributed toward the liquidation of the Liabilities, and
such subrogation shall be with respect to that proportion of the Liabilities
which would have been unpaid if the Agent or a Lender had not received dividends
or payments upon the Guarantor Claims.
7
Section 4.3 Payments Held in Trust. In the event that notwithstanding
Sections 4.1 and 4.2 above, Guarantor should receive any funds, payments, claims
or distributions which is prohibited by such Sections, Guarantor agrees to hold
in trust for the Lenders an amount equal to the amount of all funds, payments,
claims or distributions so received, and agrees that it shall have absolutely no
dominion over the amount of such funds, payments, claims or distributions except
to pay them promptly to the Agent, and Guarantor covenants promptly to pay the
same to the Agent.
Section 4.4 Liens Subordinate. Guarantor agrees that any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower's assets
securing payment of the Guarantor Claims shall be and remain inferior and
subordinate to any liens, security interests, judgment liens, charges or other
encumbrances upon Borrower's assets securing payment of the Liabilities,
regardless of whether such encumbrances in favor of Guarantor, the Agent or the
Lenders presently exist or are hereafter created or attach. Without the prior
written consent of the Lenders, Guarantor shall not (a) exercise or enforce any
creditor's right it may have against the Borrower, or (b) foreclose, repossess,
sequester or otherwise take steps or institute any action or proceeding
(judicial or otherwise, including without limitation the commencement of or
joinder in any liquidation, bankruptcy, rearrangement, debtor's relief or
insolvency proceeding) to enforce any lien, mortgages, deeds of trust, security
interest, collateral rights, judgments or other encumbrances on assets of
Borrower held by Guarantor.
Section 4.5 Notation of Records. All promissory notes accepted by or held
by Guarantor shall contain a specific written notice thereon that the
indebtedness evidenced thereby is subordinated under the terms of this Guaranty
Agreement.
ARTICLE 5
---------
Miscellaneous
-------------
Section 5.1 Successors and Assigns. This Guaranty Agreement is and shall
be in every particular available to the respective successors and assigns of the
Agent and the Lenders and is and shall always be fully binding upon the legal
representatives, heirs, successors and assigns of Guarantor, notwithstanding
that some or all of the monies, the repayment of which is guaranteed by this
Guaranty Agreement, may be actually advanced after any bankruptcy, receivership,
reorganization, death, disability or other event affecting Guarantor.
Section 5.2 Notices. Any notice or demand to Guarantor under or in
connection with this Guaranty Agreement may be given and shall conclusively be
deemed and considered to have been given and received in accordance with Section
9.01 of the Credit Agreement, addressed to Guarantor at the address on the
signature page hereof or at such other address provided by the Guarantor to the
Agent in writing.
Section 5.3 Construction. This Guaranty Agreement is a contract made under
and shall be construed in accordance with and governed by the laws of the State
of New York.
8
Section 5.4 Invalidity. In the event that any one or more of the
provisions contained in this Guaranty Agreement shall, for any reason, be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Guaranty
Agreement.
Section 5.5 Liability of General Partner. It is hereby understood and
agreed that Enterprise Products GP, LLC, the general partner of the Guarantor,
shall have no personal liability, as general partner or otherwise, for the
payment of the Liabilities or any amount owing or to be owing hereunder.
Section 5.6 ENTIRE AGREEMENT. This Written Guaranty Agreement Embodies the
Entire Agreement and Understanding Between the Agent, The Lenders and the
Guarantor and Supersedes All Other Agreements and Understandings Between Such
Parties Relating to the Subject Matter Hereof and Thereof. This Written Guaranty
Agreement Represents the Final Agreement Between the Parties and May Not Be
Contradicted by Evidence of Prior, Contemporaneous, or Subsequent Oral
Agreements of the Parties. There Are No Unwritten Oral Agreements Between the
Parties.
9
WITNESS THE EXECUTION HEREOF, as of the date first above written.
ENTERPRISE PRODUCTS PARTNERS L.P.,
a Delaware limited partnership
By: Enterprise Products GP, LLC, General Partner
By: /s/ Michael A. Creel
--------------------------------------
Name: Michael A. Creel
Title: Sr. Vice President
and Chief Financial Officer
2727 North Loop West
7th Floor
Houston, Texas 77008
10