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EXHIBIT 3.1
FIRST AMENDMENT
TO
AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
OF DUKE ENERGY FIELD SERVICES, LLC
This First Amendment to Amended and Restated Limited Liability
Company Agreement of Duke Energy Field Services, LLC (this "Amendment"), dated
as of August 4, 2000, is entered into by and among Xxxxxxxx Gas Company, a
Delaware corporation ("PGC"), Duke Energy Field Services Corporation, a Delaware
corporation ("DEFS Holding"), Xxxxxxxx Gas Investment Company, a Delaware
corporation ("Xxxxxxxx Investment"), and Duke Energy Field Services Investment
Corp., a Delaware corporation ("DEFS Investment") and consented to by Xxxxxxxx
Petroleum Company ("Xxxxxxxx") and Duke Energy Corporation ("Duke").
WHEREAS, reference is made to that certain Amended and Restated
Limited Liability Company Agreement of Duke Energy Field Services, LLC by and
between PGC and DEFS Holding dated as of March 31, 2000 (the "LLC Agreement")
(capitalized terms used but not defined herein shall have the meaning given
thereto in the LLC Agreement); and
WHEREAS, PGC and DEFS Holding desire to amend the LLC Agreement to
provide for, among other things, the admission of Xxxxxxxx Investment and DEFS
Investment as Members of the Company;
NOW, THEREFORE, for and in consideration of the mutual benefits to
be derived from this Amendment, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE I
AMENDMENTS
The LLC Agreement is hereby amended as follows:
1.1 Section 1.1 is amended by inserting each of the following
definitions in its appropriate place in alphabetical order:
"Accounting Period" shall have the meaning set forth in Section
7.1(c).
"Amounts Past Due" shall have the meaning set forth in Section
7.6(c)(i).
"Cash Earnings" shall mean earnings of the Company (including
operating earnings and extraordinary earnings) after interest expense but
before income taxes, depreciation, amortization and special non-cash
charges, as determined on a semi-annual basis for each Preferred Payment
Date in accordance with GAAP consistently applied by the Company.
"Cash Earnings Limitation" shall have the meaning set forth in
Section 7.6(c)(i).
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"DEFS Investment" shall mean Duke Energy Field Services Investment
Corp., a Delaware corporation.
"Extension Period" shall have the meaning set forth in Section
7.6(c)(iii).
"Final Period" shall have the meaning set forth in Section 7.1(c).
"First Amendment" shall mean the First Amendment to Amended and
Restated Limited Liability Company Agreement of Duke Energy Field
Services, LLC dated as of August 4, 2000, by and among PGC, DEFS Holding,
Xxxxxxxx Investment and DEFS Investment.
"Other Preferred Member" shall have the meaning set forth in Section
7.6(c)(iv).
"Xxxxxxxx Investment" shall mean Xxxxxxxx Gas Investment Company, a
Delaware corporation.
"Preferred Contribution" shall mean, with respect to either
Preferred Member, such Preferred Member's respective Capital Contribution
made to the Company pursuant to Section 6.1(b).
"Preferred Distribution Rate" shall have the meaning set forth in
Section 7.6(c)(i).
"Preferred Interest" shall mean, with respect to either Preferred
Member, such Preferred Member's respective interest in the Company.
"Preferred Mandatory Payment" shall have the meaning set forth in
Section 7.6(c)(i).
"Preferred Payment Date" shall have the meaning set forth in Section
7.6(c)(ii).
"Preferred Mandatory Redemption Date" shall have the meaning set
forth in Section 6.4(b).
"Preferred Member" shall mean one or more of Xxxxxxxx Investment,
DEFS Investment and any Person hereafter admitted to the Company as a
Preferred Member as provided in this Agreement, as the context may
require, but such term does not include any Person who has ceased to be a
Preferred Member in the Company.
"Preferred Tax Amount" shall have the meaning set forth in Section
7.6(c)(iv).
"Preferred Term" shall have the meaning set forth in Section 7.1(c).
1.2 Section 1.1 is further amended as follows:
1.2.1. The definition of "Company Interest" is amended by
deleting "either" in the first line thereof and inserting "any" in replacement
therefor:
1.2.2. The definition of "Depreciation" is amended by
inserting "(other than the Preferred Members)" at the end thereof prior to the
period.
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1.2.3. The definition of "Fair Market Value" is amended by
inserting the following at the end thereof:
"; provided, however, that the Fair Market Value of any Preferred
Interest shall equal the amount that would be payable to repay and
redeem such Preferred Interest pursuant to Section 6.4(b)."
1.2.4. The definition of "Member" is amended by inserting ",
Xxxxxxxx Investment, DEFS Investment" after the words "DEFS Holding, PGC".
1.2.5. The definition of "Parent Company Agreement" is amended
by inserting the words ", as amended" after the words "and DEFS Holding".
1.2.6. The definition of "Percentage Interest" is amended by
deleting it in its entirety and inserting the following in replacement therefor:
"Percentage Interest" shall mean, with respect to (a) the Company
Interest issued to DEFS Holding pursuant to Section 2.1(j)(i) of the
Contribution Agreement, 69.7 percent; (b) the Company Interest
issued to PGC pursuant to Section 2.1(k)(i) of the Contribution
Agreement, 30.3 percent; (c) the Preferred Interest of DEFS
Investment, 69.7 percent, and (d) the Preferred Interest of Xxxxxxxx
Investment, 30.3 percent.
1.2.7. The definition of "Profits" and "Losses" is amended by
inserting "included in amounts allocated pursuant to Section 7.1(c) or" in
clause (g) thereof after the word "thereof" in the third line thereof.
1.2.8. The definition of "Two Year Period" is amended by (1)
inserting the phrase "one Business Day following" at the beginning of clause (b)
prior to the words "the date" and (2) inserting the phrase "and receipt by the
Corporation (as defined in the Parent Company Agreement) of the proceeds
thereof" at the end of clause (b) prior to the period.
1.3 Section 3.1 is amended by deleting "Neither" at the beginning of
the third sentence thereof and inserting "No" in replacement therefor.
1.4 Section 3.2 is amended by (a) deleting "Neither" in the first
line thereof and inserting "No" in replacement therefor; (b) deleting "either"
in the second line thereof and inserting "any" in replacement therefor; and (c)
deleting "neither" in the sixth line thereof and inserting "no" in replacement
therefor.
1.5 Section 3.3 is amended by inserting the following sentence at
the end thereof:
"No Preferred Member shall be entitled to vote on the appointment of
Directors of the Company."
1.6 Section 3.5(b) is amended by deleting "Either Member" in the
first line thereof and inserting "Any Member (other than a Preferred Member)" in
replacement therefor.
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1.7 Section 3.7(b)(iv) is amended by deleting it in its entirety and
inserting the following in replacement therefor:
"(iv) Distributions and dividends (other than tax
distributions as set forth in Section 7.6(a)(i) and Section
7.6(c)(iv), distributions constituting Preferred Mandatory Payments
pursuant to Section 7.6(c) or repayment or redemption of the
Preferred Interests, and the distributions described in Section
3.2(c) of the Contribution Agreement) prior to the IPO."
1.8 Section 3.7(b) is amended by (a) deleting "either" in the second
line of clause (v)(E) thereof and inserting "any" in replacement therefor and
(b) deleting "either" in both places that it appears in clause (ix) thereof and
inserting "any" in replacement therefor in each case.
1.9 Section 4.2(b)(ii) is amended by deleting "either" in the sixth
line thereof and inserting "any" in replacement therefor.
1.10 Section 5.1 is amended by inserting the following sentence at
the end thereof:
"For the period from the date of the First Amendment until the
repayment or redemption of the Preferred Interests, Xxxxxxxx
Investment shall directly own and hold all of the Preferred Interest
acquired by it pursuant to its contribution to the Company pursuant
to the First Amendment and no other assets or liabilities, and DEFS
Investment shall directly own and hold all of the Preferred Interest
acquired by it pursuant to its contribution to the Company pursuant
to the First Amendment and no other assets or liabilities."
1.11 Section 5.2(a) is amended by (a) inserting "and DEFS
Investment's Preferred Interest (provided that both are purchased
simultaneously)" after the words "Company Interest" in clause (i) thereof; and
(b) inserting "and Xxxxxxxx Investment's Preferred Interest (provided that both
are purchased simultaneously)" after the words "Company Interest" in clause (ii)
thereof.
1.12 Section 5.2(b) is amended by (a) deleting "the other Member" in
the fourth line thereof and inserting "DEFS Holding or PGC, as applicable" in
replacement therefor; and (b) inserting "and DEFS Investment's Preferred
Interest (if DEFS Holding is the Changing Member) or Xxxxxxxx Investment's
Preferred Interest (if PGC is the Changing Member)" after the words "Changing
Member" in the eighth line thereof.
1.13 Section 5.2(c) is amended by (a) deleting "party" in the
twentieth line thereof and inserting "of the Changing Member or the Non-Changing
Member" in replacement therefor; (b) inserting "the Changing Member or the
Non-Changing" after the words "If either" in the thirty-first line thereof; and
(c) deleting "Members" in the thirty-fifth line thereof and inserting "the
Changing Member and the Non-Changing Member" in replacement therefor.
1.14 Section 5.2(d) is amended by (a) inserting "and DEFS
Investment's Preferred Interest (if DEFS Holding is the Changing Member) or
Xxxxxxxx Investment's Preferred Interest (if PGC is the Changing Member)" after
the words "Company Interest" in the second line thereof; and (b) inserting "and
DEFS Investment's Preferred Interest (if DEFS Holding is the Changing Member)
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or Xxxxxxxx Investment's Preferred Interest (if PGC is the Changing Member)"
after the words "Company Interest" in the tenth line thereof.
1.15 Section 6.1 is amended by deleting it in its entirety and
inserting the following in replacement therefor:
"Section 6.1 Capital Contributions. (a) The initial Capital
Contributions made to the Company by the Members shall be the
property contributed by the Members pursuant to Article II of the
Contribution Agreement.
(b) On the date of the First Amendment, (i) DEFS
Investment made a Capital Contribution to the Company in the amount
of $209,100,000, (ii) Xxxxxxxx Investment made a Capital
Contribution to the Company in the amount of $90,900,000 and (iii)
each of DEFS Investment and Xxxxxxxx Investment was admitted to the
Company as a Preferred Member."
1.16 Section 6.3 is amended by (a) inserting "(other than the
Preferred Members)" after the word "Members" in the third line thereof and (b)
inserting the following sentence after the second sentence thereof: "The initial
Capital Account of the Preferred Members shall be, in the case of DEFS
Investment, $209,100,000 and, in the case of Xxxxxxxx Investment, $90,900,000."
1.17 Section 6.4 is amended by deleting it in its entirety and
inserting the following in replacement therefor:
"Section 6.4 Return of Contributions. (a) Although a Member
has the right to receive Distributions in accordance with the terms
of this Agreement, except as provided in Section 6.4(b) and Section
7.6(c), a Member is not entitled to the return of any part of its
Capital Contributions or to be paid interest in respect of either
its Capital Account or its Capital Contributions. An unrepaid
Capital Contribution is not a liability of the Company or of any
Member. No Member will be required to contribute or to lend any cash
or property to the Company to enable the Company to return any
Member's Capital Contributions.
(b) Each Member that holds a Preferred Interest shall be
entitled to a mandatory Distribution in cash equal to the positive
balance of its Capital Account after all allocations have been made
to such Capital Account pursuant to this Agreement, in full
repayment and redemption of its Preferred Interest, on the earlier
of (i) the thirtieth anniversary of the date of the First Amendment
and (ii) one Business Day following the date of consummation of the
IPO and receipt by the Corporation (as defined in the Parent Company
Agreement) of the proceeds thereof (the "Preferred Mandatory
Redemption Date")."
1.18 Section 7.1 is amended by deleting clause (b) in its entirety
and inserting the following in replacement therefor:
"(b) Profits and Losses. Commencing on the Closing Date,
Profits and Losses shall be allocated among the Members (other than
the Preferred Members) in accordance with their respective
Percentage Interests in the Company;
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provided, however, that the Company shall make special allocations
to the Members (other than the Preferred Members) to the extent
required pursuant to Article V of Annex A to the Contribution
Agreement.
(c) Allocations to Preferred Members. For each Fiscal
Year or portion thereof (each, an "Accounting Period") during the
period from the date of the First Amendment until the repayment or
redemption of the Preferred Interests (including any Extension
Period) (the "Preferred Term"), prior to any allocation pursuant to
Section 7.1(b), (i) items of gross income (limited, except in the
case of the Accounting Period ending on the Preferred Mandatory
Redemption Date (the "Final Period"), to the sum of the Cash
Earnings Limitations for the Preferred Payment Dates included in
such Accounting Period) shall be allocated to the Preferred Members
in accordance with their respective Percentage Interests until the
cumulative amount allocated to the Preferred Members pursuant to
this Section 7.1(c)(i) equals the cumulative amount of losses
allocated to the Preferred Members pursuant to Section 7.2(a) and
then (ii) items of gross income (limited, except in the case of the
Final Period, to the sum of the Cash Earnings Limitations for the
Preferred Payment Dates included in such Accounting Period, less the
allocations made pursuant to Section 7.1(c)(i) for such Accounting
Period) shall be allocated to the Preferred Members in accordance
with their respective Percentage Interests, until the cumulative
amount so allocated to the Preferred Members pursuant to this
Section 7.1(c)(ii) for the current Fiscal Year and all prior Fiscal
Years or portions thereof during the Preferred Term equals the
cumulative amounts of Preferred Mandatory Payments distributed or
distributable (including any and all Amounts Past Due) to the
Preferred Members pursuant to Section 7.6(c) for the current Fiscal
Year and all prior Fiscal Years or portions thereof during the
Preferred Term."
1.19 Section 7.2(a) is amended by inserting "(other than the
Preferred Members unless all other Members have Adjusted Capital Account
Deficits)" after the word "Members" in the eighth line thereof.
1.20 Section 7.2(e) is amended by inserting "(other than the
Preferred Members)" after the word "Members" in the second line thereof.
1.21 Section 7.6(a) is amended by (a) deleting "Except" in the first
sentence thereof and inserting "Subject to Section 7.6(c) below and except" in
replacement therefor; (b) inserting "(other than the Preferred Members)" after
the words "Member of the Company" in the fourth and fifth lines thereof; and (c)
inserting "that is (or are) not a Preferred Member" after the parenthetical "(or
Members)" in clause (i)(B)(y) thereof.
1.22 Section 7.6(b) is amended by (a) inserting "to the Preferred
Members in proportion to the positive balances of each of their respective
Capital Accounts after all allocations have been made to such Capital Accounts
pursuant to this Agreement, until the remaining balances of such Capital
Accounts are zero; (iv) fourth," after the word "third," in the ninth line
thereof; (b) inserting "(other than the Preferred Members)" after the word
"Members" in the ninth line thereof; (c) deleting "(iv) fourth" in the twelfth
line thereof and inserting "(v) fifth" in replacement
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therefor; and (d) inserting "(other than the Preferred Members)" after the word
"Members" in the twelfth line thereof.
1.23 Section 7.6 is amended by inserting the following at the end
thereof:
"(c) Preferred Mandatory Payments. (i) Unless the Company has
elected to defer such payment as provided in Section 7.6(c)(iii),
each Member that holds a Preferred Interest shall be entitled on
each Preferred Payment Date to a mandatory Distribution in cash (a
"Preferred Mandatory Payment") equal to the sum of (A) 9.5% per
annum (the "Preferred Distribution Rate") of the Preferred
Contribution of such Member and (B) if any Preferred Mandatory
Payments payable to such Member are not paid in full on the date
they are due (or would be due but for (1) the Cash Earnings
Limitation set forth in the last sentence of this Section 7.6(c)(i)
or (2) a deferral of Preferred Mandatory Payments pursuant to
Section 7.6(c)(iii)) (such unpaid amounts, together with any
accruals thereon pursuant to this Section 7.6(c)(i)(B), the "Amounts
Past Due"), the Preferred Distribution Rate (plus 0.5% per annum) of
the Amounts Past Due, compounded semi-annually (to the extent
permitted by Law). If the Company has insufficient positive Cash
Earnings to pay an entire Preferred Mandatory Payment, Amounts Past
Due required to be paid pursuant to this Section 7.6(c)(i) shall
have preference over and be paid before other amounts required to be
paid pursuant to this Section 7.6(c)(i) (other than any Preferred
Tax Amount). Except as set forth in Section 7.6(c)(iv), a Preferred
Mandatory Payment is payable out of positive Cash Earnings for the
semi-annual period preceding the relevant Preferred Payment Date
(the "Cash Earnings Limitation"), but any unpaid amount shall be
considered an "Amount Past Due" in accordance with clause (B) of the
preceding sentence and shall be due and payable on the next
Preferred Payment Date (subject to the Cash Earnings Limitation for
such date).
(ii) Preferred Mandatory Payments on the Preferred
Interest of a Member (A) will be cumulative; (B) will
accumulate from the most recent date on which the entire
accrued and unpaid Preferred Mandatory Payments have been paid
or, if no Preferred Mandatory Payments have been paid, from
and including the date of the First Amendment, to but
excluding the earliest of (1) the related Preferred Payment
Date, (2) the date of repayment or redemption of the Preferred
Interest and (3) August 15, 2030; and (C) will be payable
semi-annually in arrears on June 30 and December 31 of each
year, commencing on December 31, 2000, except to the extent
any such payment is deferred as described below, and on the
Preferred Mandatory Redemption Date; and (D) will be paid
prior to the Company making any Distribution pursuant to
Section 7.6(a)(ii). The amount of any Preferred Mandatory
Payment payable for any period will be computed on the basis
of a 360-day year consisting of twelve 30-day months and for
any period of less than a full calendar month on the basis of
the actual number of days elapsed in such month. If any date
on which Preferred Mandatory Payments are payable is not a
Business Day, then payment of the amount payable on such date
shall be made on the next succeeding day that is a Business
Day (and without any
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interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally
payable (each date on which a Preferred Mandatory Payment is
payable (or would be payable but for (1) the Cash Earnings
Limitation set forth in the last sentence of Section 7.6(c)(i)
or (2) a deferral pursuant to Section 7.6(c)(iii)) in
accordance with the foregoing, a "Preferred Payment Date").
(iii) The Company shall have the right to defer the
payment of Preferred Mandatory Payments (other than the
Preferred Tax Amount) by extending the payment period at any
time and from time to time for a period (each an "Extension
Period") not exceeding 10 consecutive semi-annual periods,
including the first such semi-annual period during such
Extension Period; provided, however, that no Extension Period
shall extend beyond the Preferred Mandatory Redemption Date.
Preferred Mandatory Payments (other than the Preferred Tax
Amount) will be deferred during any Extension Period.
Notwithstanding such deferral, during any Extension Period,
Preferred Mandatory Payments in arrears shall continue to
accumulate additional amounts thereon (to the extent permitted
by Law), as provided in Section 7.6(c)(i). Prior to the
expiration of any Extension Period, the Company may further
defer payments by further extending such Extension Period;
provided, however, that such Extension Period, together with
all previous and further extensions, if any, within such
Extension Period, may not (A) exceed 10 consecutive
semi-annual periods, including the first semi-annual period
during such Extension Period, or (B) extend beyond the
Preferred Mandatory Redemption Date. Upon the expiration of
any Extension Period (or any extension thereof) and the
payment of all amounts then due, the Company may commence a
new Extension Period, subject to the above requirements. There
is no limitation on the number of times that the Company may
elect to begin an Extension Period; provided, however, that
during any such Extension Period, no Distributions (other than
tax distributions as set forth in Section 7.6(a)(i) and
Section 7.6(c)(iv)) may be made to any Member.
(iv) On each Preferred Payment Date during any Extension
Period (and on each Preferred Payment Date on which the
limitations set forth in the last sentence of Section
7.6(c)(i) would otherwise apply), the Company shall distribute
to each Preferred Member a portion of the Preferred Mandatory
Payment that otherwise would be due and payable on such date
(the "Preferred Tax Amount") equal to the greater of (A) the
product of (I) the sum of the maximum United States regular
Federal income tax rate applicable to C corporations under
Section 11 of the Code and 4.5 percent and (II) the excess, if
any, of taxable income and gain over taxable loss or deduction
of the Company allocated to such Preferred Member with respect
to such period and (B) (x) such Preferred Member's Percentage
Interest in the Company multiplied by the quotient of (y) the
amount calculated under
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clause (A) with respect to such period for the other Preferred
Member (or Preferred Members) (the "Other Preferred Member")
divided by (z) the Other Preferred Member's Percentage
Interest in the Company. Such Distributions shall be made in a
manner consistent with the estimated annual tax items of the
Company, and Distributions pursuant to this clause (iv) for
each semi-annual accounting period (or portion thereof) shall
be adjusted to the extent Distributions for prior semi-annual
accounting periods did not correctly estimate such items.
(v) Preferred Mandatory Payments will be payable to the
holders of the Preferred Interests as they appear on the books
and records of the Company on the record dates, which shall be
the Business Day prior to the relevant Preferred Payment Date.
Payments of Preferred Mandatory Payments that have accumulated
but not been paid during any Extension Period will be payable
to the holders of the Preferred Interests as they appear on
the books and records of the Company on the record date for
the first scheduled Preferred Payment Date following the
expiration of such Extension Period and prior to the
commencement of any new Extension Period."
1.24 Section 8.2(b) is amended by (a) inserting "(and any other
Company indebtedness)" after the word "Financing" in clause (iii) thereof and
inserting "(other than the Preferred Members)" after the word "Members" in
clause (iii) thereof, (b) inserting "(other than the Preferred Members)" in
clause (v) thereof after the words "Duke, Phillips, the Members", (c) deleting
the word "and" prior to clause (vi) and (d) inserting at the end thereof "; and
(vii) the allocation under Regulation Section 1.752-3(a)(3) of no Company
liabilities to any of the Preferred Members" prior to the period.
1.25 Section 8.3(c) is amended by inserting "(other than a Preferred
Member)" after the word "Member".
1.26 Section 10.4 is amended by inserting (a) "or Xxxxxxxx
Investment" after the words "If to PGC" in clause (a) thereof and (b) "or DEFS
Investment" after the words "If to DEFS Holding" in clause (b) thereof.
1.27 Section 10.5 is amended by inserting "(other than the Preferred
Members)" at the end thereof prior to the period.
1.28 Section 10.7 is amended by (a) inserting "(other than the
Preferred Members, except that Sections 1.1, 6.1(b), 6.3, 6.4(b), 7.1(c),
7.6(b)(iii), 7.6(c) and 8.2(b)(viii), as they relate to the Preferred Members or
the Preferred Interests, may not be amended without the additional prior written
consent of each of Duke (so long as Duke is the Parent of either DEFS Holding or
DEFS Investment) and Xxxxxxxx (so long as Xxxxxxxx is the Parent of either PGC
or Xxxxxxxx Investment))" after the word "Members" in the second line thereof;
(b) inserting ", Section 6.4(b)" after the words "Section 6.3" in the fourth
line thereof; and (c) deleting "Either" in the tenth line thereof and inserting
"Any" in replacement therefor.
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1.29 Section 10.9 is amended by deleting "either" in the fourth line
thereof and inserting "any" in replacement therefor.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES. Each of PGC and Xxxxxxxx
Investment hereby represents to DEFS Investment and DEFS Holding, and each of
DEFS Investment and DEFS Holding hereby represents and warrants to PGC and
Xxxxxxxx Investment, that (a) it has full corporate power and authority to
execute and deliver this Amendment, (b) the execution and delivery of this
Amendment have been duly and validly approved by all corporate action on its
part, and (c) this Amendment has been duly and validly executed and delivered by
it and, assuming due authorization, execution and delivery by the other parties,
constitutes a valid and binding obligation of it, enforceable against it in
accordance with its terms.
ARTICLE III
MISCELLANEOUS
3.1 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered (including by facsimile) to the other party.
3.2 GOVERNING LAW. (a) This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware without reference
to the choice of law principles thereof.
(b) Each party hereto irrevocably submits to the jurisdiction
of any Delaware state court or any federal court sitting in the State of
Delaware in any action arising out of or relating to this Amendment, and hereby
irrevocably agrees that all claims in respect of such action may be heard and
determined in such Delaware state or federal court. Each party hereto hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding. The
parties hereto further agree, to the extent permitted by law, that final and
unappealable judgment against any of them in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and amount of
such judgment.
(c) To the extent that any party hereto has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, each party hereto hereby irrevocably waives such immunity in respect
of its obligations with respect to this Amendment.
(d) Each party hereto waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect of any
action, suit or proceeding arising out of or relating to this Amendment. Each
party hereto certifies that it has been induced to enter into
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this Amendment by, among other things, the mutual waivers and certifications set
forth above in this Section 3.2.
3.3 ENTIRE AGREEMENT. This Amendment and the LLC Agreement contain
the entire agreement between the parties with respect to the subject matter
hereof and there are no agreements, understandings, representations or
warranties between the parties other than those set forth or referred to herein.
This Amendment is not intended to confer upon any person not a party hereto any
rights or remedies hereunder, except that amendments to Sections 6.3 and
Articles VII and VIII of the LLC Agreement are for the benefit of Xxxxxxxx and
Xxxx to the extent such provisions may not be amended without the consent of
Xxxxxxxx and Duke as provided in Section 10.7 of the LLC Agreement and Section
4.1 of the Parent Company Agreement.
3.4 NOTICES. The provisions of Section 10.4 of the LLC Agreement (as
amended by this Amendment) are hereby incorporated herein.
3.5 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto (and Xxxxxxxx and Xxxx to the extent
provided in Section 3.3) and their respective successors and permitted assigns;
provided, however, that no party hereto will assign its rights or delegate any
or all of its obligations under this Amendment without the express prior written
consent of each other Member.
3.6 AMENDMENTS AND WAIVERS. This Amendment may not be modified or
amended except by an instrument or instruments in writing signed by all parties
hereto (other than the Preferred Members, except that Sections 1.1, 6.1(b), 6.3,
6.4(b), 7.1(c), 7.6(b)(iii), 7.6(c) and 8.2(b)(viii), as they relate to the
Preferred Members or the Preferred Interests, may not be amended without the
additional prior written consent of each of Duke (so long as Duke is the Parent
of either DEFS Holding or DEFS Investment) and Xxxxxxxx (so long as Xxxxxxxx is
the Parent of either PGC or Xxxxxxxx Investment)). In addition to the foregoing,
without the prior written consent of each of Xxxxxxxx and Duke: (a) no further
amendment shall be made to Section 6.3, Section 6.4(b), Article VII or Article
VIII (other than Section 8.2(b)) of the LLC Agreement, or any reference thereto
in the LLC Agreement or any defined term used therein, prior to the second
anniversary of the Closing Date, and any further amendment made after such
second anniversary to any such provision shall not apply to any taxable period,
or portion thereof, ending on or before the second anniversary of the Closing
Date, and (b) no further amendment shall be made to Section 8.2(b) of the LLC
Agreement or any reference thereto in the LLC Agreement or any defined term used
therein. Any party hereto may, only by an instrument in writing, waive
compliance by the other parties hereto with any term or provision of this
Amendment on the part of another party hereto to be performed or complied with.
The waiver by any party hereto of a breach of any term or provision of this
Amendment shall not be construed as a waiver of any subsequent breach. Except as
otherwise expressly provided herein, no failure to exercise, delay in exercising
or single or partial exercise of any right, power or remedy by any party, and no
course of dealing between the parties, shall constitute a waiver of any such
right, power or remedy.
3.7 SEVERABILITY. If any provision of this Amendment shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions of this Amendment shall not be affected thereby, and there
shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
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3.8 HEADINGS; DEFINITIONS. The Section and Article headings
contained in this Amendment are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Amendment. All capitalized
terms defined herein are equally applicable to both the singular and plural
forms of such terms.
3.9 INTERPRETATION. In the event an ambiguity or question of intent
or interpretation arises with respect to this Amendment, this Amendment shall be
construed as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Amendment. The phrase "including" shall be deemed to
be followed by "without limitation."
3.10 RATIFICATION. Except as amended hereby, the LLC Agreement shall
remain in full force and effect as previously executed, and the Members hereby
ratify the LLC Agreement as amended hereby. Each of Xxxxxxxx Investment and DEFS
Investment agrees to be bound by the terms of the LLC Agreement as amended
hereby as if it were an original signatory thereto.
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IN WITNESS WHEREOF, each of the undersigned, intending to be legally
bound, has caused this Amendment to be duly executed and delivered on the date
first set forth above.
XXXXXXXX GAS COMPANY
By: /s/ X.X. XXXXXX
-----------------------------------
Name: X.X. Xxxxxx
---------------------------------
Title: Vice President and Assistant
Treasurer
--------------------------------
DUKE ENERGY FIELD SERVICES
CORPORATION
By: /s/ XXX X. XXXX
-----------------------------------
Name: Xxx X. Xxxx
---------------------------------
Title: Chairman of the Board,
President and Chief Executive
Officer
--------------------------------
XXXXXXXX GAS INVESTMENT COMPANY
By: /s/ X.X. XXXXXX
-----------------------------------
Name: X.X. Xxxxxx
---------------------------------
Title: Vice President and
Assistant Treasurer
--------------------------------
DUKE ENERGY FIELD SERVICES
INVESTMENT CORP.
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: President
--------------------------------
Each of the undersigned hereby
consents to this Amendment:
DUKE ENERGY CORPORATION
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Senior Vice President and Treasurer
------------------------------------
XXXXXXXX PETROLEUM COMPANY
By: /s/ X.X. XXXXXX
---------------------------------------
Name: X.X. Xxxxxx
-------------------------------------
Title: Assistant Treasurer
------------------------------------
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