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EXHIBIT 10.1
AMENDMENT NUMBER 1
TO
THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
LEVIATHAN GAS PIPELINE PARTNERS, L.P.
THIS AMENDMENT NUMBER 1 TO THE AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT OF LEVIATHAN GAS PIPELINE PARTNERS, L.P., dated December
31, 1996 (this Amendment), is entered into by and among Leviathan Gas Pipeline
Company, a Delaware corporation, as the General Partner, and the Limited
Partners. In consideration of the covenants, conditions and agreements
contained herein, the parties hereto agree as follows:
R E C I T A L S
A. The General Partner of the Company has authorized a distribution
of one Common Unit or Preference Unit, as the case may be, for
each outstanding Common Unit or Preference Unit, as the case may
be.
B. In connection with such actions it is in the Partnership's best
interests to amend the Amended and Restated Agreement of Limited
Partnership of Leviathan Gas Pipeline Partners, L.P., dated as of
February 19, 1993 (the Partnership Agreement), by action of the
General Partner, pursuant to Section 15.1 of the Partnership
Agreement.
A G R E E M E N T
1. UNDEFINED TERMS. Undefined terms used herein are defined in the
Partnership Agreement.
2. AMENDMENTS.
A. Section 5.9 of the Partnership Agreement is amended and
restated in its entirety as follows:
Adjustments to Minimum Quarterly Distribution Levels, Target
Levels and Certain Other Provisions. (a) Adjustments to the
Minimum Quarterly Distribution, First Target Distribution,
Second Target Distribution and Third Target Distribution shall
be made in the following circumstances: (i) the Minimum
Quarterly Distribution, First Target Distribution, Second
Target Distribution and Third Target Distribution shall be
proportionately adjusted in the event of any distribution,
combination or subdivision (whether effected by a distribution
payable in Units or otherwise) of Units or other Partnership
Securities in accordance with Section 4.11; and (ii) in the
event of a distribution of Available Cash that is deemed to be
Cash from Interim Capital Transactions, the Minimum Quarterly
Distribution, First Target Distribution, Second Target
Distribution and Third Target Distribution shall be
proportionately adjusted downward to equal the
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product obtained by multiplying the otherwise applicable
Minimum Quarterly Distribution, First Target Distribution,
Second Target Distribution and Third Target Distribution, as
the same may have been previously adjusted by a fraction of
which the numerator is the Unrecovered Capital immediately
after giving effect to such distribution and the denominator
is the Unrecovered Capital immediately prior to giving effect
to such distribution.
(b) Adjustments to the number "2.40" (as such number
shall have been adjusted from time-to-time) in clauses (ii)
and (iii) of the definition of Conversion Date, the amount (as
such amount shall have been adjusted from time-to-time)
treated as having been distributed per Unit under such clause
(the Distributed Amount) and the number "5,000,000" (as such
number shall have been adjusted from time-to-time) in Section
4.4(c)(i) shall be proportionately made in the event of any
distribution, combination or subdivision (whether effected by
a distribution payable in Units or otherwise) of Units or
other Partnership Securities in accordance with Section 4.11.
(c) The Minimum Quarterly Distribution, First Target
Distribution, Second Target Distribution, Third Target
Distribution and the Distributed Amount and the number "2.40"
in clauses (ii) and (iii) of the definition of "Conversion
Date" (as such amount and number shall have been adjusted from
time-to-time) may also be adjusted under the circumstances,
and in the manner, set forth in Section 9.6.
B. Section 9.6 of the Partnership Agreement is amended and
restated in its entirety as follows:
Entity-Level Taxation. If legislation is enacted which causes
the Partnership to become treated as an association taxable as
a corporation for federal income tax purposes, then (a) with
respect to any calendar quarter thereafter the Minimum
Quarterly Distribution, First Target Distribution, Second
Target Distribution and Third Target Distribution, as the case
may be, shall be equal to the product of (i) each such
distribution amount multiplied by (ii) 1 minus the sum of (x)
the expected effective federal income tax rate applicable to
the Partnership (expressed as a decimal) plus (y) the expected
effective overall state and local income tax rate applicable
to the Partnership (expressed as a decimal), in each case, for
the taxable year in which such quarter occurs (after taking
into account the benefit of any deduction allowable for
federal income tax purposes with respect to the payment of
state and local income taxes) (the Rate); and (b) for purposes
of determining the Distributed Amount under clauses (ii) and
(iii) of the definition of "Conversion Date," the amount of an
actual distribution after such legislation is effective shall
be deemed to be the actual distribution divided by the Rate.
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3. MISCELLANEOUS.
(a) Pronouns and Plurals. Whenever the context may
required, any pronoun used in this Amendment shall include the
corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and
vice-versa.
(b) Further Action. The parties shall execute and
deliver all documents, provide all information and take or refrain
from taking action as may be necessary or appropriate to achieve the
purposes of this Amendment.
(c) Binding Effect. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their heirs,
executors, administrators, successors, legal representatives and
permitted assigns.
(d) Integration. This Amendment constitutes the entire
agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements and understandings
pertaining thereto.
(e) Creditors. None of the provisions of this Amendment
shall be for the benefit or, or shall be enforceable by, any creditor
of the Partnership.
(f) Waiver. No failure by any party to insist upon the
strict performance of any covenant duty, agreement or condition of
this Amendment or to exercise any right or remedy consequent upon a
breach thereof shall constitute a waiver of any such breach or any
other covenant duty, agreement or condition.
(g) Counterparts. This Amendment may be executed in
counterparts, all of which together shall constitute an agreement
binding on all of the parties hereto, notwithstanding that all such
parties are not signatories to the original or the same counterpart.
Each party shall become bound by this Amendment immediately upon
affixing its signature hereto, or, in the case of a Person acquiring a
Unit, upon executing and delivering a Transfer Application as
described in the Partnership Agreement, independently of the signature
of any other party.
(h) Applicable 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.
(i) Invalidity of Provisions. If any provision of this
Amendment is or becomes invalid, illegal or unenforceable in any
respect the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby.
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GENERAL PARTNER
LEVIATHAN GAS PIPELINE COMPANY
By: /s/ XXXXXX XXXXXXX
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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: Leviathan Gas Pipeline Company, General
Partner, as attorney-in-fact for all Limited
Partners pursuant to Powers of Attorney
granted pursuant to Section 1.4.
By: /s/ XXXXXX XXXXXXX
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