SECOND AMENDMENT TO GENERAL PARTNERSHIP AGREEMENT OF COLORADO INTERSTATE GAS COMPANY July 24, 2009
EXHIBIT 3
SECOND AMENDMENT
TO
OF
This SECOND AMENDMENT to GENERAL PARTNERSHIP AGREEMENT OF COLORADO INTERSTATE GAS COMPANY (the “Amendment”), is made and entered into as of this 24th day of July, 2009, by El
Paso Noric Investments III, L.L.C., a Delaware limited liability company (“EP Noric”), and EPPP CIG GP Holdings, L.L.C., a Delaware limited liability company (“EPPP CIG”), each as a general partner of the Partnership (collectively, “the
Partners”).
WITNESSETH:
WHEREAS, Colorado Interstate Gas Company (“CIGC”), a Delaware corporation, owned and operated an interstate natural gas pipeline system and, through its subsidiaries, conducted other businesses; and
WHEREAS, in accordance with Section 266 of the Delaware General Corporation Law (“DGCL”) and Section 15-901 of the Delaware Revised Uniform Partnership Act (“DRUPA”), CIGC
was converted (the “Conversion”) into a Delaware general partnership (the “Partnership”), with the Partnership’s existence deemed in accordance with DRUPA Section 15 901(d) to have commenced on the date that CIGC commenced its existence as a Delaware corporation; and
WHEREAS, pursuant to the General Partnership Agreement of Colorado Interstate Gas Company (the “Agreement”) and the Conversion, the stockholders of CIGC, EP Noric and EPPP CIG, became general partners of the Partnership, all of the issued and outstanding shares
of capital stock in CIGC were converted into Partnership Interests in the Partnership, and the stockholders of CIGC became the owners of all of the Partnership Interests in the Partnership, each holding the Percentage Interest set forth opposite its name on Annex I to the Agreement; and
WHEREAS, pursuant to a Contribution and Exchange Agreement dated September 17, 2008, the Agreement was amended on September 30, 2008 to reflect the contribution, transfer and conveyance to EPPP CIG of a 30% Percentage Interest in the Partnership such that EPPP CIG’s owns a 40% Partnership Interest and EP Noric’s owns a 60% Partnership
Interest; and
WHEREAS, pursuant to the Contribution Agreement (the “Contribution Agreement”) dated July 24, 2009, and for good and valuable consideration, EP Noric agreed to contribute, transfer and convey to EPPP CIG an additional 18% Percentage Interest in the Partnership;
and
WHEREAS, in accordance with Section 3.4 of the Agreement, the Partners and the Management Committee of CIGC have expressly approved and consented (and do hereby expressly approve and consent) to the admission of El Paso Pipeline Partners, L.P., a Delaware limited partnership, or its designee as a partner of CIGC owning a 58% Partnership Interest
and having all of the rights, privileges and obligations relating thereto, including the right to vote on Partnership matters.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Partners hereby agree:
1. Section 6.2(h) of the Agreement shall be deleted in its entirety and shall be replaced with the following new Section 6.2(h):
|
(h) |
Matters Requiring Management Committee Approval. Except as expressly provided elsewhere in this Agreement, none of the following actions may be taken by, or on behalf of the Partnership, without first obtaining the vote of the Management Committee or Partners described below: |
(i) Unanimous Interest. The following actions shall require the approval of all Representatives or Partners:
(A) to the fullest extent permitted by law, dissolution of the Partnership under Section 11.1(a);
(B) to the fullest extent permitted by law, causing or permitting the Partnership to become Bankrupt (but this provision is not intended to require, nor shall it be construed to require, any Partner to ensure the profitability or solvency of the Partnership);
(C) causing the Partnership to mortgage or pledge any of its properties or assets with a value exceeding a total of $225 million to secure the payment or performance of any obligation for the repayment of borrowed money or any guarantee of such repayment;
(D) the commencement before the FERC, or the resolution through settlement, stipulation or other consensual means, in whole or in part, before the FERC (or before any United States Court of Appeals on an appeal of an order of the FERC), of any proceeding or controversy, including
any NGA Section 4 (15 U.S.C. Section 717(c)) general rate case, or an appeal of any order thereof, the outcome of which would cause either:
(i) the Partnership’s revenues to be reduced by a total of $50 million or more annually;
(ii) the Partnership to pay penalties, refunds or interest of, a total of $50 million or more; or
(iii) to agree to any criminal penalty;
(E) any amendment to this Agreement (including any amendment to Section 5.1), other than an amendment solely made to change the Partnership’s name;
(F) the creation of any additional Partnership Interests of any class in accordance with Section 3.4 and specifying the rights, class(es) and duties thereof, or the proposed admission of any Person (other than a Permitted
Transferee) as a partner of the Partnership, whether as a result of the Disposition by a Partner of all or any part of its Partnership Interest or otherwise, provided, however, that the Disposition by a Partner of all or any part of its Partnership Interest to a Permitted Transferee shall not require the prior approval of the Management Committee;
(G) any proposal to sell or otherwise Dispose of assets of the Partnership (excluding any agreement to sell service using capacity on the Facilities), whether in a single transaction or any series of transactions, outside the ordinary course of the Partnership’s business with
a value exceeding a total of $225 million in any calendar year;
(H) the Disposition or abandonment of all or substantially all of the assets of the Partnership, and any Disposition (including a Deemed Tax Disposition, if such Disposition, when added to the total of all other Dispositions (including Deemed Tax Dispositions) within the preceding
twelve months, results in the Partnership being considered to have terminated within the meaning of Section 708(b)(1)(B) of the Code;
(I) causing or permitting the Partnership to merge with, or consolidate or convert into, any other entity;
(J) entering into, conducting, or authorizing the Partnership to conduct, any new activity or business that may cause the Partnership to generate income for federal income tax purposes which will not constitute “qualifying income” (as such term is defined pursuant to
Section 7704 of the Code); or
(K) any amendment to the Master Services Agreement, other than any amendment that the Management Committee determines would not materially adversely affect the Partnership;
(ii) Majority Interest. Except for matters that are covered by Section 6.2(h)(i) or matters
that the law otherwise requires approval by a greater percentage, a Majority Interest shall be required to approve any action that requires approval of the Partners or the Representatives, including the following matters:
(A) causing the Partnership to take any action under this Agreement that requires Management Committee approval other than the actions specified in Section 6.2(h)(i);
(B) the determination of the amount of Available Cash with respect to each Quarter;
(C) approving, modifying or amending the annual Capital Budget and Operating Budget for the Partnership (with it being understood that the latest approved Capital Budget or Operating Budget shall be used, and deemed approved, for any subsequent period until the new Capital Budget
or Operating Budget (as applicable) for that period is so approved), including the parameters under which the Officers are authorized to expend Partnership funds without further Management Committee approval;
(D) issuing or causing to be issued any Capital Call under Section 4.1 or Loan Notice under Section 4.2;
(E) any additions to (by acquisition, development, construction or otherwise) or expansions or extensions of the Facilities, provided that any additions, expansions or extensions to the Facilities approved by either (I) any duly authorized Officer(s) pursuant to authority delegated
by the Management Committee or (II) in accordance with the Master Services Agreement, shall be deemed approved by the Management Committee for purposes hereof and shall not require separate approval;
(F) appointing Officers of the Partnership and determining their authority to act on behalf of the Partnership;
(G) designating Officers or employees to serve on the audit committee of the Partnership, if one shall be established by the Management Committee;
(H) any change in the Partnership’s name;
(I) causing the Partnership to enter into any short-term or long-term indebtedness, but Working Capital Borrowings made from time-to-time under an agreement previously approved as contemplated herein need not be further approved by the Management Committee;
(J) except for any commencement or resolution that requires the unanimous approval of the Management Committee pursuant to Section 6.2(i)(D) above, the commencement before the FERC, or the resolution through settlement,
stipulation or other consensual means of any matter brought under the NGA Section 4 (15 U.S.C. Section 717(c)) or Section 5 (15 U.S.C. Section 717(d)); provided that the Management Committee may delegate to any duly authorized Officer(s) the right(s) to commence or resolve any such proceeding involving $25 million or less;
(K) making any tax elections under the Code; or
(L) except for any mortgage or pledge of any properties or assets that requires the unanimous approval of the Management Committee pursuant to Section 6.2(i)(C) above, causing the Partnership to mortgage or pledge
any of its properties or assets to secure the payment or performance of any obligation for the repayment of borrowed money or any guarantee of such repayment.
2. Annex I to the Agreement shall be deleted in its entirety and shall be replaced with the attached Annex I.
3. In accordance with Section 3.4 of the Agreement, the Partners and the Management Committee of CIGC have expressly approved and consented (and do hereby expressly approve and consent) to the admission of El Paso Pipeline Partners, L.P., a Delaware limited partnership, or its designee
as a partner of CIGC owning a 58% Partnership Interest and having all of the rights, privileges and obligations relating thereto, including the right to vote on Partnership matters.
IN WITNESS WHEREOF, the Partners have executed this Amendment as of the date first set forth above.
| PARTNERS: | |||
| EL PASO NORIC INVESTMENTS III, L.L.C. | |||
|
|
By: |
/s/ Xxxx X. Xxxx | |
| Name: | Xxxx X. Xxxx | ||
| Title: | Senior Vice President | ||
| EPPP CIG GP HOLDINGS, L.L.C. | |||
|
|
By: |
/s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | ||
| Title: | Vice President | ||
[Signature page to Second Amendment to Partnership Agreement of Colorado Interstate Gas Company]
ANNEX I
|
Partner Identity
and Address |
Percentage
Interest |
Number of
Representatives
and Alternative Representatives |
Identity of
Representatives |
Identity of
Alternate
Representatives |
Parent | |||||
|
El Paso Noric Investments III, L.L.C.
El Paso Building
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: ______ |
42% |
1 Representative
and up to
1 Alternate |
Xxxxxx X. Xxxxxx
|
_________________
|
El Paso Corporation | |||||
|
EPPP CIG GP Holdings, L.L.C.
El Paso Building
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: ______ |
58% |
3 Representatives
and up to
3 Alternates |
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
|
_________________
_________________
_________________ |
El Paso Pipeline Partners, L.P. |
