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EXHIBIT 3.8
REORGANIZATION AGREEMENT
THIS REORGANIZATION AGREEMENT, dated as of August 29, 2001, is entered
into by and among EOTT Energy Partners, L.P., a Delaware limited partnership
("EOTT"); EOTT Energy Operating Limited Partnership, a Delaware limited
partnership ("Energy OLP"); EOTT Energy Pipeline Limited Partnership, a Delaware
limited partnership ("Pipeline OLP"); EOTT Energy Canada Limited Partnership, a
Delaware limited partnership ("Canada OLP"); EOTT Energy Corp., a Delaware
corporation (the "MLP General Partner"); and EOTT Energy General Partner,
L.L.C., a Delaware limited liability company (the "OLP General Partner"). Energy
OLP, Pipeline OLP and Canada OLP are sometimes referred to herein collectively
as the "Original OLPs" and individually as an "Original OLP."
RECITALS
WHEREAS, the parties to this Agreement have determined that it would be
in their best interests to reorganize the equity ownership structure of the
Original OLPs such that each Original OLP becomes a 100%-owned subsidiary of
EOTT (the "Reorganization"); and
WHEREAS, in order to implement the Reorganization, the MLP General
Partner proposes to contribute certain of its partner interests in the Original
OLPs to EOTT and the OLP General Partner, all in accordance with this Agreement;
and
WHEREAS, in anticipation of such contribution, immediately prior to the
execution and delivery of this Agreement the MLP General Partner has executed
amendments to the OLP Partnership Agreements in the form attached as Exhibits A,
B and C to this Agreement, pursuant to which each of the OLP Partnership
Agreements has been amended to convert the MLP General Partner's 1% general
partner interest in each of them into a .01% general partner interest and a .99%
limited partner interest in each of them;
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
ARTICLE I
DEFINITIONS
In addition to the capitalized terms defined in the opening paragraph
of this Agreement, the following capitalized terms shall have the meanings given
below.
"Additional OLP General Partner Member Interest" has the
meaning set forth in Section 2.4.
"Agreement" means this Reorganization Agreement.
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"Canada OLP Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of EOTT Energy Canada Limited
Partnership dated as of March 24, 1994, as amended.
"Delaware Act" means the Delaware Revised Uniform Limited
Partnership Act.
"Energy OLP Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of EOTT Energy Operating Limited
Partnership dated as of March 24, 1994, as amended.
"MLP Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of EOTT Energy Partners, L.P. dated as of March
25, 1994, as amended.
"OLP Excess Liabilities" means any liability of the MLP
General Partner, as general partner of each of the Original OLPs, for
indebtedness of each OLP existing at the time of the assignment of the MLP
General Partner's interests to the OLP General Partner pursuant to Section 2.1,
but only to the extent that the MLP General Partner's share of such liabilities
of an Original OLP immediately prior to any assignment under Section 2.1 exceeds
the MLP General Partner's federal income tax basis in its aggregate partnership
interest in such Original OLP.
"OLP Partnership Agreements" means the Energy OLP Partnership
Agreement, Canada OLP Partnership Agreement and the Pipeline OLP Partnership
Agreement.
"Pipeline OLP Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of EOTT Energy Pipeline Limited
Partnership dated as of March 24, 1994, as amended.
ARTICLE II
CONTRIBUTIONS AND ASSIGNMENTS
2.1 Contribution by the MLP General Partner to the OLP General Partner.
The MLP General Partner hereby grants, contributes, transfers and conveys to the
OLP General Partner, its successors and assigns, all right, title and interest
in and to its 0.01% general partner interest in each of the Original OLPs, and
the OLP General Partner hereby accepts each such interest as a contribution to
the capital of the OLP General Partner and agrees to perform the duties as the
general partner of each of the Original OLPs.
2.2 Contributions by the MLP General Partner to EOTT. Effective
contemporaneously with the contribution and assignment set forth in Section 2.1,
the MLP General Partner hereby grants, contributes, transfers, assigns and
conveys to EOTT, its successors and assigns, all right, title and interest of
the MLP General Partner in and to its 0.99% interest as a limited partner in
Energy OLP.
2.3 Contributions by the MLP General Partner to Energy OLP. Effective
contemporaneously with the contribution and assignment set forth in Section 2.1,
the MLP General Partner hereby grants, contributes, transfers and conveys to
Energy OLP, its successors
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and assigns, all right, title and interest in and to its 0.99% limited partner
interest in each of Canada OLP and Pipeline OLP.
2.4 Issuance to the MLP General Partner of an Interest in the OLP
General Partner. Effective contemporaneously with the contribution and
assignment set forth in Section 2.1 and as consideration for such assignment,
the OLP General Partner hereby issues to the MLP General Partner an additional
member interest in the OLP General Partner (such additional member interest
being referred to herein as, the "Additional OLP General Partner Member
Interest") and hereby admits the MLP General Partner as a member of the OLP
General Partner. The Additional OLP General Partner Member Interest shall
entitle the holder thereof to .01% of the cash distributed by the OLP General
Partner to its members, excluding any cash that was generated by the Pipeline
OLP, the Canada OLP or the Liquids OLP (and for such purposes cash distributed
by any of them to the Energy OLP shall be considered cash generated by them and
not cash generated by the Energy OLP).
2.5 Transfer of the Additional OLP General Partner Member Interest to
EOTT. Effective immediately following the contribution and issuance set forth in
Sections 2.1 and 2.4, the MLP General Partner hereby grants, contributes,
transfers, assigns and conveys to EOTT, its successors and assigns, all right,
title and interest of the MLP General Partner in and to its Additional OLP
General Partner Member Interest.
2.6 Issuance of an Additional General Partner Interest in EOTT to the
MLP General Partner. Effective immediately following the contribution and
assignment set forth in Section 2.5 and as consideration for the assignments
contained in Sections 2.2, 2.3 and 2.5, EOTT hereby issues to the MLP General
Partner an additional 0.99% interest as a general partner in EOTT. In order to
evidence such issuance, the MLP General Partner has amended the MLP Partnership
Agreement pursuant to the instrument attached hereto as Exhibit D, such
amendments to be effective contemporaneously with the effectiveness of this
Agreement.
ARTICLE III
SUCCESSION OF GENERAL PARTNER OF THE ORIGINAL OLPS
3.1 Withdrawal of the MLP General Partner as General Partner of
Original OLPs. Effective contemporaneously with the contribution of the MLP
General Partner's interests pursuant to Section 2.1 hereof and pursuant to
Section 12.1 of each of the OLP Partnership Agreements, the MLP General Partner
hereby withdraws as general partner of each of the Original OLPs and proposes
the OLP General Partner to act and serve as sole general partner of each of the
Original OLPs. Each of the Original OLPs hereby acknowledges receipt of the
opinion of counsel required in Section 12.1(b) of their respective OLP
Partnership Agreement.
3.2 The OLP General Partner as Successor General Partner of the
Original OLPs. Effective contemporaneously with the withdrawal of the MLP
General Partner pursuant to Section 3.1, the OLP General Partner accepts and
agrees to duly and timely pay, perform and discharge the rights, duties and
obligations of the general partner of each of the Original OLPs and all of the
terms and conditions of each of the OLP Partnership Agreements in accordance
with Section 11.3 of each of the OLP Partnership Agreements, and the OLP General
Partner
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agrees to serve as general partner of each of the Original OLPs and to be bound
by each of the OLP Partnership Agreements (and, to the extent applicable, the
MLP Partnership Agreement), as each is amended effective upon the effectiveness
of this Agreement or as may be further amended by the terms of the respective
partnership agreement, and the OLP General Partner is hereby admitted as the
successor general partner of each of the Original OLPs.
ARTICLE IV
ASSUMPTION OF AND INDEMNIFICATION FOR CERTAIN LIABILITIES
4.1 Assumption of Certain Liabilities and Obligations of the MLP
General Partner by the OLP General Partner. In connection with the transfer of
the general partner interests in each of the Original OLPs and the succession by
the OLP General Partner as general partner of each of the Original OLPs, the OLP
General Partner hereby assumes and agrees to duly and timely pay, perform and
discharge all liabilities and obligations of each OLP to the full extent (and
only to the extent) that the MLP General Partner, as general partner of such
OLP, is or has been or would have been in the future, were it not for the
execution and delivery of this Agreement, obligated to pay, perform and
discharge such liabilities and obligations; provided, however, that such
assumption by the OLP General Partner is subject to the indemnification provided
in Section 4.2.
4.2 Indemnification of the OLP General Partner. Upon the transfer of
the general partner interests in each of the Original OLPs to the OLP General
Partner pursuant to Section 2.1 hereof, the MLP General Partner hereby agrees to
indemnify, defend and hold harmless the OLP General Partner from and against any
and all claims, demands, costs, liabilities and expenses (including court costs
and reasonable attorneys' fees) arising from or relating to the OLP Excess
Liabilities.
ARTICLE V
MISCELLANEOUS
5.1 Other Assurances. From time to time after the date hereof, and
without any further consideration, each of the parties to this Agreement shall
execute, acknowledge and deliver all such additional instruments, notices and
other documents, and will do all such other acts and things, all in accordance
with applicable law, as may be necessary or appropriate to more fully and
effectively carry out the purposes and intent of this Agreement.
5.2 Costs. EOTT shall pay all expenses of the Reorganization, including
the expenses of amending the MLP Partnership Agreement and the OLP Partnership
Agreements.
5.3 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties signatory hereto and their respective
successors and assigns.
5.4 No Third Party Rights. The provisions of this Agreement are
intended to bind the parties signatory hereto as to each other and are not
intended to and do not create rights in any other person or confer upon any
other person any benefits, rights or remedies and no person is or is intended to
be a third party beneficiary of any of the provisions of this Agreement.
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5.5 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
5.6 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
EOTT ENERGY CORP.
By: /s/ XXXX X. XXXXX
---------------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
EOTT ENERGY GENERAL PARTNER, L.L.C.
By: /s/ XXXX X. XXXXX
---------------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
EOTT ENERGY PARTNERS, L.P.
By: EOTT Energy Corp., as general partner
By: /s/ XXXX X. XXXXX
---------------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
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EOTT ENERGY OPERATING LIMITED
PARTNERSHIP
By: EOTT Energy Corp., as general partner
By: /s/ XXXX X. XXXXX
-------------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
EOTT ENERGY CANADA LIMITED PARTNERSHIP
By: EOTT Energy Corp., as general partner
By: /s/ XXXX X. XXXXX
-------------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
EOTT ENERGY PIPELINE LIMITED PARTNERSHIP
By: EOTT Energy Corp., as general partner
By: /s/ XXXX X. XXXXX
-------------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
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EXHIBIT A
AMENDMENT NO. 2 TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
EOTT ENERGY OPERATING LIMITED PARTNERSHIP
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF EOTT ENERGY OPERATING LIMITED PARTNERSHIP (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 14.1(d) of the Amended and Restated Agreement of Limited Partnership of
EOTT Energy Operating Limited Partnership dated as of March 24, 1994 (the
"Partnership Agreement").
WHEREAS, Section 14.1(d)(i) of the Partnership Agreement provides that
the Limited Partner agrees that the General Partner (pursuant to its powers of
attorney from the Limited Partner), without the approval of the Limited Partner,
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 Partner in any material
respect; and
WHEREAS, the General Partner has determined that the changes reflected
in this Amendment will be beneficial to the Limited Partner and do not adversely
affect the Limited Partner in any material respect;
NOW, THEREFORE, 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, the MLP, EOTT Energy Corp., EOTT Energy
General Partner, L.L.C., EOTT Energy Pipeline Limited Partnership and EOTT
Energy Canada Limited Partnership.
2. AMENDMENT TO CHANGE THE GENERAL PARTNERS' INTEREST. The Partnership
Agreement is hereby amended to provide that the 1% general partner interest in
the Partnership owned by EOTT Energy Corp. is hereby converted into a .01%
general partner interest and a .99% limited partner interest. The definition of
the term "Percentage Interest" in Article II of the Partnership Agreement is
hereby amended, effective immediately following consummation of the transactions
contemplated by Articles II, III and IV of the Reorganization Agreement, as
follows: the term "1%" is amended to read "0.01%" and the term "99%" is hereby
amended to read "99.99%."
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3. AMENDMENTS RELATING TO REORGANIZATION AGREEMENT. Section 10.2 of the
Partnership Agreement is hereby amended to read as follows: "Except as provided
in the Reorganization Agreement, the General Partner may not transfer its
interest in the Partnership without the written consent of the Limited Partner."
The second sentence of Section 10.3 is hereby amended to add the phrase "Except
as provided in the Reorganization Agreement," at the beginning of the sentence.
Section 12.1(b)(iii) is hereby amended to eliminate the proviso therein. The
first sentence of Section 12.3 is hereby amended to add the phrase "Except as
provided in the Reorganization Agreement," at the beginning of the sentence.
4. AMENDMENT TO ADD SECTION RELATING TO REORGANIZATION AGREEMENT.
Article XVI is hereby amended to add the following immediately after Section
16.11:
"16.12 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."
5. 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.
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
----------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
LIMITED PARTNER:
The Limited Partner, EOTT Energy Partners,
L.P., 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 the Limited Partner pursuant to
the Powers of Attorney granted
pursuant to Section 1.4.
By: /s/ XXXX X. XXXXX
----------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
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EXHIBIT B
AMENDMENT NO. 2 TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
EOTT ENERGY PIPELINE LIMITED PARTNERSHIP
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF EOTT ENERGY PIPELINE LIMITED PARTNERSHIP (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 14.1(d) of the Amended and Restated Agreement of Limited Partnership of
EOTT Energy Pipeline Limited Partnership dated as of March 24, 1994 (the
"Partnership Agreement").
WHEREAS, Section 14.1(d)(i) of the Partnership Agreement provides that
the Limited Partner agrees that the General Partner (pursuant to its powers of
attorney from the Limited Partner), without the approval of the Limited Partner,
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 Partner in any material
respect; and
WHEREAS, the General Partner has determined that the changes reflected
in this Amendment will be beneficial to the Limited Partner and do not adversely
affect the Limited Partner in any material respect;
NOW, THEREFORE, 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, the MLP, EOTT Energy Corp., EOTT Energy
General Partner, L.L.C., EOTT Energy Operating Limited Partnership and EOTT
Energy Canada Limited Partnership.
2. AMENDMENT TO CHANGE THE GENERAL PARTNERS' INTEREST. The Partnership
Agreement is hereby amended to provide that the 1% general partner interest in
the Partnership owned by EOTT Energy Corp. is hereby converted into a .01%
general partner interest and a .99% limited partner interest. The definition of
the term "Percentage Interest" in Article II of the Partnership Agreement is
hereby amended, effective immediately following consummation of the transactions
contemplated by Articles II, III and IV of the Reorganization Agreement, as
follows: the term "1%" is amended to read "0.01%" and the term "99%" is hereby
amended to read "99.99%."
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3. AMENDMENTS RELATING TO REORGANIZATION AGREEMENT. Section 10.2 of the
Partnership Agreement is hereby amended to read as follows: "Except as provided
in the Reorganization Agreement, the General Partner may not transfer its
interest in the Partnership without the written consent of the Limited Partner."
The second sentence of Section 10.3 is hereby amended to add the phrase "Except
as provided in the Reorganization Agreement," at the beginning of the sentence.
Section 12.1(b)(iii) is hereby amended to eliminate the proviso therein. The
first sentence of Section 12.3 is hereby amended to add the phrase "Except as
provided in the Reorganization Agreement," at the beginning of the sentence.
4. AMENDMENT TO ADD SECTION RELATING TO REORGANIZATION AGREEMENT.
Article XVI is hereby amended to add the following immediately after Section
16.11:
"16.12 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."
5. 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.
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
----------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
LIMITED PARTNER:
The Limited Partner, EOTT Energy Operating
Limited 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 the Limited Partner pursuant to
the Powers of Attorney granted
pursuant to Section 1.4.
By: /s/ XXXX X. XXXXX
----------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
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EXHIBIT C
AMENDMENT NO. 2 TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
EOTT ENERGY CANADA LIMITED PARTNERSHIP
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF EOTT ENERGY CANADA LIMITED PARTNERSHIP (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 14.1(d) of the Amended and Restated Agreement of Limited Partnership of
EOTT Energy Canada Limited Partnership dated as of March 24, 1994 (the
"Partnership Agreement").
WHEREAS, Section 14.1(d)(i) of the Partnership Agreement provides that
the Limited Partner agrees that the General Partner (pursuant to its powers of
attorney from the Limited Partner), without the approval of the Limited Partner,
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 Partner in any material
respect; and
WHEREAS, the General Partner has determined that the changes reflected
in this Amendment will be beneficial to the Limited Partner and do not adversely
affect the Limited Partner in any material respect;
NOW, THEREFORE, 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, the MLP, EOTT Energy Corp., EOTT Energy
General Partner, L.L.C., EOTT Energy Operating Limited Partnership and EOTT
Energy Pipeline Limited Partnership.
2. AMENDMENT TO CHANGE THE GENERAL PARTNERS' INTEREST. The Partnership
Agreement is hereby amended to provide that the 1% general partner interest in
the Partnership owned by EOTT Energy Corp. is hereby converted into a .01%
general partner interest and a .99% limited partner interest. The definition of
the term "Percentage Interest" in Article II of the Partnership Agreement is
hereby amended, effective immediately following consummation of the transactions
contemplated by Articles II, III and IV of the Reorganization Agreement, as
follows: the term "1%" is amended to read "0.01%" and the term "99%" is hereby
amended to read "99.99%."
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3. AMENDMENTS RELATING TO REORGANIZATION AGREEMENT. Section 10.2 of the
Partnership Agreement is hereby amended to read as follows: "Except as provided
in the Reorganization Agreement, the General Partner may not transfer its
interest in the Partnership without the written consent of the Limited Partner."
The second sentence of Section 10.3 is hereby amended to add the phrase "Except
as provided in the Reorganization Agreement," at the beginning of the sentence.
Section 12.1(b)(iii) is hereby amended to eliminate the proviso therein. The
first sentence of Section 12.3 is hereby amended to add the phrase "Except as
provided in the Reorganization Agreement," at the beginning of the sentence.
4. AMENDMENT TO ADD SECTION RELATING TO REORGANIZATION AGREEMENT.
Article XVI is hereby amended to add the following immediately after Section
16.11:
"16.12 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."
5. 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.
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
----------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
LIMITED PARTNER:
The Limited Partner, EOTT Energy Operating
Limited 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 the Limited
Partner pursuant to the Powers of
Attorney granted pursuant to
Section 1.4.
By: /s/ XXXX X. XXXXX
----------------------------------------
Xxxx X. Xxxxx
President and Chief Operating Officer
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EXHIBIT D
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);
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(c) Section 5.1(b)(iii);
(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
----------------------------------------
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