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EXHIBIT 4.12
AMENDMENT NO. 7 TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
EOTT ENERGY PARTNERS, L.P.
THIS AMENDMENT NO. 7 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF EOTT ENERGY PARTNERS, L.P. (this "Amendment"), dated as of August
29, 2001, is entered into by EOTT Energy Corp., a Delaware corporation, as the
General Partner, pursuant to authority granted to it in Section 15.1(d) of the
Amended and Restated Agreement of Limited Partnership of EOTT Energy Partners,
L.P., dated as of March 25, 1994 (the "Partnership Agreement").
WHEREAS, Section 15.1(d)(i) of the Partnership Agreement provides that
each Limited Partner agrees that the General Partner (pursuant to its powers of
attorney from the Limited Partners and Assignees), without the approval of any
Limited Partner or Assignee, may amend any provision of the Partnership
Agreement, and may execute, swear to, acknowledge, deliver, file and record
whatever documents may be required in connection therewith, to reflect a change
that, in the sole discretion of the General Partner, does not adversely affect
the Limited Partners in any material respect; and
WHEREAS, the General Partner has determined that the changes reflected
in this Amendment will be beneficial to the Limited Partners, including the
holders of the Common Units, and do not adversely affect the Limited Partners in
any material respect;
NOW, THEREFORE, contemporaneously with the effectiveness of the
Reorganization Agreement to be entered into by and among the Partnership, the
Operating Partnerships, the General Partner and EOTT Energy General Partner,
L.L.C., a Delaware limited liability company, the Partnership Agreement is
amended as follows:
1. AMENDMENT TO ADD DEFINITION OF REORGANIZATION AGREEMENT. Article II
of the Partnership Agreement is hereby amended to add the following definition:
"Reorganization Agreement" means the Reorganization Agreement
dated August 29, 2001 among the Partnership, EOTT Energy Corp., EOTT
Energy General Partner, L.L.C., EOTT Energy Operating Limited
Partnership, EOTT Energy Pipeline Limited Partnership and EOTT Energy
Canada Limited Partnership.
2. AMENDMENTS TO CHANGE THE PARTNERS' PERCENTAGE INTERESTS. In the
following sections of the Partnership Agreement, the term "1%" is hereby amended
to read "1.98%" and the term "99%" is hereby amended to read "98.02%":
(a) Article II in the definition of the term "Percentage
Interest;"
(b) Section 5.1(a)(ii);
(c) Section 5.1(b)(iii);
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(d) Section 5.1(c)(i);
(e) Section 5.1(c)(ii);
(f) Section 5.4;
(g) Section 5.5; and
(h) Section 13.3(c).
3. AMENDMENTS RELATING TO ALLOCATION OF NET TERMINATION GAIN AND
AVAILABLE CASH DEEMED TO BE CASH FROM OPERATIONS. In Sections 5.1(c)(i)(F),
5.1(c)(i)(G), 5.1(c)(i)(H) 5.4(f), 5.4(g) and 5.4(h), the percentage amounts are
hereby amended to add .98% to each amount distributable to the General Partner
and to subtract .98% from each amount distributable to the Limited Partners.
4. AMENDMENT RELATING TO PRIORITY ALLOCATIONS. In Section 5.1(d)(iii),
the term "1/99" is hereby amended to read "1.98/98.02".
5. TRANSFER OF INTEREST. Section 11.2 is hereby amended to add the
following sentence immediately after the third sentence in Section 11.2:
"Notwithstanding any of the provisions of this Section 11.2 and without
the approval of any Limited Partner or Assignee, the General Partner
may transfer a portion of its general partner interest consisting of a
.98% interest in the Partnership to an Affiliate of the General
Partner, and upon such transfer the transferred interest shall continue
to have the same economic characteristics and other rights it had prior
to the transfer (it being understood that only the interest retained by
the General Partner shall be entitled to the incentive distributions
provide for in Sections 5.1(c)(i)(F), 5.1(c)(i)(G), 5.1(c)(i)(H)
5.4(f), 5.4(g) and 5.4(h) of the Agreement), and such transfer shall
not effect any change in the nature of such interest, except that such
interest shall be deemed to be a limited partner interest (but not a
Unit), and the holder thereof shall have the limited liability of a
limited partner; and the General Partner may further amend this
Agreement to reflect such transfer, provided that no such amendment
shall adversely affect the rights of the Limited Partners."
6. AMENDMENT TO ADD SECTION RELATING TO REORGANIZATION AGREEMENT.
Article XVIII is hereby amended to add the following immediately after Section
18.12:
"18.13 Amendments to Reflect Reorganization Agreement. This Agreement
shall be deemed to be further amended to the extent necessary to carry
out the purposes and intent of the Reorganization Agreement."
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7. CAPITALIZED TERMS. Capitalized terms used but not defined herein are
used as defined in the Partnership Agreement. This Amendment will be governed by
and construed in accordance with the laws of the State of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
GENERAL PARTNER:
EOTT ENERGY CORP.
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
President and Chief
Operating Officer
LIMITED PARTNERS:
All Limited Partners now and
hereafter admitted as limited
partners of the Partnership,
pursuant to Powers of Attorney now
and hereafter executed in favor of,
and granted and delivered to, the
General Partner.
By: EOTT Energy Corp.,
General Partner, as
attorney-in-fact for all Limited
Partners pursuant to the Powers
of Attorney granted pursuant to
Section 1.4.
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
President and Chief Operating
Officer
