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EXHIBIT 3.4
AMENDMENT NO. 3 TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
EOTT ENERGY PARTNERS, L.P.
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF EOTT ENERGY PARTNERS, L.P. (this "Amendment"), dated as of
February 13, 1997, 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 change reflected
in this Amendment will be beneficial to the Limited Partners, including the
holders of the Common Units;
NOW, THEREFORE, the Partnership Agreement is hereby amended as
follows:
1. AMENDMENT RELATING TO AVAILABLE CASH IN EXCESS OF MINIMUM QUARTERLY
DISTRIBUTION. Section 5.3 of the Partnership Agreement is hereby amended by
adding a new paragraph (d) at the end thereof, to read as follows:
(d) Notwithstanding anything to the contrary herein, any
Special Limited Partner may, at its election with respect to any
calendar quarter, waive its right to receive any distribution of
Available Cash pursuant to Section 5.4(d) by so notifying the General
Partner prior to the time such distribution is made, and in such case
the Partnership shall retain such Available Cash for distribution in
subsequent periods or for use in the Partnership's business in
subsequent periods. Any amounts so retained will nevertheless be
considered Available Cash for such calendar quarter for purposes of
subparagraph (b)(ii) of the definition of Subordination Period.
2. AMENDMENTS RELATING TO PARTIAL CONVERSIONS OF SUBORDINATED UNITS.
Section 5.7(c) of the Partnership Agreement is hereby amended to read in its
entirety as follows:
(c) After the end of the Subordination Period or upon the
exercise by the Underwriters of the Overallotment Option (to the
extent of any Subordinated Units affected by such exercise of the
Overallotment Option as provided in subparagraph (b) immediately
above), once the General Partner determines, based on advice of
counsel, that a Subordinated Unit that the holder thereof desires to
convert into a Common Unit has, as a substantive matter, like
intrinsic economic and federal income tax characteristics, in all
material respects, to the intrinsic economic and federal income tax
characteristics of a Common Unit then Outstanding, then such
Subordinated Unit may, at the option of the holder thereof (which
option may be exercised at any time after the end of the Subordination
Period and from time to time as to some or all of the Subordinated
Units held by such holder), be converted to a Common Unit (on a
one-for-one basis) and from that time forward (which time shall,
except as provided in subparagraph (b) above, in no event commence
before the first day following the end of the Subordination Period)
shall constitute a Common Unit for all purposes under this Agreement.
In connection with the condition set forth above, it is understood
that the General Partner may take
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whatever reasonable steps are required to provide economic uniformity
to the Subordinated Units in preparation for a conversion into Common
Units, including the application of Sections 4.4(c) and 5.1(d)(x);
provided, however, that no such steps may be taken that would have a
material adverse effect on the Limited Partners holding Common Units
or the Record Holders of any class of Units.
Section 5.1(d)(x) of the Partnership Agreement is hereby amended to read in its
entirety as follows:
(x) Economic Uniformity. At the election of the General Partner with
respect to any taxable period ending upon, or after, the termination
of the Subordination Period, all or a portion of the remaining items
of Partnership gross income or gain for such taxable period, if any,
shall be allocated 100% to each Partner that holds Subordinated Units
and that desires to convert such Subordinated Units into Common Units,
such allocation to be made in the proportion of the number of
Subordinated Units held by such Partner that such Partner desires to
convert to the total number of Subordinated Units that all holders
desire to convert, until each such Partner has been allocated an
amount of gross income or gain which increases the Capital Account
maintained with respect to such Subordinated Units that such Partner
desires to convert to an amount equal to the product of (A) the number
of Subordinated Units that such Partner desires to convert and (B) the
Per Unit Capital Amount for a Common Unit. The purpose of this
allocation is to establish uniformity between the Capital Accounts
underlying Subordinated Units to be converted and the Capital Accounts
underlying Common Units held by Persons other than the General Partner
and its Affiliates immediately prior to the conversion of such
Subordinated Units into Common Units. This allocation method for
establishing such economic uniformity will only be available to the
General Partner if the method for allocating the Capital Account
maintained with respect to the Subordinated Units between the
transferred and retained Subordinated Units pursuant to Section
4.4(c)(ii) does not otherwise provide such economic uniformity to the
Subordinated Units.
Following the end of the Subordination Period any Subordinated Units
not converted into Common Units will be designated as "Class B Common Units,"
and all references in the Partnership Agreement to Subordinated Units will be
deemed to be references to the Class B Common Units.
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.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
GENERAL PARTNER:
EOTT ENERGY CORP.
By: /S/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
President
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.
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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/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
President
