REVISED AMENDMENT NO. 1 TO THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BREITBURN ENERGY PARTNERS L.P.
Exhibit
3.1
REVISED
AMENDMENT NO. 1
TO
THE
OF
This
Revised Amendment No. 1 to the First Amended and Restated Agreement of Limited
Partnership of BreitBurn Energy Partners L.P., a Delaware limited partnership
(the “Partnership”),
dated as of December 29, 2009 (this “Amendment”), is made and
entered into by BreitBurn GP, LLC, a Delaware limited liability company, as
general partner of the Partnership (the “General Partner”) and as the
lawful agent and attorney-in-fact for and on behalf of each of the limited
partners of the Partnership. Capitalized terms used herein and not
otherwise defined are used as defined in the First Amended and Restated
Agreement of Limited Partnership of the Partnership, dated as of October 10,
2006, as amended from time to time (the “LP Agreement”).
W I T N E S S E T
H
WHEREAS, the Partnership is a
Delaware limited partnership that was formed under the Delaware Revised Uniform
Limited Partnership Act, 6 Del. C. §
17-101, et
seq., and is
currently governed by the LP Agreement;
WHEREAS, the General Partner
adopted an Amendment No. 1 to the Partnership Agreement dated as of June 17,
2008 (the “Original Amendment
No. 1”);
WHEREAS, immediately prior to
the adoption of Original Amendment No. 1, the Partnership had acquired 100% of
the outstanding limited liability company interests in BreitBurn Management
Company, LLC (“BreitBurn
Management”);
WHEREAS, immediately prior to
the adoption of Original Amendment No. 1, BreitBurn Management had distributed
and assigned 100% of the limited liability company interests in the General
Partner to the Partnership;
WHEREAS, simultaneously with
the adoption of Original Amendment No. 1, the General Partner Interest ceased to
be an economic interest in the Partnership; however, BreitBurn GP, LLC continued
to be the general partner of the Partnership;
WHEREAS, the General Partner
desired to adopt Original Amendment No. 1 pursuant to and in accordance with
Section 13.1 of the LP Agreement;
WHEREAS, Original Amendment
No. 1 was intended to provide Limited Partners with a meaningful right to vote
in the election of directors of the General Partner; however, for the avoidance
of doubt, Original Amendment No. 1 was not intended to change in any manner the
requirement, as set forth in Section 13.2 of the LP Agreement, that amendments
to the LP Agreement may be proposed only by the General Partner;
WHEREAS, Quicksilver Resources
Inc. (“Quicksilver”) has
asserted, among other things, that the General Partner’s adoption of Original
Amendment No. 1 was invalid in an action styled Quicksilver Resources Inc. v.
BreitBurn Energy Partners, L.P., et al., No. 048--233656-08, currently
pending in the 48th
Judicial District Court of Tarrant County, Texas (the “Quicksilver
Litigation”);
WHEREAS, certain interlocutory
decisions by the Court in the Quicksilver Litigation have held that the General
Partner’s adoption of Original Amendment No. 1 was invalid;
WHEREAS, the General Partner
desires to eliminate uncertainty arising from the Quicksilver Litigation with
respect to whether Limited Partners would have any right (much less a meaningful
right) to elect directors of the General Partner, and the General Partner
desires to readopt certain provisions of the Original Amendment not relating to
voting rights to elect the directors of the General Partner while the General
Partner considers the proposal and adoption of a new meaningful right for the
Limited Partners to elect directors of the General Partner;
WHEREAS, for the avoidance of
doubt, this Amendment is not intended to change in any manner the requirement,
as set forth in Section 13.2 of the LP Agreement, that amendments to the LP
Agreement may be proposed only by the General Partner;
WHEREAS, the General Partner
intends, as it did with Original Amendment No. 1, that this Amendment be
considered in its entirety and that no portion of this Amendment be severable
from any other portion of this Amendment;
WHEREAS, the General Partner
would not adopt this Amendment, as it would not have adopted Original Amendment
No. 1, if it believed that any portion of this Amendment was invalid;
and
WHEREAS, the General Partner
has determined that this Amendment does not adversely affect the Limited
Partners (as a whole or individually, including Quicksilver individually),
including any particular class of Partnership Interests as compared to other
classes of Partnership Interests, in any material respect;
NOW, THEREFORE, intending to
be legally bound, the General Partner, on its own behalf and on behalf of all
Limited Partners, agrees as follows:
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I.
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AMENDMENTS.
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The LP
Agreement is amended as follows:
1. This
Amendment supersedes and replaces each of Original Amendment Xx. 0, Xxxxxxxxx
Xx. 0 to the LP Agreement dated as of April 7, 2009 (“Amendment No. 2”) and
Amendment No. 3 to the LP Agreement dated as of August 27, 2009 (“Amendment No. 3”) in its
entirety. This Amendment shall be deemed to be effective as of June
17, 2008. For clarification, any provision contained in Original
Amendment Xx. 0, Xxxxxxxxx Xx. 0 or Amendment No. 3 that is not contained in
this Amendment shall not be deemed to be part of the LP Agreement or any
amendment thereof.
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2. The
definition of the term “General Partner Interest” set forth in Section 1.1 of
the LP Agreement is hereby amended in its entirety to read as
follows:
““General Partner Interest”
means the management interest of the General Partner in the Partnership in its
capacity as a general partner. The General Partner Interest does not
have any rights to ownership, profit or any rights to receive distributions from
operations or the liquidation of the Partnership. For the avoidance
of doubt, it is hereby confirmed that as of the time on June 17, 2008 that the
original Amendment No. 1 hereto was intended to be effective, BreitBurn GP, LLC
continues as the general partner of the Partnership without holding any economic
interest in the Partnership and the business of the Partnership is continued
without dissolution.”
3. The
definition of the term “General Partner Unit” in Section 1.1 of the LP Agreement
is hereby deleted in its entirety.
4. The
definition of the term “Percentage Interest” in Section 1.1 of the LP Agreement
is hereby amended in its entirety to read as follows:
““Percentage Interest” means as
of any date of determination (a) as to any Unitholder or Assignee with respect
to Units, the product obtained by multiplying (i) 100% less the percentage
applicable to clause (b) below by (ii) the quotient obtained by dividing (A) the
number of Units held by such Unitholder or Assignee by (B) the total number of
outstanding Units, and (b) as to the holders of other Partnership Securities
issued by the Partnership in accordance with Section 5.6, the percentage
established as a part of such issuance. The Percentage Interest with
respect to the General Partner Interest shall at all times be
zero.”
5. Section
5.2(c) of the LP Agreement is hereby deleted in its entirety.
6. Section
5.7 of the LP Agreement is hereby amended in its entirety to read as
follows:
“Section
5.7 Limited
Preemptive Right.
No Person
shall have any preemptive, preferential or other similar right with respect to
the issuance of any Partnership Security, whether unissued, held in the treasury
or hereafter created.”
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II.
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MISCELLANEOUS.
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1. Successors and
Assigns. This Amendment shall be binding upon, and shall enure
to the benefit of, each of the Partners, and its respective successors and
assigns.
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2. Full Force and
Effect. Except to the extent modified hereby, the LP Agreement
shall remain in full force and effect.
3. Governing
Law. This Amendment shall be interpreted in accordance with
the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by such laws.
4. Execution in
Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
as of the day and year first above written.
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GENERAL
PARTNER:
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BREITBURN
GP, LLC
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By:
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/s/ Xxxxxxx X. Xxxxxxxxxxx | |
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Name:
Xxxxxxx X. Xxxxxxxxxxx
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Title:
Co-Chief Executive Officer
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LIMITED
PARTNERS:
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| ALL LIMITED PARTNERS PREVIOUSLY ADMITTED TO THE PARTNERSHIP THAT CONTINUE TO BE LIMITED PARTNERS ON THE DATE HEREOF: | |||
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By:
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BreitBurn
GP, LLC, as attorney-in-fact
pursuant
to the power of attorney granted
under
Section 2.6 of the LP Agreement
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By:
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/s/ Xxxxxxx X.
Xxxxxxxxxxx
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Name:
Xxxxxxx X. Xxxxxxxxxxx
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Title:
Co-Chief Executive
Officer
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