Contract
Execution Version FOURTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF PAA GP HOLDINGS LLC effective as of August 19, 2021 Exhibit 3.11
1 FOURTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF PAA GP HOLDINGS LLC THIS FOURTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of PAA GP Holdings LLC, a Delaware limited liability company (the “Company”), is made and entered into this 25th day of February, 2022 to be effective for all purposes as of August 19, 2021 by the Company and is binding on those Persons that are currently, or that may hereafter become, members of the Company (such Persons referred to collectively as the “Members” or, individually, as a “Member”). WHEREAS, the Company was formed on July 17, 2013 as a limited liability company under the Act (as defined below) by the filing of a certificate of formation of the Company with the Delaware Secretary of State; and WHEREAS, the Board adopted the Third Amended and Restated Limited Liability Company Agreement of PAA GP Holdings LLC on February 16, 2017 (the “Third A&R LLC Agreement”); and WHEREAS, the Board adopted amendments to the Third A&R LLC Agreement on October 1, 2018, December 10, 2018, November 21, 2019 (effective January 1, 2020), February 25, 2021 and August 19, 2021 (collectively, the “Amendments”); and WHEREAS, the Board has authorized the Company to amend and restate the Third A&R LLC Agreement in its entirety to reflect and consolidate the Amendments and has approved this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the parties agree as follows: ARTICLE I DEFINITIONS As used herein, the following terms shall have the following meanings, unless the context otherwise requires: “AAP” means Plains AAP, L.P., a Delaware limited partnership. “AAP Class A Units” means the Class A Units of AAP, having the rights and obligations specified in the AAP Partnership Agreement. “AAP Class B Units” means the Class B Units of AAP, having the rights and obligations specified in the AAP Partnership Agreement. “AAP Partnership Agreement” means the Eighth Amended and Restated Limited Partnership Agreement, dated as of November 15, 2016, as such may be further amended, modified, supplemented or restated from time to time in accordance with the terms thereof.
2 “AAP Redemption” means a redemption in accordance with Section 7.11 of the AAP Partnership Agreement. “Act” means the Delaware Limited Liability Company Act, 6 Del. C. Section 18-101, et seq., as amended from time to time. “Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person. As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise; provided that the determination as to whether a Person, directly or indirectly through one or more intermediaries, controls, is controlled by or under common control with another Person shall be made taking into account, at the time of such determination, the context and circumstances surrounding such determination, including any known agreements or understandings that may impact such Person’s possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such other Person. For purposes of the foregoing: (a) any individual who is an officer or director of the Company or any Group Member (excluding the Chief Executive Officer and Chairman of the Board) shall not be considered to be an Affiliate of the Company or any Group Member by virtue of such Person’s status as an officer or director and the possession of the powers that are within the scope of the designated or delegated authority of such officer or director; (b) any Person that, alone or together with any Affiliate Group of which such Person is a part, owns less than 50% of the total number of outstanding Company Units shall not be considered to be an Affiliate of the Company or any Group Member by virtue of the ownership by such Person (and Affiliate Group, if applicable) of such Company Units; and (c) any Person that, alone or together with any Affiliate Group of which such Person is a part, owns less than 50% of the total “Partnership Interests” (as such term is defined in the AAP Partnership Agreement) held by all partners of AAP, shall not be considered to be an Affiliate of the Company or any Group Member by virtue of the ownership by such Person (and Affiliate Group, if applicable) of such interests. For the avoidance of doubt, for purposes of this Agreement, as of the date hereof (but subject to redetermination upon changed circumstances) (i) each of KAFU Holdings, L.P., KAFU Holdings (QP), L.P., Xxxxx Xxxxxxxx MLP Investment Company, Xxxxx Xxxxxxxx Energy Development Company, Xxxxx Xxxxxxxx Midstream/Energy Fund, Inc. and KAFU Holdings II, L.P. is an Affiliate of each other, and (ii) each of EMG Investment, LLC and Lynx Holdings I, LLC is an Affiliate of the other. “Affiliate Group” means a Person that with or through any of its Affiliates has any agreement, arrangement, understanding or relationship for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent given to such Person in response to a proxy or consent solicitation made to 10 or more Persons), exercising investment power or disposing of any Company Units or “Partnership Interests” (as that term is defined in the AAP
3 Partnership Agreement) with any other Person that beneficially owns, or whose Affiliates beneficially own, directly or indirectly, Company Units. “Agreement” has the meaning set forth in the preamble hereof, as such may be amended, supplemented or restated from time to time. “Amendments” has the meaning set forth in the recitals hereof. “Audit Committee” has the meaning set forth in Section 6.6(c). “Authorized Representative” has the meaning set forth in Section 5.3. “Board” means the Board of Directors of the Company. “Business Day” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the States of New York or Texas shall not be regarded as a Business Day. “Cause” means (i) with respect to any Director, gross misconduct or neglect, false or fraudulent misrepresentation regarding such director’s qualifications or credentials, unauthorized disclosure of material confidential information concerning the Company and its Subsidiaries, conversion of corporate funds, acts involving moral turpitude, material violation of any code of conduct adopted by the Company or PAGP or similar acts detrimental to the Company or (ii) with respect to any Independent Director, the occurrence of an event or a change in circumstances that causes such Independent Director to fail to satisfy the applicable “bright-line” independence requirements (i.e., those resulting in automatic disqualification) of the Commission and any National Securities Exchange on which the PAGP Class A Shares or MLP Common Units are listed or admitted for trading, provided that such failure results in the Company ceasing to have the minimum number of Independent Directors required under applicable rules, laws or restrictions of the Commission and any National Securities Exchange on which the PAGP Class A Shares or MLP Common Units are listed or admitted for trading. “Certificate” means the Certificate of Formation of the Company filed with the Secretary of State of Delaware, as amended or restated from time to time. “Class” has the meaning set forth in Section 6.2(a). “Code” means the United States Internal Revenue Code of 1986, as amended. “Commission” means the United States Securities and Exchange Commission. “Company” has the meaning set forth in the preamble hereof. “Company Group” means the Company and its Subsidiaries treated as a single consolidated entity, but excluding the MLP and its Subsidiaries. “Company Unit” means a fractional part of the Membership Interest having the rights and preferences specified with respect to the Membership Interest.
4 “Competitor” has the meaning set forth in Section 6.1(b). “Conflicts Committee” has the meaning set forth in Section 6.6(b). “Designation Right Termination Event” has the meaning set forth in Section 6.1(d). “Directors” has the meaning set forth in Section 6.1(a). “Eligible Directors” means any Director who is not a Series A Designated Director. “EMG” shall have the meaning set forth in Section 11.1. “Employees” has the meaning set forth in Section 11.2. “Encumbrance” means any security interest, pledge, mortgage, lien (including, without limitation, environmental and tax liens), charge, encumbrance, adverse claim, any defect or imperfection in title, preferential arrangement or restriction, right to purchase, right of first refusal or other burden or encumbrance of any kind, other than those imposed by this Agreement. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. “Existing Owners” means the Original Members listed on Schedule 1 attached hereto, excluding PAGP. “Group Member” means a member of the Company Group. “Indemnitee” means (a) any Existing Owner, (b) any Person who is or was an Affiliate of the Company or any Existing Owner, (c) any Person who is or was a managing member, manager, general partner, shareholder, director, officer, fiduciary, agent or trustee of the Company, any Existing Owner or any Affiliate of the Company or any Existing Owner, (d) any Person who is or was serving at the request of the Company, any Existing Owner or any Affiliate of the Company or any Existing Owner as a member, manager, partner, director, officer, fiduciary, agent or trustee of another Person in furtherance of the business or affairs of any Group Member; provided, that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, and (e) any Person the Board designates as an “Indemnitee” for purposes of this Agreement. “Independent Director” means a Director who meets the independence requirements of the National Securities Exchange on which PAGP Class A Shares or MLP Common Units are listed or admitted for trading. “Initial Offering” means the initial offering and sale of the PAGP Class A Shares to the public, as described in the Registration Statement. “Institutional Investments” has the meaning set forth in Section 11.1. “Xxxxx Xxxxxxxx” has the meaning set forth in Section 11.1.
5 “Lead Director” has the meaning set forth in Section 6.1(a). “Majority in Interest” means, with respect to the Members, Members owning more than fifty percent (50%) of the outstanding Company Units. “Member” or “Members” has the meaning set forth in the preamble hereof. “Membership Interest” means a Member’s limited liability company interest in the Company which refers to all of a Member’s rights and interests in the Company in such Member’s capacity as a Member, all as provided in this Agreement and the Act. “Membership Transfer” has the meaning set forth in Section 8.1(a). “MLP” means Plains All American Pipeline, L.P., a Delaware limited partnership. “MLP Common Units” has the meaning given to “Common Units” in the MLP Partnership Agreement. “MLP Partnership Agreement” means the Seventh Amended and Restated Agreement of Limited Partnership of Plains All American Pipeline, L.P., dated as of October 10, 2017, as such may be further amended, modified, supplemented or restated from time to time in accordance with the terms thereof. “MLP Redemption Units” means MLP Common Units received by a Member upon an AAP Redemption. “National Securities Exchange” means an exchange registered with the Commission under Section 6(a) of the Securities Exchange Act or any successor to such statute. “Non-Management Directors” means the Independent Directors and any Director who is not currently serving as an Officer of the Company or of Plains All American GP LLC. “Notice” means a writing, containing the information required by this Agreement to be communicated to a party, and shall be deemed to have been received (a) when personally delivered or sent by facsimile, (b) one day following delivery by overnight delivery courier, with all delivery charges pre-paid, or (c) on the third Business Day following the date on which it was sent by United States mail, postage prepaid, to such party at the address or fax number, as the case may be, of such party as shown on the records of the Company. “Officers” has the meaning set forth in Section 6.9. “Original Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company, dated as of October 21, 2013. “Original Members” means each of the owners of limited liability company interests in the Company as of the date of the Original Agreement as set forth in Schedule 1 attached hereto.
6 “PAA GP LLC Agreement” means the Seventh Amended and Restated Limited Liability Company Agreement of Plains All American GP LLC, dated as of November 15, 2016, as such may be further amended, modified, supplemented or restated from time to time in accordance with the terms thereof. “PAGP” means Plains GP Holdings, L.P., a Delaware limited partnership. “PAGP Class A Shares” means the Class A shares in PAGP, having the rights and obligations specified in the PAGP Partnership Agreement. “PAGP Class B Shares” means the Class B shares in PAGP, having the rights and obligations specified in the PAGP Partnership Agreement. “PAGP Class C Shares” means the Class C shares in PAGP, having the rights and obligations specified in the PAGP Partnership Agreement. “PAGP Limited Partners” means the Limited Partners of PAGP as such term is given meaning in the PAGP Partnership Agreement. “PAGP Partnership Agreement” means the Second Amended and Restated Agreement of Limited Partnership of PAGP, dated as of November 15, 2016, as such may be further amended, modified, supplemented or restated from time to time in accordance with the terms thereof. “PAGP Reverse Stock Split” has the meaning set forth in that certain Simplification Agreement, dated as of July 11, 2016, by and among the Company, PAGP, AAP, the MLP, PAA GP LLC and Plains All American GP LLC. “Permitted Transfer” has the meaning set forth in Section 8.1(a). “Permitted Transferee” means any Person who shall have acquired and who shall hold a Company Unit pursuant to a Permitted Transfer. “Person” means any individual, partnership, corporation, limited liability company, trust, incorporated or unincorporated organization or other legal entity of any kind. “Property” means all assets, real or intangible, that the Company may own or otherwise have an interest in from time to time. “Registration Statement” means the Registration Statement on Form S-1 (Registration No. 333-190227) as it has been or as it may be amended or supplemented from time to time, filed by PAGP with the Commission under the Securities Act to register the offering and sale of the PAGP Class A Shares in the Initial Offering. “Representatives” has the meaning set forth in Section 10.4. “Second A&R LLC Agreement” has the meaning set forth in the preamble hereof.
7 “Securities Act” means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute. “Series A Designated Director” has the meaning set forth in Section 6.1(b). “Subsidiary” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general partner of such partnership, but only if such Person, directly or by one or more Subsidiaries of such Person, or a combination thereof, controls such partnership on the date of determination or (c) any other Person in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person. “Third A&R LLC Agreement” has the meaning set forth in the recitals hereof. “Transfer” or “Transferred” means to give, sell, exchange, assign, transfer, pledge, hypothecate, bequeath, devise or otherwise dispose of or encumber, voluntarily or involuntarily, by operation of law or otherwise. When referring to a Company Unit, “Transfer” shall mean the Transfer of such Company Unit whether of record, beneficially, by participation or otherwise. ARTICLE II GENERAL 2.1 Formation. The name of the Company is PAA GP Holdings LLC. The rights and liabilities of the Members shall be as provided in the Act for Members except as provided herein. To the extent that the rights or obligations of any Member are different by reason of any provision of this Agreement than they would be under applicable law in the absence of such provision, to the extent permitted by the Act, this Agreement shall control. 2.2 Principal Office. The principal office of the Company shall be located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 or at such other place(s) as the Board may determine from time to time. 2.3 Registered Office and Registered Agent. The location of the registered office and the name of the registered agent of the Company in the State of Delaware shall be as stated in the Certificate or as determined from time to time by the Board. 2.4 Purpose of the Company. The Company’s purposes, and the nature of the business to be conducted and promoted by the Company, are (a) to act as the general partner of PAGP in accordance with the terms of the PAGP Partnership Agreement and (b) to engage in any and all activities necessary, advisable, convenient or incidental to the foregoing.
11 (i) Subject to Section 6.2, the Chief Executive Officer of the Company shall be a Director. Unless otherwise required pursuant to the Exchange Act and the rules and regulations of the Commission thereunder and by the principal National Securities Exchange on which the PAGP Class A Shares or MLP Common Units are listed, the Board shall include at least a majority of Independent Directors; provided, however, that if at any time there shall be fewer than the required number of Independent Directors, the Board shall take such actions as may be necessary to cause the Board to re-establish the required number of Independent Directors; provided, further, that if at any time there shall be fewer than two Independent Directors qualified to serve on the Conflicts Committee of Plains All American GP LLC, the Board may take such actions as may be necessary to cause the Board to have at least two Independent Directors qualified to serve on such Conflicts Committee of Plains All American GP LLC. In connection therewith, the Board may exercise its Director removal and appointment rights hereunder and may, to the extent required, increase the size of the Board and appoint one or more new Independent Directors to fill the resulting vacancies. Each Director shall hold office until his or her successor is elected pursuant to this Article VI or until his or her earlier death, resignation or removal. (ii) In the event of the death, resignation or removal of a Director or any vacancy relating to a Director, including a vacancy that arises by virtue of the expiration of the term of a Director, a majority of the remaining Directors may designate a replacement Director. In the event a Director serving as an Officer of the Company no longer holds such office for any reason, such individual shall be automatically removed as a Director and (i) in the case of the Chief Executive Officer, the successor to such individual as Chief Executive Officer of the Company shall, by virtue of such appointment, be designated to replace such individual as a Director, and (ii) in the case of any other Officer, the Board shall fill the vacancy by a majority vote of the remaining Directors (it being understood that such former Officer shall be eligible for re-appointment to the Board by such majority vote). In the event of the death, resignation or removal of a Director serving as Chairman of the Board or Lead Director (or the expiration of such Director’s term without reappointment), the Board shall designate a new Chairman and the Non- Management Directors shall designate a new Lead Director, who may or may not be the same individual designated to fill the Board vacancy resulting from such death, resignation or removal. (b) If a Series A Trigger Event (as such term is defined in the MLP Partnership Agreement) occurs, then the Series A Preferred Unitholders (as such term is defined in the MLP Partnership Agreement) shall have the right, upon written notice, to appoint one representative to the Board, as set forth in the MLP Partnership Agreement, but such right shall be subject to the terms set forth in this Agreement. The Board representative identified in the notice delivered by the Series A Preferred Unitholders shall be referred to herein as the “Series A Designated Director.” The Series A Designated Director must, in the reasonable judgment of the Board, (i) have the requisite skill and experience to serve as a director of a public company in the energy sector, (ii) not be prohibited from serving as a director pursuant to any rule or regulation of the Commission or the National Securities
12 Exchange on which the PAGP Class A Shares or MLP Common Units are listed or admitted to trading, and (iii) not be an employee or a director of any Competitor (as defined below); provided, that an individual employed by a financial institution, fund or investment vehicle, who serves as a director of a portfolio company of such institution, which portfolio company is a Competitor, shall not be excluded from serving as a Series A Designated Director solely by virtue of such role as a director of such portfolio company. For purposes of the immediately preceding sentence the term “Competitor” shall mean any entity that (a) is an operating company (and not a financial institution) and (b) competes with the MLP in the transportation, storage, terminaling or marketing of crude oil or natural gas liquids in the United States or Canada. If the Series A Preferred Unitholders exercise their right to appoint a Series A Designated Director, such Series A Designated Director shall be a member of the Board until such Series A Designated Director is removed pursuant to Section 6.1(c) or Section 6.1(d). Any Series A Designated Director shall have all the rights and duties of a Director otherwise serving hereunder. (c) Prior to a Designation Right Termination Event (as defined below), the Series A Designated Director may be removed or replaced by the Series A Purchasers (as defined in the MLP Partnership Agreement) at any time for any reason or by majority vote of the other Directors for “cause” (as defined below); and any vacancy occurring by reason of the death, disability, resignation, removal or other cessation of a person serving as a Series A Designated Director shall be filled by a vote of the Series A Preferred Unitholders holding a majority of the then outstanding Series A Preferred Units and the subsequent delivery of written notice to the Company. As used herein, “cause” means that the Series A Designated Director (i) is prohibited from serving as a director under any rule or regulation of the Commission or the National Securities Exchange on which the PAGP Class A Shares or MLP Common Units are listed; (ii) while serving as the Series A Designated Director, is convicted by a court of competent jurisdiction of a felony; (iii) a court of competent jurisdiction has entered a final, non-appealable judgment finding the Series A Designated Director liable for actual fraud or willful misconduct against PAGP or the MLP (including, but not limited to, intentionally or willfully failing to observe any obligations of confidentiality to PAGP or the MLP); (iv) is determined to have acted intentionally or in bad faith in a manner that results in a material detriment to the assets, business or prospects of PAGP or the MLP; or (v) is terminated, removed or resigns for any reason from his or her position, if any, with any such Series A Preferred Unitholder at which the Series A Designated Director was employed at the time of his or her appointment as the Series A Designated Director. Any action by the Series A Preferred Unitholders to designate, remove or replace a Series A Designated Director shall be evidenced in writing furnished to the Company, shall include a statement that the action has been approved by a vote of the Series A Preferred Unitholders holding a majority of the then outstanding Series A Preferred Units and shall be executed by or on behalf of the Series A Unitholders. (d) Upon payment by the MLP to the Series A Preferred Unitholders of all accrued but unpaid distributions on the Series A Preferred Units then outstanding following a Series A Trigger Event (a “Designation Right Termination Event”), the right of the Series A Preferred Unitholders to designate a Series A Designated Director shall automatically terminate (unless and until another Series A Trigger Event shall have occurred) and the Series A Designated Director then serving as a member of the Board
13 shall, promptly upon (and in any event within two (2) Business Days following) receipt of a written request from the Board, resign as a member of the Board. If the Series A Designated Director does not resign upon such request, then a majority of the other Directors then serving on the Board may remove the Series A Designated Director as a member of the Board. (e) Notwithstanding anything herein to the contrary, while a Conflicts Committee of Plains All American GP LLC is empaneled, each Independent Director serving on such conflicts committee shall abstain from all decision-making activities of the Board with respect to matters being considered by, or that have been assigned to, such conflicts committee. (f) The Chairman of the Board will provide leadership to the Board and coordinate the activities of the Board. Specific responsibilities of the Chairman of the Board will vary as follows depending on whether the roles of CEO and Chairman of the Board are held by the same person: (i) If and for so long as the roles of CEO and Chairman of the Board are held by the same person, the responsibilities of the Chairman of the Board will include the following: (A) presiding at regular and special meetings of the Board, and at annual and special meetings of equity holders; (B) working with the Governance Committee to ensure the perpetuation of a strong Board and effective governance structure; (C) in consultation with the Lead Director, developing and communicating Board meeting schedules and agendas; (D) working with the Lead Director to establish parameters for the quality, amount and timeliness of the information flow between management and the Board (it being understood that management is responsible for the preparations of materials for the Board consistent with these parameters); (E) conferring with the Lead Director regarding the development, implementation and monitoring of near- and long-term strategic plans and major activities of the Company and confirming with the Lead Director that Board decisions and policies have been implemented; and (F) working cooperatively and collaboratively with the Lead Director as necessary to support and facilitate the discharge by the Lead Director of his or her duties as outlined in Section 6.1(g) below; and
14 (ii) If and for so long as the roles of CEO and Chairman of the Board are not held by the same person, the responsibilities of the Chairman of the Board will include the following: (A) presiding at regular and special meetings of the Board, meetings of the Non-Management Directors, and at annual and special meetings of equity holders; (B) working with the Governance Committee to ensure the perpetuation of a strong Board and effective governance structure; (C) in consultation with the CEO, developing and communicating Board meeting schedules and agendas; (D) acting as a liaison between management and the Board; (E) providing advice and counsel to the CEO on various corporate issues; (F) establishing parameters for the quality, amount and timeliness of the information flow between management and the Board (it being understood that management is responsible for the preparations of materials for the Board consistent with these parameters); (G) conferring with the CEO regarding the development, implementation and monitoring of near- and long-term strategic plans and major activities of the Company and confirming with the CEO that Board decisions and policies have been implemented; (H) assuring that the Board provides resources to both the CEO and management to achieve the Company’s stated goals; (I) guiding the Board in discharging its responsibilities (including with respect to the retention of outside advisors where needed) and directing the Board toward Board matters and away from management matters that are clearly the responsibility of the CEO; and (J) supporting and promoting business relationships as appropriately requested by management. (g) If and for so long as a Lead Director is serving, his or her specific responsibilities will include the following: (i) presiding at regular and special meetings of the Board when the Chairman of the Board is not present or able to do so, and calling and/or presiding at meetings of the Non-Management Directors (and briefing the Chairman of the Board on discussions);
25 however, that when a Member engages in such activities, there shall be no presumption of misuse of such confidential information solely because a Representative of such Member may retain a mental impression of any such confidential information. The Company and the Members acknowledge that a Member may have in conception or development technology or business opportunities which may be very similar or even identical to the Company’s confidential information and, so long as such Member abides by Section 10.4, such Member shall have no other restriction on such technology or business opportunities and the Company and the other Members shall have no rights in such technology or business opportunities. The Company and each of the Members also acknowledge and agree that (i) Xxxxx Xxxxxxxx Capital Advisors L.P. and its Affiliates (“Xxxxx Xxxxxxxx”) and EMG Investment, LLC and its Affiliates (“EMG”) manage investments in the energy industry in the ordinary course of business (such investments referred to as “Institutional Investments”) and that Xxxxx Xxxxxxxx and EMG may make Institutional Investments, even if such Institutional Investments are competitive with the Partnership’s and its Subsidiaries’ business; and (ii) Xxxxx Xxxxxxxx and EMG and their respective Affiliates (A) shall not be prohibited, by virtue of its status as a Member, from pursuing or engaging in such Institutional Investments described in clause (i) above or activities or interests described in clause (ii) above, as applicable; (B) shall not be obligated, or have a duty, to inform or present to the Company or any of its Subsidiaries, of any opportunity, relationship or investment (and no other Member will acquire or be entitled to any interest or participation in any such opportunity, relationship or investment) and shall not be bound by the doctrine of corporate opportunity (or any analogous doctrine); and (C) shall not be deemed to have a conflict of interest with, or to have breached this Section 11.1 or any duty (if any), whether express or implied by law, to, the Company or its Affiliates or any other Member by reason of such Member’s (or any of its Representative’s or equity holder’s) involvement in such activities or interests; provided, that in all cases, such Institutional Investments are not in violation of the provisions of Section 10.4 or the second sentence of this Section 11.1. Each of the Members confirms that the restrictions in this Section 11.1 are reasonable and valid and all defenses to the strict enforcement thereof are hereby waived by each of the Members. 11.2 Non-Solicitation. Each of the Members (other than PAGP) undertakes toward the Company and is obligated (absent the prior written consent of the Company), during the period that it is a Member and for a period of one year thereafter, not to solicit or hire, directly or indirectly, in any manner whatsoever (except in response to a general solicitation or a non-directed executive search), in the capacity of employee, consultant or in any other capacity whatsoever, one or more of the employees, directors or officers or other Persons (hereinafter collectively referred to as “Employees”) who at the time of solicitation or hire, or in the 90-day period prior thereto, are working full-time or part-time for the Company or any of its Subsidiaries and not to endeavor, directly or indirectly, in any manner whatsoever, to encourage any of said Employees to leave his or her job with the Company or any of its Subsidiaries and not to endeavor, directly or indirectly, and in any manner whatsoever, to incite or induce any client of the Company or any of its Subsidiaries to terminate, in whole or in part, its business relations with the Company or any of its Subsidiaries. 11.3 Damages. Each of the Members acknowledges that damages may not be an adequate compensation for the losses which may be suffered by the Company as a result of the breach by such Member of the covenants contained in this Article XI and that the Company shall
26 be entitled to seek injunctive relief with respect to any such breach in lieu of or in addition to any recourse in damages without the posting of a bond or other security. 11.4 Limitations. In the event that a court of competent jurisdiction decides that the limitations set forth in Section 11.1 hereof are too broad, such limitations shall be reduced to those limitations that such court deems reasonable. ARTICLE XII MISCELLANEOUS 12.1 Waiver of Default. No consent or waiver, express or implied, by the Company or a Member with respect to any breach or default by the Company or a Member hereunder shall be deemed or construed to be a consent or waiver with respect to any other breach or default by any party of the same provision or any other provision of this Agreement. Failure on the part of the Company or a Member to complain of any act or failure to act of the Company or a Member or to declare such party in default shall not be deemed or constitute a waiver by the Company or the Member of any rights hereunder. 12.2 Amendment. (a) Except as otherwise expressly provided elsewhere in this Agreement, this Agreement shall not be altered, modified or changed except by an amendment approved by the Board; provided, however, that (i) no amendment of the terms of this Agreement that (A) increases or extends any financial obligation or liability of a Member or (B) otherwise adversely affects the obligations or rights of a Member (as a Member under this Agreement) in a manner different than a Majority in Interest shall be effective without the prior written consent of such Member; (ii) no amendment of Sections 6.1, 6.2, 6.3, 6.4, 11.1 or this Section 12.2 that adversely affects the obligations or rights of a Member shall be effective as to any Member without the prior written consent of that Member; (iii) no amendment of Article VI that would adversely affect the director election rights of holders of PAGP Class A Shares in any material respect shall be effective without the approval of a majority of the Company’s Independent Directors; and (iv) no amendment to Section 6.1(b), Section 6.1(c), Section 6.1(d) or this Section 12.2(a)(iv) shall be effective without the consent of the Series A Preferred Unitholders holding a majority of the then outstanding Series A Preferred Units. (b) In addition to any amendments otherwise authorized herein, the Board may make any amendments to any of the Schedules to this Agreement from time to time to reflect transfers of Company Units and issuances of additional Company Units. Copies of such amendments shall be delivered to the Members promptly following execution thereof.
27 (c) The Board shall cause to be prepared and filed any amendment to the Certificate that may be required to be filed under the Act as a consequence of any amendment to this Agreement. (d) Any modification or amendment to this Agreement or the Certificate made in accordance with this Section 12.2 shall be binding on all Members and the Board. 12.3 No Third Party Rights. Except for the rights provided to the Series A Preferred Unitholders in Sections 6.1(b), 6.1(c) and 6.1(d), and as provided in Article VII, none of the provisions contained in this Agreement shall be for the benefit of or enforceable by any third parties, including creditors of the Company. 12.4 Severability. In the event any provision of this Agreement is held to be illegal, invalid or unenforceable to any extent, the legality, validity and enforceability of the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect and shall be enforced to the greatest extent permitted by law. 12.5 Nature of Interest in the Company. A Member’s Company Units shall be personal property for all purposes. 12.6 Binding Agreement. Subject to the restrictions on the disposition of Company Units herein contained, the provisions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, personal representatives, successors and permitted assigns. 12.7 Headings. The headings of the sections of this Agreement are for convenience only and shall not be considered in construing or interpreting any of the terms or provisions hereof. 12.8 Word Meanings. The words “herein,” “hereinafter,” “hereof”, and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The singular shall include the plural, and vice versa, unless the context otherwise requires. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” When verbs are used as nouns, the nouns correspond to such verbs and vice versa. 12.9 Counterparts. This Agreement may be executed in several counterparts, all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the same counterpart. 12.10 Entire Agreement. This Agreement contains the entire agreement between the parties hereto and thereto and supersedes all prior writings or agreements with respect to the subject matter hereof. 12.11 Partition. The Members agree that the Property is not and will not be suitable for partition. Accordingly, each of the Members hereby irrevocably waives any and all right such Member may have to maintain any action for partition of any of the Property. No Member shall have any right to any specific assets of the Company upon the liquidation of, or any distribution from, the Company.
SIGNATURE PAGE FOR FOURTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed on February 25, 2022 and made effective for all purposes as of August 19, 2021. PAA GP HOLDINGS LLC By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Executive Vice President, General Counsel and Secretary
Schedule 1 SCHEDULE 1 Original Members Plains GP Holdings L.P. Oxy Holding Company (Pipeline), Inc. EMG Investment, LLC. KAFU Holdings, L.P. KA First Reserve XII, LLC KAFU Holdings II, L.P. Xxxxx Xxxxxxxx MLP Investment Company Xxxxx Xxxxxxxx Energy Development Company Xxxxx Xxxxxxxx Midstream/Energy Fund, Inc. PAA Management, L.P. Xxxx X. Xxxxxx Living Trust Xxxxxx PAA, L.P. Xxxxx, X.X.X. Lynx Holdings I, LLC Xxx X. Xxxxxxxxx Xxxx PAA Trust Xxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxx