AMENDMENT NO. 4 TO THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BREITBURN ENERGY PARTNERS L.P.
Exhibit
3.1
Execution
Version
AMENDMENT
NO. 4
TO
THE
OF
This
Amendment No. 4 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 April 5, 2010 (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 (the “First Amended LP
Agreement”), as amended by Amendment No. 1 thereto (“Original Amendment No. 1”),
dated as of June 17, 2008, Amendment No. 2 thereto (“Amendment No. 2”), dated as of
April 7, 2009, and Amendment No. 3 thereto (collectively with Original Amendment
No. 1 and Amendment No. 2, the “Amendments”), dated as of
August 27, 2009 (as so amended, the “LP Agreement”).
WITNESSETH
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 Partnership was
involved in litigation (the “Litigation”) filed by
Quicksilver Resources Inc. (“Quicksilver”) in the 48th
District Court, Tarrant County, Texas (the “Court”) relating to, among
other things, the adoption of Section 13.4(b) of the LP Agreement;
WHEREAS, the first annual
meeting of the Limited Partners, which was originally intended to be held in
2009, was postponed as a result of the Litigation and is now expected to be held
in 2010;
WHEREAS, at that first annual
meeting, it is expected that an election will be held to elect successors to the
Directors whose term was originally intended to expire in 2009 (i.e., the Class I Directors)
and the Directors whose term was originally intended to expire in 2010 (i.e., the Class II
Directors);
WHEREAS, the Class I Directors
to be elected at the first annual meeting shall be elected for a term that will
expire three years after the year in which the initial annual meeting was
originally intended to be held (i.e., 2012), and the Class II
Directors to be elected at the first annual meeting shall be elected for a term
that will expire three years after the year in which the annual meeting for
their election was originally intended to be held (i.e., 2013);
WHEREAS, in connection with
the settlement of the Litigation, the Partnership, BreitBurn GP, LLC,
Quicksilver, Provident Energy Trust, Xxxxxxx X. Xxxxxxxxxxx and Xxxxxxx X.
Xxxxxxxx entered into a Settlement Agreement dated April 5, 2010 (the “Settlement Agreement”),
pursuant to which the Partnership and Quicksilver agreed to the dismissal of the
Litigation in exchange for mutual promises and covenants;
WHEREAS, as contemplated by
the Settlement Agreement, the Court entered an order declaring that the
Amendments have been validly adopted and constitute valid and binding amendments
to the First Amended LP Agreement;
WHEREAS, the Court entered an
order declaring that Revised Amendment No. 1 to the First Amended LP Agreement,
dated as of December 29, 2009 (“Revised Amendment No. 1”) was
not validly adopted and is not part of the LP Agreement, and the General Partner
has withdrawn Revised Amendment No. 1 and, as a result, Revised Amendment No. 1
is invalid and of no force or effect; and
WHEREAS, the General Partner
desires to amend Section 13.4 of the LP Agreement to address certain of the
mutual obligations of the Partnership and Quicksilver contained in the
Settlement Agreement.
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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AMENDMENT.
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Section
13.4 of the LP Agreement is hereby amended by inserting a new subsection (c)
thereof that reads as follows:
“(c) Any vote, consent or
other action taken by or on behalf of Quicksilver Resources Inc. (“Quicksilver”)
in breach of Sections 6.5, 7.1 or 7.2 of the Settlement Agreement, dated as of
April 5, 2010, among the Partnership, BreitBurn GP, LLC, Quicksilver, Provident
Energy Trust, Xxxxxxx X. Xxxxxxxxxxx and Xxxxxxx X. Xxxxxxxx, shall, to the
extent in breach, be null and void and shall not be counted or considered as a
vote, consent or other action. For the avoidance of doubt,
Quicksilver shall not, as a result of the foregoing, be considered a separate
class of Limited Partner and the Common Units held by Quicksilver shall not be
considered a separate class of Common Units.”
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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 their respective successors and
assigns.
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.
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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.
5. Effectiveness. This
Amendment shall be effective as of the Effective Time (as defined in the
Settlement Agreement).
[SIGNATURE
PAGE FOLLOWS]
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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. Xxxxxxxx
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Name:
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Xxxxxxx X. Xxxxxxxx | ||
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Title:
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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. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title:
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Chief
Executive
Officer
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