EXHIBIT 3.2.3
AMENDMENT NO. 3
TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
HERITAGE OPERATING, L.P.
This Amendment No. 3 (this "Amendment") to the Amended and Restated
Agreement of Limited Partnership of Heritage Operating, L.P., a Delaware limited
partnership (the "Partnership"), dated as of June 27, 1996 and amended as of
August 10, 2000 and February 4, 2002 (as so amended, the "Partnership
Agreement") is entered into effective as of January 15, 2004 by U.S. Propane,
L.P., a Delaware limited partnership ("U.S. Propane"), as the general partner of
the Partnership, and Heritage Propane Partners, L.P., a Delaware limited
partnership (the "MLP"), as a limited partner of the Partnership. Capitalized
terms used but not defined herein shall have the meanings ascribed thereto in
the Partnership Agreement.
RECITALS
WHEREAS, this Amendment has been approved by the requisite vote of the
Partners of the Partnership and the MLP;
WHEREAS, the MLP and U.S. Propane have entered into a Contribution
Agreement, dated as of November 6, 2003 (the "Contribution Agreement"), among
the MLP, U.S. Propane and the parties named therein as Contributors, pursuant to
which the Contributors have agreed, subject to the terms and conditions therein,
to contribute certain interests owned by the Contributors to the MLP;
WHEREAS, in conjunction with the transactions required to be taken to
accommodate the interests contributed to the MLP pursuant to the Contribution
Agreement, the MLP, as the sole limited partner of the Partnership, and U.S.
Propane, as the sole general partner of the Partnership, hereby desire to effect
the actions taken herein;
WHEREAS, the MLP proposes to Transfer a .001% limited partner interest
in the Partnership (the "New OLP Interest") to Heritage LP, Inc., a wholly owned
Subsidiary of the MLP, and U.S. Propane, as the general partner of the
Partnership, and the MLP, as the sole limited partner of the Partnership at the
time of the Transfer, have consented to such Transfer and the admission of
Heritage LP, Inc. as an Additional Limited Partner pursuant to the provisions of
Section 7.3(a) and Section 10.4 of the Partnership Agreement;
WHEREAS, concurrently with the Transfer described above, U.S. Propane
proposes to convert its 1.0101% general partner interest in the Partnership (the
"General Partner Interest") into a 0.0% general partner interest (the "Retained
General Partner Interest") and a 1.0101% limited partner interest in the
Partnership (the "Transferred OLP Interest"), and the Partnership desires to
cause such conversion;
Amendment No. 3-Execution Copy
WHEREAS, U.S. Propane, as the general partner of the Partnership, and
the MLP, as the sole Limited Partner of the Partnership at the time of such
conversion, have consented to the conversion of the General Partner Interest
pursuant to the provisions of Section 4.2 and Section 4.3 of the Partnership
Agreement;
WHEREAS, U.S. Propane proposes to Transfer the Transferred OLP Interest
to the MLP, and U.S. Propane, as the general partner of the Partnership, and the
MLP, as the sole limited partner of the Partnership at the time of the Transfer,
have consented to the Transfer of the Transferred OLP Interest pursuant to the
provisions of Section 4.3 of the Partnership Agreement;
WHEREAS, MLP proposes to Transfer its entire limited partner interest
in the Partnership, consisting of a 99.999% limited partner interest in the
Partnership (the "MLP OLP Interest") to Heritage ETC, L.P., a Delaware limited
partnership ("New OLP"), and U.S. Propane, as the general partner of the
Partnership, and the MLP, as the sole limited partner of the Partnership at the
time of the Transfer, have consented to such Transfer and the admission of New
OLP as an Additional Limited Partner pursuant to the provisions of Section
7.3(a) and Section 10.4 of the Partnership Agreement;
NOW, THEREFORE, the Partnership Agreement is hereby amended as follows:
SECTION 1. Conversion of the General Partner Interest. The provisions
of Section 4.2 and Section 11.3 of the Partnership Agreement are hereby amended,
to the extent applicable, to permit the conversion of the General Partner
Interest into the Retained General Partner Interest and the Transferred OLP
Interest, and, upon effectiveness of this Amendment, (i) the General Partner
Interest shall be converted into the Retained General Partner Interest and the
Transferred OLP Interest, (ii) the Capital Account with respect to the General
Partner Interest shall Transfer in its entirety to the Transferred OLP Interest,
and a new Capital Account shall be maintained with respect to the Retained
General Partner Interest pursuant to Section 5.5 of the Partnership Agreement;
(iii) the definition of "Percentage Interest" in Section 1.1 of the Partnership
Agreement shall be amended to change "1.0101%" to "0.0%", and (iv) Section 5.3
of the Partnership Agreement shall be amended to delete the second and third
sentences thereof and to add a new second sentence in replacement thereof that
reads as follows: "The General Partner may, but shall not be obligated to, make
additional Capital Contributions to the Partnership."
SECTION 2. Transfer of the New OLP Interest. The provisions of Section
4.3 of the Partnership Agreement are hereby amended to permit the Transfer of
the New OLP Interest to Heritage LP, Inc., and, following such Transfer,
Heritage LP, Inc. shall be admitted as an Additional Limited Partner pursuant to
the provisions of Section 10.4 of the Partnership Agreement.
SECTION 3. Transfer of the Transferred OLP Interest. The provisions of
Section 4.2, Section 4.3 and Section 11.3 of the Partnership Agreement are
hereby amended to permit (i) the conversion of the General Partner Interest into
the General Partner Interest and the Transferred OLP Interest and (ii) the
Transfer of the Transferred OLP Interest to the MLP, in each case without
compliance with the provisions thereof.
Amendment No. 3-Execution Copy - 2 -
SECTION 4. Transfer of the MLP OLP Interest. The provisions of Section
4.3 of the Partnership Agreement are hereby amended to permit the Transfer of
the MLP OLP Interest from MLP to New OLP and, following such Transfer, New OLP
shall be admitted as an Additional Limited Partner with respect to the MLP OLP
Interest pursuant to the provisions of Section 10.4 of the Partnership
Agreement.
SECTION 5. Ratification of Partnership Agreement. Except as expressly
modified and amended herein, all of the terms and conditions of the Partnership
Agreement shall remain in full force and effect.
SECTION 6. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Delaware, without
regard to the principles of conflicts of law.
SECTION 7. Counterparts. This Amendment may be executed in
counterparts, all of which together shall constitute an agreement binding on all
the parties hereto, notwithstanding that all such parties are not signatories to
the original or the same counterpart.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
U.S. PROPANE, L.P.
By: U.S. Propane, L.L.C.
its general partner
By:_________________________________
H. Xxxxxxx Xxxxxxxx
President and Chief Executive
Officer
Amendment No. 3-Execution Copy - 3 -
LIMITED PARTNERS:
Heritage Propane Partners, L.P.
By: U.S. Propane, L.P.
its general partner
By: U.S. Propane, L.L.C.
its general partner
By:______________________________
H. Xxxxxxx Xxxxxxxx
President and Chief Executive
Officer
Amendment No. 3-Execution Copy - 4 -
