EXHIBIT 3(d)
REORGANIZATION AGREEMENT
THIS REORGANIZATION AGREEMENT, dated as of March 4, 2002, is entered
into by and among Xxxxxxxx Energy Partners L.P., a Delaware limited partnership
(the "MLP"), Xxxxxxxx OLP, L.P., a Delaware limited partnership (the "OLP"),
Xxxxxxxx XX LLC, a Delaware limited liability company ("GP LLC") and Xxxxxxxx XX
Inc., a Delaware corporation ("GP Inc.").
RECITALS
WHEREAS, GP LLC owns a 1% general partner interest in the MLP and a
1.0101% general partner interest in the OLP;
WHEREAS, the parties to this Agreement have determined that it would be
in their best interests to reorganize the equity ownership structure of the OLP
such that the OLP becomes a 100%-owned subsidiary of the MLP;
WHEREAS, in order to accomplish the objectives and purposes in the
preceding recital, prior to the date hereof, the MLP has formed GP Inc. and
contributed $1,000 in exchange for all of the capital stock in GP Inc.;
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In addition to the capitalized terms defined in the
opening paragraph of this Agreement, the following capitalized terms shall have
the meanings given below.
"Agreement" means this Reorganization Agreement.
"Delaware Act" means the Delaware Revised Uniform Limited
Partnership Act.
"MLP Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of Xxxxxxxx Energy Partners L.P. dated as of
February 9, 2001, as the same may be amended or restated pursuant to the terms
hereof.
"OLP Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of Xxxxxxxx OLP, L.P. dated as of February 9,
2001, as the same may be amended or restated pursuant to the terms hereof.
"Revised OLP General Partner Interest" has the meaning set
forth in Section 2.1.
"Revised OLP Limited Partner Interest" has the meaning set
forth in Section 2.2.
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ARTICLE II
CONTRIBUTIONS AND ASSIGNMENTS
2.1 Contribution by the MLP to GP Inc. The MLP hereby grants,
contributes, transfers and conveys to GP Inc., its successors and assigns, all
right, title and interest in and to a .001% limited partner interest in the OLP
(the "Revised OLP General Partner Interest") and GP Inc. hereby accepts the
Revised OLP General Partner Interest as a contribution to the capital of GP Inc.
2.2 Recharacterization of Interests. Effective contemporaneously with
contribution of the Revised OLP General Partner Interest pursuant to Section 2.1
hereof, (i) the Revised OLP General Partner Interest shall be recharacterized as
a general partner interest and (ii) the 1.0101% general partner interest held by
GP LLC in the OLP (the "Revised OLP Limited Partner Interest") shall be
recharacterized as a limited partner interest. The OLP hereby acknowledges
receipt of the opinion of counsel required in Section 4.2 of the OLP Partnership
Agreement.
2.3 Contribution by GP LLC to the MLP. Effective contemporaneously with
the contribution of the Revised OLP General Partner Interest pursuant to Section
2.1 hereof and the recharacterization of interests pursuant to Section 2.2
hereof, GP LLC hereby grants, contributes, transfers, assigns and conveys to the
MLP, its successors and assigns, all right, title and interest of GP LLC in and
to the Revised OLP Limited Partner Interest, and the MLP hereby accepts the
Revised OLP Limited Partner Interest, as a contribution to the capital of the
MLP in exchange for the increase in the general partner interest of GP LLC in
the MLP as set forth in Section 5.2 hereof.
ARTICLE III
SUCCESSION OF GENERAL PARTNER OF THE OLP
3.1 Withdrawal of GP LLC as General Partner of OLP. Effective
contemporaneously with the contribution of the Revised OLP General Partner
Interest pursuant to Section 2.1 hereof, the recharacterization of interests
pursuant to Section 2.2 hereof and pursuant to Section 11.1 of the OLP
Partnership Agreement, GP LLC hereby ceases to be and withdraws as general
partner of the OLP and proposes GP Inc. to act and serve as sole general partner
of the OLP. The OLP acknowledges receipt of the opinion of counsel required in
Section 11.1(b) of the OLP Partnership Agreement.
3.2 GP Inc. as Successor General Partner of OLP. Effective
contemporaneously with (i) GP Inc.'s acceptance of the contributions to GP Inc.
of the Revised OLP General Partner Interest pursuant to Section 2.1 and the
recharacterization of such interest pursuant to Section 2.2 and (ii) the
cessation and withdrawal of GP LLC as general partner of the OLP, GP Inc.
accepts and agrees to duly and timely pay, perform and discharge the rights,
duties and obligations of the general partner of the OLP and all of the terms
and conditions of the OLP Partnership Agreement in accordance with Section 10.4
of the OLP Partnership Agreement, and GP Inc. agrees to serve as general partner
of the OLP and to be bound by the OLP Partnership Agreement (and, to the extent
applicable, the MLP Partnership Agreement), as each is amended
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by this Agreement or as may be further amended by the terms of the respective
partnership agreement, and GP Inc. is hereby admitted as the successor general
partner of the OLP.
ARTICLE IV
ASSUMPTION OF AND INDEMNIFICATION FOR CERTAIN LIABILITIES
4.1 Assumption of Certain Liabilities and Obligations of GP LLC by GP
Inc. In connection with the transfer of the Revised OLP General Partner Interest
and the succession by GP Inc. as general partner of the OLP, GP Inc. hereby
assumes and agrees to duly and timely pay, perform and discharge all liabilities
and obligations of the OLP to the full extent (and only to the extent) that GP
LLC, as general partner of the OLP, has been or would have been in the future,
were it not for the execution and delivery of this Agreement, obligated to pay,
perform and discharge such liabilities and obligations
ARTICLE V
AMENDMENTS TO PARTNERSHIP AGREEMENTS
5.1 Amendments to the OLP Partnership Agreement. In order to further
the purposes of this Agreement, each of GP LLC, as withdrawing general partner
of the OLP, GP Inc., as successor general partner of the OLP, and the MLP, as
limited partner of the OLP, hereby approve and adopt the following amendments to
the OLP Partnership Agreement in accordance with Article XIII thereof:
(a) Article I - Definitions is hereby amended by adding or
amending the definitions of the following terms to read in their
entirety as follows:
"Conflicts Committee" means a committee of the board
of directors of the MLP General Partner composed entirely of
two or more directors who are neither security holders,
officers nor employees of the MLP General Partner nor
officers, directors or employees of any Affiliate of such
entity.
"General Partner" means Xxxxxxxx XX Inc. and its
successors and permitted assigns as general partner of the
Partnership.
"GP Reorganization Agreement" means the
Reorganization Agreement, dated as of March 4, 2002 among the
Partnership, the MLP, the General Partner and the MLP General
Partner.
"MLP General Partner" means Xxxxxxxx XX LLC and its
successors and permitted assigns in its capacity as general
partner of the MLP.
"Percentage Interest" means as of the date of such
determination (a) as to the General Partner, 0.001% and (b) as
to the MLP, 99.999%.
"Special Approval" means approval by a majority of
the members of the Conflicts Committee.
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"Transfer" has the meaning assigned to such term in
Section 4.1(a).
(b) Section 4.2 is hereby amended to read in its entirety as
follows:
"Section 4.2 Transfer of General Partner's
Partnership Interest.
No provision of this Agreement shall be construed to
prevent (and the Limited Partners do hereby expressly consent
to) (i) the transfer by the General Partner of all or a
portion of its General Partner Interest to one or more
Affiliates, which transferred General Partner Interest, to the
extent not transferred to a successor General Partner, shall
constitute a Limited Partner Interest or (ii) the transfer by
the General Partner, in whole and not in part, of its General
Partner Interest upon its merger, consolidation or other
combination into any other Person or the transfer by it of all
or substantially all of its assets to another Person if, in
the case of a transfer described in either clause (i) or (ii)
of this sentence, the rights and duties of the General Partner
with respect to the General Partner Interest so transferred,
or the rights and duties of a Limited Partner with respect to
the Limited Partner Interest so transferred, are assumed by
the transferee and the transferee agrees to be bound by the
provisions of this Agreement; provided, however, that in
either such case, the transferee is primarily controlled,
directly or indirectly, by the MLP General Partner or any
Person primarily controlling, directly or indirectly, the MLP
General Partner; provided, further that in either such case,
such transferee furnishes to the Partnership an Opinion of
Counsel that such merger, consolidation, combination, transfer
or assumption will not result in a loss of limited liability
of the Limited Partners or cause the Partnership to be taxable
as a corporation or otherwise taxed as an entity for federal
income tax purposes. In the case of a transfer pursuant to
this Section 4.2 to a Person proposed as a successor general
partner of the Partnership, the transferee or successor (as
the case may be) shall be admitted to the Partnership as the
General Partner immediately prior to the transfer of the
Partnership Interest, and the business of the Partnership
shall continue without dissolution."
(c) Section 5.3 is hereby amended change the term "1.0101" to
"0.001" and to change the term "98.9899" to "99.999."
(d) Section 6.1(a)(ii) is hereby amended to read in its
entirety as follows:
"Second, 100% to the General Partner and the Limited
Partners in accordance with their respective Percentage
Interests."
(e) Section 6.1(b)(i) is hereby amended to read in its
entirety as follows:
"First, 100% to the General Partner and the Limited
Partners in accordance with their respective Percentage
Interests; provided, however, that the Net Losses shall not be
allocated to a Limited Partner pursuant to this Section
6.1(b)(i) to the extent that such allocation would cause a
Limited Partner to have deficit balance in its Adjusted
Capital Account at the end of such taxable year (or
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increase any existing deficit balance in such Limited
Partner's Adjusted Capital Account);"
(f) Section 6.1(c)(i)(B) is hereby amended to read in its
entirety as follows:
"Second, 100% to the General Partner and the Limited
Partners in accordance with their respective Percentage
Interests."
(g) The last sentence of Section 7.3(b) is hereby amended to
read in its entirety as follows:
"Without the approval of at least a Unit Majority,
the General Partner shall not (i) consent to any amendment to
this Agreement or except as expressly permitted by Section
7.9(d) of the MLP Agreement, take any action permitted to be
taken by a Partner, in either case, that would have a material
adverse effect on the MLP as a Partner or (ii) except as
permitted under Sections 4.2, 11.1 and 11.2 of this Agreement,
elect a successor general partner of the Partnership."
(h) The last sentence of Section 7.9(b) is hereby amended to
change the term "1.0101%" to "0.001%."
(i) Section 11.1(a)(iv) is hereby deleted in its entirety and
replaced with the word "[Reserved]".
(j) The second sentence of Section 11.1(b) is hereby amended
to read in its entirety as follows:
"If the General Partner gives a notice of withdrawal
pursuant to Section 11.1(a)(i) hereof, the Limited Partners
may, prior to the effective date of such withdrawal, elect a
successor General Partner."
(k) Section 11.2 is hereby amended to read in its entirety as
follows:
"Section 11.2 Removal of the General Partner. The
General Partner may be removed by the holders of a majority of
the Limited Partner Interests. If the General Partner is
removed pursuant to this Section 11.2, the Limited Partners
may, prior to the effective date of such removal, elect a
successor General Partner. The admission of any such successor
General Partner to the Partnership shall be subject to the
provisions of Section 10.4."
(l) Section 11.3(a) is hereby amended to delete the
parenthetical in the first sentence and to add a new third sentence
that reads in its entirety as follows:
"Notwithstanding the foregoing, an assignment of all
or any portion of a General Partner's (or Departing General
Partner's) Partnership Interest to the MLP as Limited Partner,
or to any other Person (other than an individual) the
ownership interest of which is then transferred to the MLP,
can be made in exchange for an increased interest in the MLP
and in lieu of a cash purchase."
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(m) Article XV is hereby amended to add the following
immediately after Section 15.10.
"Section 15.11 Amendments to Reflect GP
Reorganization Agreement. In addition to the amendments to
this Agreement contained in the GP Restructuring Agreement and
notwithstanding any other provision of this Agreement to the
contrary, this Agreement shall be deemed to be further amended
and modified to the extent necessary, but only to the extent
necessary, to carry out the purposes and intent of the GP
Reorganization Agreement."
5.2 Amendments to MLP Partnership Agreement. In order to further the
purposes of this Agreement and to evidence the increased interest of the general
partner in the MLP issued in exchange for the contributions to the MLP made
pursuant to Article II hereof, GP LLC, as general partner of the MLP, having
determined that the following amendments would not materially adversely affect
the limited partners of the MLP, hereby exercises its rights and powers to amend
the MLP Partnership Agreement without the approval of any limited partner or
assignee pursuant to Section 13.1(d)(i) of the MLP Partnership Agreement, hereby
approves and adopts the following amendments to the MLP Partnership Agreement in
accordance with Article XIII thereof:
(a) Section 1.1 is hereby amended by amending the definitions
of the following terms to read in their entirety as follows:
"GP Reorganization Agreement" means the
Reorganization Agreement, dated as of March 4, 2002, among the
Partnership, the Operating Partnership, the General Partner
and the Operating General Partner.
"Operating General Partner" means Xxxxxxxx XX Inc., a
Delaware corporation and wholly owned subsidiary of the
Partnership, and any successors and permitted assigns as the
general partner of the Operating Partnership.
"Operating Partnership" means Xxxxxxxx OLP, L.P., a
Delaware limited partnership, and such other Persons that are
treated as partnerships for federal income tax purposes that
are majority-owned by the Partnership and controlled by the
Partnership (whether by direct or indirect ownership of the
general partner of such Person or otherwise) and established
or acquired for the purpose of conducting the business of the
Partnership.
"Operating Partnership Agreement" means the agreement
of limited partnership of any Operating Partnership that is a
limited partnership, or any limited liability company
agreement of any Operating Partnership that is a limited
liability company that is treated as a partnership for federal
income tax purposes, as such may be amended, supplemented or
restated from time to time.
"Percentage Interest" means as of the date of such
determination (a) as to the General Partner, 2% and (b) as to
any Limited Partner or Assignee holding Units, the product of
(i) 98% multiplied by (ii) the quotient of (x) the number of
Units held by such Limited Partner or Assignee divided by (y)
the total number of
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all Units then Outstanding; provided, however, that following
any issuance of additional Units by the Partnership in
accordance with Section 5.6 hereof, proper adjustment shall be
made to the Percentage Interest represented by each Unit to
reflect such issuance. The Percentage Interest with respect to
an Incentive Distribution Right shall at all times be zero.
(b) The definition of Subordination Period in Section 1.1 is
hereby amended to delete the phrase "and on the general partner
interest in the Operating Partnership" in clause (a)(i).
(c) Section 4.6(c)(i) is hereby amended to delete the phrase
"and the Operating Partnership Agreement" both places it appears.
(d) Section 4.8(b) is hereby amended to delete the phrase "or
Operating Partnership" in the first sentence.
(e) Section 5.2(b) is hereby amended to change the term
"1/99th" to "2%."
(f) Section 5.8(a)(ii) and Section 5.8(b)(ii) are each hereby
amended to delete the phrase "and the Operating Partnerships" in the
last line of each section.
(g) Section 6.1(a)(ii), Section 6.1(b)(i) and Section
6.1(b)(ii) are each hereby amended to change the term "1%" to "2%" and
to change the term "99%" to "98%."
(h) Section 6.1(c)(i) is hereby amended to read in its
entirety as follows:
"(i) If a Net Termination Gain is recognized (or
deemed recognized pursuant to Section 5.5(d)), such Net
Termination Gain shall be allocated between the General
Partner and the Limited Partners in the following manner (and
the Capital Accounts of the Partners shall be increased by the
amount so allocated in each of the following subclauses, in
the order listed, before an allocation is made pursuant to the
next succeeding subclause):
(A) First, to each Partner having a deficit
balance in its Capital Account, in the proportion
that such deficit balance bears to the total deficit
balances in the Capital Accounts of all Partners,
until each such Partner has been allocated Net
Termination Gain equal to any such deficit balance in
its Capital Account;
(B) Second, 100% to the General Partner and
to all Limited Partners, in accordance with their
respective Percentage Interests, until the Capital
Account in respect of each Unit then Outstanding is
equal to the sum of (1) its Unrecovered Capital plus
(2) the Minimum Quarterly Distribution for the
Quarter during which the Liquidation Date occurs,
reduced by any distribution pursuant to Section
6.4(a)(i) or (b)(i) with respect to such Common Unit
for such Quarter (the amount determined pursuant to
this clause (2) is hereinafter defined as the "Unpaid
MQD") plus (3) any then existing Cumulative Common
Unit Arrearage;
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(C) Third, if such Net Termination Gain is
recognized (or is deemed to be recognized) prior to
the expiration of the Subordination Period, 100% to
the General Partner and to all Limited Partners, in
accordance with their respective Percentage Interests
until the Capital Account in respect of each
Subordinated Unit then Outstanding equals the sum of
(1) its Unrecovered Capital, determined for the
taxable year (or portion thereof) to which this
allocation of gain relates, plus (2) the Minimum
Quarterly Distribution for the Quarter during which
the Liquidation Date occurs, reduced by any
distribution pursuant to Section 6.4(a)(iii) with
respect to such Subordinated Unit for such Quarter;
(D) Fourth, 85% to all Unitholders, Pro
Rata, 13% to the holders of the Incentive
Distribution Rights, Pro Rata, and 2% to the General
Partner until the Capital Account in respect of each
Common Unit then Outstanding is equal to the sum of
(1) its Unrecovered Capital, plus (2) the Unpaid MQD,
plus (3) any then existing Cumulative Common Unit
Arrearage, plus (4) the excess of (aa) the First
Target Distribution less the Minimum Quarterly
Distribution for each Quarter of the Partnership's
existence over (bb) the cumulative per Unit amount of
any distributions of Operating Surplus that was
distributed pursuant to Sections 6.4(a)(iv) and
6.4(b)(ii) (the sum of (1) plus (2) plus (3) plus (4)
is hereinafter defined as the "First Liquidation
Target Amount");
(E) Fifth, 75% to all Unitholders, Pro Rata,
23% to the holders of the Incentive Distribution
Rights, Pro Rata, and 2% to the General Partner until
the Capital Account in respect of each Common Unit
then Outstanding is equal to the sum of (1) the First
Liquidation Target Amount, plus (2) the excess of
(aa) the Second Target Distribution less the First
Target Distribution for each Quarter of the
Partnership's existence over (bb) the cumulative per
Unit amount of any distributions of Operating Surplus
that was distributed pursuant to Sections 6.4(a)(v)
and 6.4(b)(iii) (the sum of (1) plus (2) is
hereinafter defined as the "Second Liquidation Target
Amount"); and
(F) Finally, any remaining amount 50% to all
Unitholders, Pro Rata, 48 % to the holders of the
Incentive Distribution Rights, Pro Rata, and 2% to
the General Partner."
(i) Section 6.1(c)(ii)(A) and Section 6.1(c)(ii)(B) are each
hereby amended to change the term "99%" to "98%" and to change the term
"1%" to "99%."
(j) Sections 6.4 and 6.5 are hereby amended to read in their
entirety as follows:
"Section 6.4 Distributions of Available Cash from
Operating Surplus.
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(a) During Subordination Period. Available Cash with
respect to any Quarter within the Subordination Period that is
deemed to be Operating Surplus pursuant to the provisions of
Section 6.3 or 6.5 shall, subject to Section 17-607 of the
Delaware Act, be distributed as follows, except as otherwise
required by Section 5.6(b) in respect of additional
Partnership Securities issued pursuant thereto:
(i) First, 98% to the Unitholders holding Common
Units, Pro Rata, and 2% to the General
Partner until there has been distributed in
respect of each Common Unit then Outstanding
an amount equal to the Minimum Quarterly
Distribution for such Quarter;
(ii) Second, 98% to the Unitholders holding
Common Units, Pro Rata, and 2% to the
General Partner until there has been
distributed in respect of each Common Unit
then Outstanding an amount equal to the
Cumulative Common Unit Arrearage existing
with respect to such Quarter;
(iii) Third, 98% to the Unitholders holding
Subordinated Units, Pro Rata, and 2% to the
General Partner until there has been
distributed in respect of each Subordinated
Unit then Outstanding an amount equal to the
Minimum Quarterly Distribution for such
Quarter;
(iv) Fourth, 85% to all Unitholders, Pro Rata,
13% to the holders of the Incentive
Distribution Rights, Pro Rata, and 2% to the
General Partner until there has been
distributed in respect of each Unit then
Outstanding an amount equal to the excess of
the First Target Distribution over the
Minimum Quarterly Distribution for such
Quarter;
(v) Fifth, 75% to all Unitholders, Pro Rata, 23%
to the holders of the Incentive Distribution
Rights, Pro Rata, and 2% to the General
Partner until there has been distributed in
respect of each Unit then Outstanding an
amount equal to the excess of the Second
Target Distribution over the First Target
Distribution for such Quarter; and
(vi) Thereafter, 50% to all Unitholders, Pro
Rata, 48% to the holders of the Incentive
Distribution Rights, Pro Rata, and 2% to the
General Partner;
provided, however, if the Minimum Quarterly Distribution, the
First Target Distribution and the Second Target Distribution
have been reduced to zero pursuant to the second sentence of
Section 6.6(a), the distribution of Available Cash that is
deemed to be Operating Surplus with respect to any Quarter
will be made solely in accordance with Section 6.4(a)(vi).
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(b) After Subordination Period. Available Cash with
respect to any Quarter after the Subordination Period that is
deemed to be Operating Surplus pursuant to the provisions of
Section 6.3 or 6.5, subject to Section 17-607 of the Delaware
Act, shall be distributed as follows, except as otherwise
required by Section 5.6(b) in respect of additional
Partnership Securities issued pursuant thereto:
(i) First, 98% to all Unitholders, Pro Rata, and
2% to the General Partner until there has
been distributed in respect of each Unit
then Outstanding an amount equal to the
Minimum Quarterly Distribution for such
Quarter;
(ii) Second, 85% to all Unitholders, Pro Rata,
and 13% to the holders of the Incentive
Distribution Rights, Pro Rata, and 2% to the
General Partner until there has been
distributed in respect of each Unit then
Outstanding an amount equal to the excess of
the First Target Distribution over the
Minimum Quarterly Distribution for such
Quarter;
(iii) Third, 75% to all Unitholders, Pro Rata, and
23% to the holders of the Incentive
Distribution Rights, Pro Rata, and 2% to the
General Partner until there has been
distributed in respect of each Unit then
Outstanding an amount equal to the excess of
the Second Target Distribution over the
First Target Distribution for such Quarter;
and
(iv) Thereafter, 50% to all Unitholders, Pro
Rata, and 48% to the holders of the
Incentive Distribution Rights, Pro Rata, and
2% to the General Partner;
provided, however, if the Minimum Quarterly Distribution, the
First Target Distribution and the Second Target Distribution
have been reduced to zero pursuant to the second sentence of
Section 6.6(a), the distribution of Available Cash that is
deemed to be Operating Surplus with respect to any Quarter
will be made solely in accordance with Section 6.4(b)(iv).
"Section 6.5 Distributions of Available Cash
from Capital Surplus.
Available Cash that is deemed to be Capital
Surplus pursuant to the provisions of Section 6.3(a)
shall, subject to Section 17-607 of the Delaware Act,
be distributed, unless the provisions of Section 6.3
require otherwise, 98% to all Unitholders, Pro Rata,
and 2% to the General Partner until a hypothetical
holder of a Common Unit acquired on the Closing Date
has received with respect to such Common Unit, during
the period since the Closing Date through such date,
distributions of Available Cash that are deemed to be
Capital
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Surplus in an aggregate amount equal to the Initial
Unit Price. Available Cash that is deemed to be
Capital Surplus shall then be distributed 98% to all
Unitholders holding Common Units, Pro Rata, and 2% to
the General Partner until there has been distributed
in respect of each Common Unit then Outstanding an
amount equal to the Cumulative Common Unit Arrearage.
Thereafter, all Available Cash shall be distributed
as if it were Operating Surplus and shall be
distributed in accordance with Section 6.4."
(k) Section 7.1(a)(xiv) is hereby amended to read in its
entirety as follows:
"the undertaking of any action in connection with the
Partnership's ownership or operation of any Group Member,
including exercising, on behalf and for the benefit of the
Partnership, the Partnership's rights as the sole stockholder
of the Operating General Partner."
(l) Section 7.3(b) is hereby amended to delete the phrase "of
the Partnership or the Operating Partnership" in the last line of that
section.
(m) Section 7.5(a) is hereby amended to delete the references
to the Operating Partnership.
(n) Section 7.8(d) is hereby amended to add the phrase "and
the Operating General Partner's" immediately prior to the word
"directors."
(o) Section 7.9(b) is hereby amended to change the term "1%"
to "2%."
(p) Section 9.4 is hereby amended to delete the phrase "and
the Operating Partnership."
(q) Section 11.1(a)(i) is hereby amended to read in its
entirety as follows:
"The General Partner voluntarily withdraws from the Partnership by
giving notice to the other Partners."
(r) Section 11.3(a) is hereby amended to delete the phrase "or
an Operating Partnership Agreement."
(s) Section 11.3(c) is hereby amended to change the term
"1/99th" to "2%" and to change the term "1%" to "2%" both places it
appears.
(t) Article XVI is hereby amended to add the following
immediately after Section 16.10:
"Section 16.11 Amendments to Reflect GP
Reorganization Agreement. In addition to the amendments to
this Agreement contained in the GP Restructuring Agreement and
notwithstanding any other provision of this Agreement to the
contrary, this Agreement shall be deemed to be further amended
and modified to the extent necessary, but only to the extent
necessary, to carry out the purposes and intent of the GP
Reorganization Agreement."
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5.3 Restatement of Partnership Agreements. Each of the partners of the
MLP and the OLP that is a party hereto agrees to execute and deliver a restated
and amended version of each of the MLP Partnership Agreement and the OLP
Partnership Agreement to which it is a party incorporating the amendments to
such agreement adopted by this Agreement together with such other amendments
intended to clarify the agreement as the general partner of such limited
partnership determines as are appropriate and not having a material adverse
effect on the limited partners of the partnership, and in the case of the MLP,
the holders of outstanding Units therein.
ARTICLE VI
MISCELLANEOUS
6.1 Other Assurances. From time to time after the date hereof, and
without any further consideration, each of the parties to this Agreement 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.
6.2 Costs. The MLP shall pay all expenses arising out of the
contributions, assignments and deliveries to be made hereunder, including the
expenses of amending the MLP Partnership Agreement and the OLP Partnership
Agreement.
6.3 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.
6.4 No Third Party Rights. The provisions of this Agreement are
intended to bind the parties signatory hereto as to each other and are not
intended to and do not create rights in any other person or confer upon any
other person any benefits, rights or remedies and no person is or is intended to
be a third party beneficiary of any of the provisions of this Agreement.
6.5 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
6.6 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
6.7 Amendment or Modification. This Agreement may be amended or
modified from time to time only by the written agreement of all the parties
hereto.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
XXXXXXXX ENERGY PARTNERS L.P.
By: XXXXXXXX XX LLC, as general partner
By: /s/ Xxx X. Xxxxxxxxxx
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Name: Xxx X. Xxxxxxxxxx
Title: Senior Vice President
XXXXXXXX XXX X.X.
By: XXXXXXXX XX LLC, as general partner
By: /s/ Xxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxx X. Xxxxxxxxxx
Title: Senior Vice President
XXXXXXXX XX LLC
By: /s/ Xxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxxxx
Title: Senior Vice President
XXXXXXXX XX INC.,
By: /s/ Xxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxxxx
Title: Senior Vice President
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