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EXHIBIT 3.5
AMENDMENT NO. 4 TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
EOTT ENERGY PARTNERS, L.P.
THIS AMENDMENT NO. 4 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF EOTT ENERGY PARTNERS, L.P. (this "Amendment"), dated as of
November 30, 1998, is entered into by EOTT Energy Corp., a Delaware corporation,
as the General Partner, pursuant to authority granted to it in Section 15.1(d)
of the Amended and Restated Agreement of Limited Partnership of EOTT Energy
Partners, L.P., dated as of March 25, 1994 (the "Partnership Agreement").
WHEREAS, Section 15.1(d)(i) of the Partnership Agreement provides that each
Limited Partner agrees that the General Partner (pursuant to its powers of
attorney from the Limited Partners and Assignees), without the approval of any
Limited Partner or Assignee, may amend any provision of the Partnership
Agreement, and may execute, swear to, acknowledge, deliver, file and record
whatever documents may be required in connection therewith, to reflect a change
that, in the sole discretion of the General Partner, does not adversely affect
the Limited Partners in any material respect; and
WHEREAS, the General Partner has determined that the change reflected in
this Amendment will be beneficial to the Limited Partners, including the holders
of the Common Units;
NOW, THEREFORE, the Partnership Agreement is hereby amended as follows:
1. AMENDMENT RELATING TO SUBORDINATED UNITS ISSUED TO XXXX PIPELINE
COMPANY, L.P. Section 5.7(c) of the Partnership Agreement is hereby amended by
adding the following sentence at the end thereof:
"Notwithstanding anything to the contrary herein, the General Partner may
not make the determination referred to above with respect to the 2,000,000
Subordinated Units to be issued to Xxxx Pipeline Company, L.P. pursuant to
the Purchase and Sale Agreement dated as of September 21, 1998 among the
Partnership, EOTT Energy Operating Limited Partnership, Xxxx Pipeline
Company, L.P. and Xxxx Oil Company, a division of Xxxx Industries, Inc.,
and such Subordinated Units may not be converted into Common Units, unless
and until the Partnership satisfies, with respect to the 2,000,0000 Common
Units that may be issued upon conversion thereof, all of the conditions to
the listing of such 2,000,000 Common Units on all National Securities
Exchanges on which the Common Units are listed for trading and such
2,000,000 Common Units have been so listed."
2. CAPITALIZED TERMS. Capitalized terms used but not defined herein are
used as defined in the Partnership Agreement. This Amendment will be governed by
and construed in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date first
written above.
GENERAL PARTNER:
EOTT ENERGY CORP.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
President and Chief Executive Officer
LIMITED PARTNERS:
All Limited Partners now and hereafter admitted as
limited partners of the Partnership, pursuant to
Powers of Attorney now and hereafter executed in
favor of, and granted and delivered to, the
General Partner.
By: EOTT Energy Corp.,
General Partner, as attorney-in-fact for all
Limited Partners pursuant to the Powers of
Attorney granted pursuant to Section 1.4.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
President and Chief Executive Officer
