AMENDMENT NO. 2 TO THE FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ENTERPRISE PRODUCTS PARTNERS L.P.
Exhibit
10.1
AMENDMENT
NO. 2 TO THE FIFTH AMENDED AND RESTATED
AGREEMENT
OF LIMITED PARTNERSHIP OF
ENTERPRISE
PRODUCTS PARTNERS L.P.
This Amendment No. 2 (this “Amendment
No. 2”) to the Fifth Amended and Restated Agreement of Limited
Partnership of Enterprise Products Partners L.P. dated effective as of August 8,
2005 (the “Partnership
Agreement”) is hereby adopted by Enterprise Products GP, LLC, a Delaware
limited liability company (the “General
Partner”), as general partner of the Partnership. Capitalized
terms used but not defined herein are used as defined in the Partnership
Agreement.
WHEREAS, the General Partner
desires to amend the Partnership Agreement to make certain adjustments to
certain allocation provisions and the definitions related thereto, which
adjustments shall be effective in accordance with Section 761(c) of the Code as
of January 1, 2007; and
WHEREAS, acting pursuant to
the power and authority granted to it under Section 13.1(d) of the
Partnership Agreement, the General Partner has determined that the following
amendment to the Partnership Agreement does not require the approval of any
Limited Partner.
NOW THEREFORE, the General
Partner does hereby amend the Partnership Agreement as follows:
Section 1.
Attachment I referred to in Section 1.1 is hereby amended to amend and restate
the following definitions:
“Net Termination Gain” means,
for any taxable year, the sum, if positive, of all items of income, gain, loss
or deduction recognized by the Partnership (a) after the Liquidation Date or (b)
upon the sale, exchange or other disposition of all or substantially all of the
assets of the Partnership Group, taken as a whole, in a single transaction or a
series of related transactions (excluding any disposition to a member of the
Partnership Group). The items included in the determination of Net
Termination Gain shall be determined in accordance with Section 5.5(b) and shall
not include any items of income, gain or loss specially allocated under Section
6.1(d).
“Net Termination Loss” means,
for any taxable year, the sum, if negative, of all items of income, gain, loss
or deduction recognized by the Partnership (a) after the Liquidation Date or (b)
upon the sale, exchange or other disposition of all or substantially all of the
assets of the Partnership Group, taken as a whole, in a single transaction or a
series of related transactions (excluding any disposition to a member of the
Partnership Group). The items included in the determination of Net
Termination Loss shall be determined in accordance with Section 5.5(b) and shall
not include any items of income, gain or loss specially allocated under Section
6.1(d).
Section 2.
Sections 5.5(d) is hereby amended to read in full as follows:
1
(i) In accordance with Treasury
Regulation Section 1.704-1(b)(2)(iv)(f), on an issuance of additional
Partnership Interests for cash or Contributed Property, the issuance of
Partnership Interests as consideration for the provision of services or the
conversion of the General Partner’s Combined Interest to Common Units pursuant
to Section 11.3(c), the Capital Accounts of all Partners and the Carrying Value
of each Partnership property immediately prior to such issuance shall be
adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss
attributable to such Partnership property, as if such Unrealized Gain or
Unrealized Loss had been recognized on an actual sale of each such property
immediately prior to such issuance for an amount equal to its fair market value,
and had been allocated to the Partners at such time pursuant to Section 6.1(c)
in the same manner as any item of gain or loss actually recognized following an
event giving rise to the dissolution of the Partnership would have been
allocated. In determining such Unrealized Gain or Unrealized Loss,
the aggregate cash amount and fair market value of all Partnership assets
(including cash or cash equivalents) immediately prior to the issuance of
additional Partnership Interests shall be determined by the General Partner
using such reasonable method of valuation as it may adopt; provided, however,
that the General Partner, in arriving at such valuation, must take fully into
account the fair market value of the Partnership Interests of all Partners at
such time. The General Partner shall allocate such aggregate value
among the assets of the Partnership (in such manner as it determines in its
discretion to be reasonable) to arrive at a fair market value for individual
properties.
(ii) In accordance with Treasury
Regulation Section 1.704-1(b)(2)(iv)(f), immediately prior to any actual or
deemed distribution to a Partner of any Partnership property (other than a
distribution of cash that is not in redemption or retirement of a Partnership
Interest), the Capital Accounts of all Partners and the Carrying Value of all
Partnership property shall be adjusted upward or downward to reflect any
Unrealized Gain or Unrealized Loss attributable to such Partnership property, as
if such Unrealized Gain or Unrealized Loss had been recognized on an actual sale
of each such property immediately prior to such distribution for an amount equal
to its fair market value, and had been allocated to the Partners, at such time,
pursuant to Section 6.1(c) in the same manner as any item of gain or loss
actually recognized following an event giving rise to the dissolution of the
Partnership would have been allocated. In determining such Unrealized
Gain or Unrealized Loss, the aggregate cash amount and fair market value of all
Partnership assets (including cash or cash equivalents) immediately prior to a
distribution shall (A) in the case of an actual distribution that is not made
pursuant to Section 12.4 or in the case of a deemed distribution, be determined
and allocated in the same manner as that provided in Section 5.5(d)(i) or (B) in
the case of a liquidating distribution pursuant to Section 12.4, be determined
and allocated by the Liquidator using such reasonable method of valuation as it
may adopt.
Section 3.
Section 6.1(d) is hereby amended to add in full as follows:
(xii) Corrective and Other
Allocations.
A. In the event the Carrying
Value of Partnership property is adjusted pursuant to Section 5.5(d), the
provisions of this Section 6.1(d)(xii) are intended, to the extent possible over
time, to cause the respective Capital Accounts of the Partners, taking into
account the Incentive Distributions, to be in the same relative proportion had
the prior adjustment to the
2
Carrying
Value of Partnership property not occurred. To effectuate the intent
of this Section 6.1(d)(xii), the General Partner may allocate that portion of
the deductions, cost recovery or amortization attributable to an adjustment to
the Carrying Value of a Partnership property pursuant to Section 5.5(d) in the
same manner that the Unrealized Gain or Unrealized Loss attributable to such
property is allocated pursuant to Section 5.5(d).
B. In making the allocations
required under this Section 6.1(d)(xii), including the allocations that may
result from the sale or other taxable disposition of any Partnership property
that has been subject to an adjustment to the Carrying Value of such Partnership
property, the General Partner may apply whatever conventions or other
methodology it determines will satisfy the purpose of this Section
6.1(d)(xii).
Section 4.
Except as hereby amended, the Partnership Agreement shall remain in full force
and effect.
Section 5. This
Amendment No. 2 shall be governed by, and interpreted in accordance with, the
laws of the State of Delaware, all rights and remedies being governed by such
laws without regard to principles of conflicts of laws.
IN WITNESS WHEREOF, this
Amendment No. 2 has been executed as of April 14, 2008.
|
GENERAL
PARTNER:
|
||
|
ENTERPRISE
PRODUCTS GP, LLC
|
||
|
By: /s/ Xxxxxxx X.
Xxxxx
|
||
|
Xxxxxxx X.
Xxxxx
|
||
|
President and Chief Executive
Officer
|
3
