EXHIBIT 10.23
PAGES WHERE CONFIDENTIAL TREATMENT HAS BEEN REQUESTED ARE STAMPED
`CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
SEPARATELY FILED WITH THE COMMISSION,' THE APPROPRIATE SECTION HAS
BEEN MARKED AT THE APPROPRIATE PLACE AND IN THE MARGIN WITH A STAR (*).
WEST TEXAS LPG PIPELINE
LIMITED PARTNERSHIP AGREEMENT
WEST TEXAS LPG PIPELINE
LIMITED PARTNERSHIP AGREEMENT
TABLE OF CONTENTS
1. Definitions
2. Creation of Partnership; Name
3. Principal Office
4. Duration of the Partnership
5. Purposes
6. Partnership Property
6.1 Contribution of Existing Property
6.2 Title to Property
6.3 Assumption of Rights and Obligations Applicable to System
7. Warranties of Partners
8. Management
8.1 Partnership Committee
8.2 Officials of the Partnership Committee and Terms of Service
Thereon
8.3 General Provisions Regarding the Partnership Committee
8.4 Meetings of the Partnership Committee
8.5 Authority of the Partnership Committee
8.6 Voting
8.7 No Management by Individual Partners
9. Book Capital Accounts and Capital Contributions
9.1 Book Capital Accounts of the Partners
9.2 Capital Contributions
10. Distributions
10.1 Allocation
10.2 Distributions
12. Audit
13. Partner's Covenant Against Encumbrances and Attachments
14. Limitation on Partner's Liabilities Regarding Partnership
Contracts
15. Cross Indemnification
15.1 Indemnity
15.2 Reimbursement
15.3 Sharing of Uncovered Losses
16. Tax Provisions
16.1 Status of Partnership
16.2 Tax Returns, Proceedings and Elections
16.3 Tax Definitions
16.4 Tax Allocations
17. Transfer of Ownership Interests
17.1 Limitation on Assignments
17.2 Permitted Transfers
17.3 Transfers to Affiliates
17.4 Limitation on Dispositions to Avoid Termination
17.5 Relative Liabilities of Old and New Partners
18. Extensions to and Expansion of the System
19. Default by Partners
19.1 Failure to Make Contributions
19.2 Expulsion of Partners
19.3 Treatment of Book Capital Account of Expelled Partner
19.4 Other Obligations of Expelled Partner
20. Dissolution and Winding Up of the Partnership
20.1 Dissolution
20.2 Continuance of Business After Dissolution
20.3 Liquidation of the Partnership
20.4 Winding Up of the Partnership
21. Further Assurance
22. Waiver
23. Independent Conduct
24. Applicable Law
25. Subject to Applicable Law
26. Severability
27. Headings
28. Binding Effect
29. Benefits of Agreement Restricted to Parties
30. Counterparts
31. Entire Agreement
32. Amendment
33. Notices
EXHIBIT A - Ownership Percentages
EXHIBIT B - Map of the System
EXHIBIT C - Financial Responsibility Requirements
EXHIBIT D - Enabling Agreement
EXHIBIT E - Tax Matters
WEST TEXAS LPG PIPELINE
LIMITED PARTNERSHIP AGREEMENT
THIS IS AN AGREEMENT, dated as of September 1, 1996, between WTLPS, Inc.,
a Delaware corporation (hereinafter "WTLPS"), WPC LP, Inc., a Delaware
corporation (hereinafter "WPCLP"), Chevron Raven Ridge Pipe Line Company, a
Delaware corporation (hereinafter "CRR"), and Chevron Pipe Line Company, a
Delaware corporation (hereinafter "CPL").
WHEREAS, the Partners desire to create a Limited Partnership to own a
common carrier pipeline system for the transportation of LPG from various points
in New Mexico and Texas to various points in Texas.
THEREFORE, the Partners hereby agree as follows:
1. Definitions
As used in this Agreement the following words and terms shall have
the meanings set forth below.
1.1 "Act" means the Texas Revised Limited Partnership Act, as set
forth in R.C.S., Art. 6132a-1, as amended from time to time.
1.2 "Affiliate" means, with respect to any Person, (i) any other
Person which beneficially owns, directly or indirectly, 50% or more of such
Person's stock or 50% or more of the ownership interest entitled to vote in such
Person, or (ii) any other Personas to which 50% or more of the voting stock or
50% or more of the ownership interest entitled to vote therein, is beneficially
owned, directly or indirectly, either by such Person or by an Affiliate of such
Person as defined in the preceding clause (i).
1.3 "Agreement" means this West Texas LPG Pipeline Limited
Partnership Agreement.
1.4 "Book Capital Account" means the account described in Section
9.1.
1.5 "Business Day" means a day on which the Federal Reserve Bank in
New York City is open for business.
1.6 "Calendar Year" means a year beginning on the first day of
January and ending on the thirty-first day of December, except that for the
first year of operation, the Calendar Year shall begin on the date on which the
Partnership is established and end on December 31, 1996.
1.7 "CPL" means Chevron Pipe Line Company.
1.8 "CRR" means Chevron Raven Ridge Pipe Line Company.
1.9 "Credit Worthy Affiliate" means an Affiliate of a potential new
Partner, which meets the Financial Responsibility Requirements set forth in
Exhibit C and which has executed an Enabling Agreement as set forth in Exhibit
D.
1.10 "Current Liabilities" means the current liabilities described in
Section 18.3.
1.11 "Dissolving Partner" or "Dissolving Partners" means the Partner
or Partners who cause a dissolution of the Partnership as described in Article
19.
1.12 "Distributable Cash" means the gross cash proceeds from
Partnership operations (including sales and dispositions of property in the
ordinary course of business) less the portion thereof used to pay or establish
reasonable reserves approved by the Partnership Committee for all Partnership
expenses, Guaranteed Payments, debt payments, capital improvements, replacements
and contingencies, all as determined by the Partnership Committee. Distributable
Cash shall not be reduced by depreciation, amortization, cost recovery
deductions or
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similar allowances, but shall be increased by any reductions of cash reserves
previously established.
1.13 "Effective Date" means the date on which this Agreement is
executed by all of the parties listed first above.
1.14 "Enabling Agreement" means the agreement attached hereto as
Exhibit D.
1.15 "Fiscal Year" means the fiscal year of the Partnership as
designated in Article 11, except that for the first year of operation, the
Fiscal Year shall begin on the date on which the Partnership is established and
end on December 31, 1996.
1.16 "GAAP" means generally accepted accounting principles.
1.17 "General Partner" means WTLPS, CPL, or any Person who hereafter
becomes a General Partner by succession of interest hereunder, or by change of
classification under the provisions of Section 8.8.
1.18 "Indemnifying Partner" means each Partner undertaking the
indemnity obligations described in Sections 15.1 and 15.2.
1.19 "LPG" means liquefied petroleum gas or Petroleum Products.
1.20 "Limited Partner" means WPCLP, CRR, or any Person who hereafter
becomes a Limited Partner by succession of interest hereunder or by change of
classification under the provisions of Section 8.8.
1.21 "Member" means a Partner's designated representative on the
Partnership Committee.
1.22 "WTLPS" means WTLPS, Inc..
1.23 "WPCLP" means WPC LP, Inc..
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1.24 "Non-Current Liabilities" means the non-current liabilities
described in Section 19.3.
1.25 "Operating Agreement" means the agreement for the operation of
the System.
1.26 "Operator" means the Person designated as the operator of the
System in the Operating Agreement.
1.27 "Ownership Interest" means the respective ownership percentage
of a Partner in the Partnership as set forth in Exhibit A hereto, as amended
from time to time.
1.28 "Partner" means any party to this Agreement, including any
Person who may hereafter become a party to this Agreement.
1.29 "Partnership" means the West Texas LPG Pipeline System Limited
Partnership.
1.30 "Partnership Committee" means the committee designated to manage
the affairs of the Partnership in Section 8.1(a) of this Agreement.
1.31 "Person" means any individual, partnership, association, trust,
corporation or other entity.
1.32 "Partnership Property" means all property acquired by the
Partnership by contribution, purchase or otherwise.
1.33 "Petroleum Products" means natural gasoline, ethane, propane,
isobutane, normal butane, and pentane or mixtures thereof, recovered from
gasoline recovery plants and gas recycling plants as defined from time to time
by the Gas Processors Association.
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1.34 "Proposed Transferee" means a Person to whom a Transferring
Partner intends to transfer all or a portion of its Ownership Interest in the
Partnership.
1.35 "Purchase Agreement" means an agreement between a Transferring
Partner and a Proposed Transferee as described in Section 17.2(a).
1.36 "Related Company" means an Affiliate of a Partner which acquires
all or a portion of a Partner's Ownership Interest in the Partnership.
1.37 "Remaining Partners" means all Partners other than a
Transferring Partner.
1.38 "System" means the pipeline system described in Article 5 and
depicted on Exhibit B attached hereto, and any additions or modifications made
thereto after this Agreement becomes effective.
1.39 "Transfer Document" means the document or instrument evidencing
the transfer of an interest in the Partnership Property to the Partnership;
1.40 "Transferring Partner" means a Partner who transfers all or a
portion of its Ownership Interest in the Partnership pursuant to Article 17.
2. Creation of Partnership; Name
The Partners hereby create a limited partnership under the provisions
of the Act, with CPL and WTLPS being the initial General Partners, and WPCLP and
CRR being the initial Limited Partners, and with each Partner initially owning
that percentage of the total Ownership Interests in the Partnership set forth in
Exhibit A attached hereto. Said Ownership Interests shall be amended from time
to time to reflect assignments and transfers of a Partner's Ownership Interest
in the Partnership as provided for herein. At all times, the sum of all
Partners' Ownership
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Interests shall total 100 percent. The name of the Partnership shall be West
Texas LPG Pipeline Limited Partnership.
3. Principal Office
The principal office of the Partnership shall be maintained at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or at such other address as
agreed by the Partnership Committee.
4. Duration of the Partnership
The Partnership shall commence as of the Effective Date and shall
terminate, unless sooner terminated pursuant to this Agreement or extended by
agreement of the Partners, on December 31, 2046. This Agreement shall terminate
when the Partnership has been wound up and liquidated, all assets of the
Partnership have been distributed or disposed of, and all liabilities and
obligations of the Partnership (and of each Partner as they relate to the
Partnership) have been fully discharged, satisfied or provided for as provided
in Article 20.
5. Purposes
The Partnership is created for the purposes of: (a) owning the System
for the common carrier transportation of LPG from various points in New Mexico
and Texas to various points in Texas as depicted on the attached Exhibit B, as
it may be amended from time to time; (b) causing the System to be operated,
maintained, repaired and, if appropriate in the judgment of and directed by the
Partnership Committee, expanded, extended, changed in direction or use,
replaced, removed
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
or abandoned in place; (c) causing any facilities, property or property
rights, equipment, or services related to or required in connection with any
of the above described activities to be procured, constructed, operated,
maintained, repaired, replaced, sold, disposed of, removed, or abandoned in
place; (d) any other purposes related to and necessary or appropriate in the
judgment of the Partnership Committee to implement any of the foregoing; and
(e) any other legal purpose unanimously approved by the Partners.
6. Partnership Property
6.1 Contribution of Existing Property. The initial contributions of
each Partner to the Partnership shall be their respective shares of undivided
interests in and to the property described elsewhere in this Agreement as the
Partnership Property; and CPL and CRR shall pay to the Partnership (in
proportion to their respective Ownership Interest) the entire initial working
* capital needed to operate the System in the amount of REDACTED; provided,
however, in the event WTLPS or WPCLP withdraws from the Partnership, other
than as a result of an assignment to an Affiliate as provided herein, at such
time of withdrawal, WTLPS or WPCLP, as the case may be, shall reimburse CPL
and CRR for its share of such initial contribution of working capital. Should
WTLPS or WPCLP dispose of a portion of its Ownership Interest in the
Partnership, at such time of disposition, WTLPS or WPCLP shall reimburse CPL
and CRR for the proportionate share of the initial contribution of working
capital equal to the percentage of Ownership Interest disposed.
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6.2 Title to Property. The title to all Partnership Property shall be
held in the name of the Partnership unless otherwise approved by the Partnership
Committee; provided, however, licenses, permits, easements and rights-of-way
necessary for the operation of the System may be held in the name of the
Operator who will act as agent on behalf of the Partnership.
6.3 Assumption of Rights and Obligations Applicable to System. The
Partnership shall be bound by the terms of that certain Rate Case Settlement
Agreement approved by the Federal Energy Regulatory Commission on April 30,
1996, Docket No. IS94-32-000 relating to the System and applicable to CPL or
CRR subsequent to the Effective Date of the Partnership Agreement but shall not
assume any reimbursement obligations arising out of the Rate Case Settlement
Agreement covering time periods prior to the Effective Date. The Partnership
shall adopt the tariffs for the System in effect on the Effective Date of this
Agreement.
7. Warranties of Partners
7.1 Organization
(a) Each Partner, upon becoming a party to this Agreement, represents,
warrants and agrees that:
(b) It is a corporation duly incorporated, validly existing, and in
good standing under the laws of its jurisdiction of incorporation;
(c) It will not voluntarily cause a dissolution or termination of the
Partnership by failure to maintain its corporate existence or by any other act
or omission to act;
(d) The execution, delivery and performance of this Agreement have
been duly authorized, and this Agreement, when executed and delivered, will be
valid and binding on it; and
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(e) The execution and delivery of this Agreement does not contravene
any provision of, or constitute a default under, any relevant material
indenture, mortgage or other agreement binding on such Partner or any valid
order of any court, commission or governmental agency to which such Partner is
subject.
8. Management
8.1 Partnership Committee
8.1(a) Composition of the Committee. The Partnership shall be
managed by a Partnership Committee composed of one Member representing each
Partner. Each Partner shall designate its Member of the Partnership Committee,
whose vote shall be based on that Partner's Ownership Interest. The Members of
the Partnership Committee shall be designated by the Partners by notice to each
other immediately after the Effective Date, and the Members shall serve until
their successors' designations shall become effective. A person may be
designated by more than one Partner as a Member to represent each such Partner
and such Member shall be regarded as representing more than one Partner for
purposes of a required quorum under Section 8.4.
8.1(b) Replacement of Committee Members. If any Member of the
Partnership Committee dies, resigns, or becomes incapacitated, the Partner which
designated such Member shall designate his or her successor, the term of such
successor to commence immediately, and any Partner may withdraw the designation
of the Member of the Partnership Committee which it designated and designate a
replacement (whose term shall commence immediately) at any time, with or without
cause, by giving notice of the withdrawal and replacement to the other Members
of the Partnership Committee.
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8.1(c) Changes in the Voting Interest of Committee Members Due to
Changes in Ownership. In the event of any changes in the relative Ownership
Interests of the Partners in the Partnership effective during the course of a
Calendar Year, the vote of each Member of the Partnership Committee shall
reflect such change effective upon the receipt of notice by the Partnership that
a change in the Ownership Interests of the Partners has occurred.
8.1(d) Special Legal and Regulatory Obligations of Member. All
Members of the Partnership Committee are under a special legal obligation to
protect confidential information, including but not limited to shipper
information, against disclosure or against use by the Partner or any other party
for any purpose other than the direct business of the Partnership. Each Partner
shall be obligated to take such steps as are necessary to ensure that such
confidential information is not disclosed or used otherwise than as allowed by
law. No Member shall be allowed to participate in any business of the
Partnership in the event that such participation would compromise the
Partnership's obligation to safeguard such information.
8.2 Officials of the Partnership Committee and Terms of Service Thereon
8.2(a) Election of-Partnership Officials. The Partnership Committee
shall elect a Chairman and one or more Vice-Chairmen from among those Members
designated by a General Partner and a Secretary and a Treasurer, who need not be
Members, immediately after being created and thereafter at its first meeting
during each Calendar Year. Each Chairman, Vice-Chairman, Secretary and Treasurer
shall serve until his or her successor is elected and qualified or until his or
her earlier resignation, removal by vote of the Partnership Committee, or, in
the case of the Chairman or Vice-Chairmen, his or her earlier departure from
membership in the Partnership Committee, or in the event that the General
Partner that designated such Member ceases to be a General Partner hereunder.
An individual may hold more than one office.
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8.2(b) Duties of the Chairman. The Chairman shall preside over all
meetings of the Partnership Committee, shall call regular meetings of the
Partnership Committee, may call special meetings of the Partnership Committee
and shall have other duties as specified elsewhere in this Agreement.
8.2(c) Duties of the Vice-Chairman. The Vice-Chairman present with
the longest continuous service as such shall preside over meetings of the
Partnership Committee in the absence of the Chairman, and in the event the
Chairmanship becomes vacant, the Vice Chairman with the longest continuous
service as such shall serve as Chairman until a new Chairman is elected.
8.2(d) Duties of the Secretary. The Secretary shall record minutes
of the Partnership Committee meetings, shall give notice of regular and special
meetings of the Partnership Committee when directed to do so pursuant to Section
8.4 hereof, and shall accept and notify all Partnership Committee Members of any
resignations of Partnership Committee Members or Partnership officials (other
than his own resignation which shall be accepted by the Chairman). The Secretary
shall also cause the Partnership to comply with requirements under the Assumed
Business or Professional Name Act of the Business and Commerce Code of the State
of Texas.
8.2(e) Duties of the Treasurer. The Treasurer shall have general
supervision of the funds, securities, notes, drafts, acceptances, and other
commercial paper and evidences of indebtedness of the Partnership and shall
insure that funds belonging to the Partnership are kept on deposit in such
banking institutions or invested in securities as the Partnership Committee may
from time to time direct. The Treasurer shall insure that accurate accounting
records are kept, and shall render statements of income and of financial
position of the
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Partnership to the Partnership Committee and each Partner at any time upon
reasonable request. The Treasurer shall perform other duties commonly incident
to such office.
8.3 General Provisions Regarding the Partnership Committee.
8.3(a) Additional Authority. The Chairman, Vice-Chairmen, Secretary
or Treasurer and the incumbents of any other similar positions which the
Partnership Committee may elect to create, may be given other duties either of a
general or specific nature by the Partnership Committee, but, in the absence of
any such grant of authority, shall not be deemed to have any inherent authority
to act for the Partnership except as specifically set forth above or elsewhere
in this Agreement.
8.3(b) Compensation. The officials of the Partnership shall receive
no compensation from the Partnership. All costs of each Member of the
Partnership Committee arising out of his attendance at Partnership Committee
meetings or conduct of Partnership business shall be borne by the Partner he
represents. The Partnership shall indemnify and save harmless the Members of
the Partnership Committee and the officials of the Partnership against all
actions, claims, demands, costs and liabilities arising out of the acts (or
failure to act) of any such Members and officials in good faith within the scope
of their authority in the course of the Partnership's business, and such Persons
shall not be liable for any obligations, liabilities or commitments incurred by
or on behalf of the Partnership as a result of any such acts or failure to act.
8.3(c) Insurance. To the extent that such insurance is commercially
available, the Partnership Committee may authorize the Operator to purchase and
maintain insurance on behalf of any Person who is or was a Member of the
Partnership Committee, or an
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official of the Partnership, or who is or was serving at the request of the
Partnership as agent of the Partnership, against any liability asserted against
or incurred by him in any such capacity, or arising out of his status as such,
whether or not the Partnership would have the power to indemnify him against
such liability under the provisions of the preceding Section 8.3(b).
8.4 Meetings of the Partnership Committee. The Partnership Committee
may hold meetings either within or without the State of Texas. Regular meetings
of the Partnership Committee shall be held not less frequently than once each
calendar quarter at such times and places as the Partnership Committee
determines. Special meetings of the Partnership Committee may be called by the
Chairman of the Partnership Committee on ten (10) Business Days notice to each
Member of the Partnership Committee and shall be called by the Chairman or
Secretary of the Partnership Committee on like notice upon request of any Member
of the Partnership Committee representing at least forty nine percent (49%) of
the Ownership Interests. Meetings of the Partnership Committee may be held by
conference telephone call on two (2) Business Days notice. Each notice of a
meeting or conference call shall state the time and place of the meeting or the
conference call and the purpose or purposes thereof. Unless otherwise waived in
writing by all Members of the Partnership Committee, only matters included in
the notice of the meeting or conference call can be considered for a vote by the
Partnership Committee. Any requirements of notice will be deemed waived by any
Member of the Partnership Committee who attends a Partnership Committee meeting
or participates in a conference call unless such Member attends or participates
solely to protest the lack of proper notice. Any requirement of notice may be
waived by any Member in writing, which waiver or waivers shall be attached by
the Secretary of the Partnership Committee to the minutes of the meeting of the
Partnership Committee for which such waiver is effective. Provided that proper
notice is either given or duly waived by all
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Members of the Partnership Committee, the presence of at least two (2) Members
of the Partnership Committee representing each of the General Partners, and
representing at least fifty-one percent (51%) of the Ownership Interests shall
be sufficient to constitute a quorum for the transaction of business. The
Partnership Committee may act by the unanimous written consent of all Members of
the Partnership Committee (which may be signed in counterpart) in lieu of
holding a meeting; such unanimous written consent shall be effective when filed
with the Secretary of the Partnership Committee. Notice to Members of the
Partnership Committee shall be as provided in Article 32 hereof.
8.5 Voting of the Partnership Committee - Simple Majority. The
operation and maintenance of the System shall be performed by the Operator
pursuant to the Operating Agreement to be approved by the Partnership Committee.
The Partnership Committee shall have authority to oversee the operations of
Operator as provided in the Operating Agreement and, except as such authority
may be limited under the terms of this Agreement, the Partnership Committee
shall have full power and authority to manage the entire business and affairs of
the System. Without limiting the generality of the foregoing, on a simple
majority vote of the Member(s) representing fifty one percent (51%) of the
Ownership Interest, the Partnership Committee is authorized to:
(a) Oversee the activities of the Operator,
(b) Designate, in writing, agents authorized to act on behalf of
the Partnership, whose designations may be either specific or general; provided,
that the Partnership Committee may not authorize any agent to act with greater
authority on behalf of the Partnership than the Partnership Committee itself
has,
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(c) Undertake contractual commitments in the ordinary course of
business,
(d) Acquire, sell, lease or otherwise dispose of real and
personal property in the ordinary course of business,
(e) Elect Partnership Committee officials,
(f) Establish, amend and cause the filing of tariffs,
(g) Give notice of default to a defaulting Partner,
(h) Expel a defaulting Partner as provided in Section 19.2, or
(i) Perform or authorize any other act on behalf of the
Partnership not specifically delegated to the Operator.
8.6 Voting of the Partnership - Supermajority. Without limiting
the generality of the foregoing section, on a vote of Members representing a
minimum of sixty-seven percent (67%) of the Ownership Interest, the Partnership
Committee is authorized to:
(a) Acquire, encumber, sell, lease, or otherwise dispose of all
or substantially all of the real and personal property assets of the
Partnership;
(b) Terminate the business or dissolve the Partnership or
appoint a liquidating trustee other than the Operator;
(c) Expand the capacity of the System or extend the System as
provided in Article 18,
(d) Authorize the use of the System for transportation of
substances other than LPG,
(e) Authorize cash distributions in a manner other than as set
forth in Section 10 or amend the provisions of Section 10,
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(f) Consider, revise, approve and reject operating and capital
budgets and AFEs recommended by the Operator as provided in the Operating
Agreement,
(g) Authorize the creation of an Audit and other subcommittees
to advise the Partnership Committee,
(h) Appoint or change the Operator,
(i) Authorize, or refuse to authorize, the Operator to settle
claims brought against the Partnership recommended by the Operator in amounts
greater than $50,000 or the filing of lawsuits the Operator proposes the
Partnership bring against third parties, other than routine debt collection
actions,
(j) Change the provisions of Section 16 and Exhibit E,
(k) Borrow money or obtain any advance or credit in any form
(other than trade credit) or make a loan or advance or give credit, other than
normal trade credit,
(l) Give any guarantee or indemnity or security in respect of any
liabilities or obligations of any person other than the Partnership ,
(m) Amend the Partnership,
(n) Create or dispose of any subsidiary of the Partnership or
any interest therein,
(o) Enter into any partnership, joint venture or profit sharing
agreement or arrangement,
(p) Enter into any material contract or arrangement outside of
the ordinary course of business,
(q) Factor or assign any of the Partnership's accounts,
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(r) Except as otherwise provided herein, do or permit or suffer
to be done any act or thing whereby the Partnership may be wound up, liquidated
or dissolved (whether voluntarily or compulsorily),
(s) Acquire or make any investment in another company,
partnership or business,
(t) Change the nature or scope of the Partnership's business or
commence any new business not being ancillary or incidental to the Partnership's
business,
(u) Make any claim, disclaimer, surrender, election of consent
of a material nature for tax purposes,
(v) Require the Partners to make any additional capital
contributions,
(w) Resolve audit disputes,
(x) Appoint a liquidating trustee, or
(y) Change of classification of a General Partner to a Limited
Partner, or of a Limited Partner to a General Partner or interest thereof.
8.7 No Management by Individual Partners. All acts of management of
the Partnership shall be taken by the Partnership Committee, acting pursuant to
this Agreement, by agents duly authorized in writing by the Partnership
Committee or by the Operator acting pursuant to the Operating Agreement. No
individual Partner or Member of the Partnership Committee shall act or purport
to act as an agent of or otherwise on behalf of the Partnership unless, and then
only to the extent, authorized in writing to do so by the Partnership Committee.
Limited Partners shall not participate in the management or control of the
business except as otherwise permitted by the Act.
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8.8 Change of Classification of Partnership Interest. No change in
classification hereunder of any Ownership Interest of a General Partner to a
classification of a Limited Partner, nor any change in classification of any
Ownership Interest of a Limited Partner to a classification of a General Partner
shall be effective hereunder unless such change in classification or designation
shall have first been approved by a vote of the Members under Section 8.6 (y)
above and such change complies with the requirements of the Act.
9. Book Capital Accounts and Capital Contributions
9.1 Book Capital Accounts of the Partners. The Partnership shall
maintain individual Book Capital Accounts for each Partner for financial
accounting purposes. Each Partner's Book Capital Account shall include its
initial capital contributions (a) increased by (i) any additional capital
contributions made by such Partner and (ii) its Ownership Interest in
Partnership income, and (b) decreased by (i) its Ownership Interest in
Partnership losses, (ii) any distributions of Distributable Cash to such Partner
and (iii) the agreed value of any distributions of property made to such Partner
net of any liabilities assumed by such Partner or to which such property is
subject.
9.2 Capital Contributions. Each Partner agrees to contribute any
amount of additional capital specified by the Partnership Committee to fulfill
the purposes, as they may be amended, for which the Partnership is created.
When, subject to the foregoing, the Partnership Committee shall determine
additional capital funds are required from the Partners, it shall specify the
amount to be contributed by each Partner, which amount shall be in proportion to
the Ownership Interest of that Partner in the Partnership, but which shall also
take into account relative amounts then in that Partner's Book Capital Account
to the end that the additional amount to be paid, plus the existing balance in
that Partner's Book Capital Account, shall result in
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a balance in exact proportion to that Partner's Ownership Interest in the
Partnership. Prior to any call for capital contributions, the aggregate loss of
any Partner's profits and losses shall be deducted from that Partner's Book
Capital Account and the aggregate gain of any Partner's profits and losses shall
be added to that Partner's Book Capital Account before the calculation is made
to determine the amount of additional capital required from each Partner.
10. Distributions of Distributable Cash
10.1 Allocation. Any profits and/or losses of the Partnership shall
be shared among the Partners in accordance with their Ownership Interests at the
time such profits and losses are accrued.
10.2 Distributions. Unless otherwise approved by a vote of the
Partners under Section 8.6 (e), the Operator shall distribute to the Partners
Distributable Cash as follows: within thirty days after the end of each calendar
month there shall be distributed in cash to the Partners allocated in accordance
with their Ownership Interest all cash available for distribution, taking into
account the cash account as of the end of the month and any cash activity from
the end of the month to the date of distribution less the reasonable working
capital needs to operate the System.
11. Accounting
The books and records of the Partnership shall be maintained by the
Operator and shall be open to inspection at all reasonable times to any Partner.
Such books shall be maintained in accordance with GAAP utilizing the principles
and practices generally employed in regulated oil pipeline accounting unless any
regulatory agency with jurisdiction over the System or the Partnership shall
rule otherwise. Unaudited financial statements for the Partnership shall be
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prepared and distributed to each Partner and to the Partnership Committee
Members not less often than quarterly; however, income statements shall be
provided monthly. Complete financial statements shall be prepared annually which
shall be audited and certified by independent certified public accountants
selected by the Partnership Committee. The Fiscal Year for the Partnership shall
commence January 1 and end December 31 of each year, except that for the first
year of operation, the Fiscal Year shall begin on the Effective Date and end on
December 31, 1996.
12. Audit
Any Partner, at its sole expense, may audit the Partnership books of
account by giving ten (10) Business Days notice to the Partnership Committee,
the Operator and all other Partners, but the Partnership Committee may decline
to permit more than one (1) such audit to be conducted in any six-month period.
Such audit shall be at the reasonable convenience of the Partner, the Operator
and the Partnership Committee, shall be open for participation by all Partners
and shall be restricted to books of account for the preceding two (2) Fiscal
Years. All audit exceptions shall be resolved in a timely manner. Any audit
exception not resolved within ninety (90) days after the release of the audit
report will become an agenda item at the next Partnership Committee meeting and
shall be resolved at that time. Amounts owed as determined by an audit shall be
paid with interest at the base rate in effect from time to time published by the
First National Bank of Chicago plus two percent. Should the Partnership
Committee fail or be unable to resolve any such audit disputes, the matter shall
be submitted to the dispute resolution procedures set forth in Section 21
hereinafter.
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13. Partner's Covenant Against Encumbrances and Attachments
No Partner shall mortgage, lease, assign, pledge or otherwise encumber
or create a security interest in its Ownership Interest for the benefit of any
creditor of that Partner during the term hereof or permit its Ownership Interest
to be attached or levied upon as a result of any such separate debt of that
Partner unless the security interest documents effecting such rights are
approved by the Partners, which approval shall not be unreasonably withheld;
provided that a Partner may sell all or part of its Ownership Interest, subject
to Article 17 hereof. In the event that the holder of any mortgage, lease,
assignment, pledge or other encumbrance or other security interest in an
Ownership Interest of a Partner exercising its rights hereunder seeks to
exercise foreclosure under such security, the transaction shall be deemed a
transfer of ownership subject to the terms of Section 17 below and the Remaining
Partners may exercise rights of purchase as provided therein.
14. Limitation on Partner's Liabilities Regarding Partnership Contracts
Unless approved by the Partnership Committee, the Partnership or its
authorized agents or representatives shall not enter into any contract, lease,
sublease, note, deed of trust or other obligation unless there is contained
therein an appropriate provision limiting the claims of all parties to such
instruments and other beneficiaries thereunder to the assets of the Partnership
and expressly waiving any rights of such parties and other beneficiaries to
proceed against the Partners individually.
15. Cross Indemnification
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15.1 Indemnity. Each Partner (in each case the "Indemnifying
Partner") shall indemnify and hold all other Partners and, in the case of
Sections 15.1 and 15.2 hereof, the Partnership, harmless from:
(a) Any losses or claims resulting from any act or omission
of such Indemnifying Partner in breach of this Agreement;
(b) Any claim by any third party arising out of the
intentional, willful, or grossly negligent act of such Indemnifying Partner
related directly or indirectly to the Partnership; and
(c) Any judgment against any other Partner arising solely
because of the Indemnifying Partner's liability for Partnership debts under the
laws of the State of Texas (and not because of any other act of the Partner
seeking indemnity), to the extent that the Partner claiming indemnity has borne
greater than its proportionate share of the judgment actually paid.
15.2 Reimbursement. Except as otherwise specifically provided in
this Agreement, all expense, loss, damage, liability or claims (together with
all costs incurred in connection therewith) shall be borne, shared and paid by
the Partners hereto on the basis of their respective Ownership Interests. In the
event any Partner is required for any reason, other than as specified in this
Agreement, to pay a disproportionate share of any obligations of the
Partnership, all other Partners who have not paid their proportionate share
agree to reimburse that Partner to the extent necessary to place the resulting
loss of each Partner into direct proportion to its Ownership Interest. The
provisions of this Article 15 shall survive termination of this Agreement and of
the Partnership.
15.3 Sharing of Uncovered Losses. Should the Partnership incur
losses which are either greater than the amount of, or not covered by any
insurance coverage carried by the
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Partnership, and which are the obligation of the Partnership and not that of
individual Partners, the Partners agree to share such losses in proportion to
their Ownership Interests; provided, however, nothing herein shall be construed
as a waiver of the limitation of liability to third parties afforded limited
partners under the Act.
16. Tax Provisions
16.1 Status of Partnership. The Partners intend that, pursuant to
the provisions of Subchapter K of Chapter 1 of Subtitle A of the Code, the
Partnership will be treated as a Partnership for federal, state, and local
income tax purposes, and each Partner agrees not to elect to be excluded from
the application of all or any part of Subchapter K of the Code or any
corresponding provisions of state or local law.
16.2 Tax Returns, Proceedings and Elections. Tax returns,
proceedings and elections shall be governed by the provisions of Exhibit E
attached. The provisions of Exhibit E may be amended from time to time by vote
of the Partnership Committee as provided in Section 8.6 (j).
16.3 Tax Definitions.
16.3(a) "Adjusted Federal Income Tax Capital Account Deficit"
(Adjusted FIT Capital Account Deficit) means, with respect to any Partner, the
deficit balance in such Partner's FIT Capital Account as of the end of the
relevant Fiscal Year, after giving effect to the following adjustments:
(i) Credit to such FIT Capital Account any amounts which such
Partner is obligated to restore pursuant to any provision of this Agreement or
pursuant to
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Regulations Sections 1.704-1(b)(2)(ii)(c) or is deemed to be obligated to
restore pursuant to the penultimate sentences of Regulations Sections 1.704-
2(g)(1) or 1.704-2(i)(5); and
(ii) Debit to such FIT Capital Account the items
described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-
l(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted FIT Capital Account Deficit is
intended to comply with the provisions of Regulations Section 1.704-
l(b)(2)(ii)(d) and shall be interpreted consistently therewith.
16.3(b) "Code" means the Internal Revenue Code of 1986, as
amended.
16.3(c) "Depreciation" means, for each Fiscal Year or other
period, an amount equal to the depreciation, amortization, or other cost
recovery deduction allowable with respect to an asset for such year or other
period, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes, as described in Treasury
Regulations Section 1.704-1(b)(2)(iv)(g), at the beginning of such year or other
period, Depreciation shall be an amount which bears the same ratio to such
beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however, that if the
federal income tax depreciation, amortization, or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the
Partners.
16.3(d) "Federal Income Tax Capital Account" (FIT Capital
Account) means, with respect to any and each Partner, the FIT Capital Account
maintained for such Person in accordance with Regulation Section 1.704-
l(b)(2)(iv) and the following provisions:
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(i) To each Partner's FIT Capital Account there shall be
credited such Partner's FIT Capital Contributions, such Partner's distributive
share of Profits and any items in the nature of income or gain which are
specially allocated pursuant to Section 16.4(b) or Section 16.4(c) hereof, and
the amount of any Partnership liabilities assumed by such Partner or which are
secured by any Partnership Property distributed to such Partner; and
(ii) To each Partner's FIT Capital Account there shall be
debited the amount of cash and the Gross Asset Value of any Partnership Property
distributed to such Partner pursuant to any provision of this Agreement, such
Partner's distributive share of Losses and any items in the nature of expenses
or losses that are specially allocated pursuant to Section 16.4(b) or Section
16.4(c) hereof, and the amount of any liabilities of such Partner assumed by the
Partnership or which are secured by any property contributed by such Person to
the Partnership.
(iii) In determining the amount of any liability for purposes
of subparagraphs (i) and (ii) hereof, there shall be taken into account Code
Section 752(c) and any other applicable provisions of the Code and Regulations.
16.3(e) "Federal Income Tax Capital Contribution" (FIT Capital
Contribution) means, with respect to any Partner, the amount of money and the
initial Gross Asset Value of any property (other than money) contributed as
capital and not as a project loan to the Partnership by such Partner pursuant to
this Agreement. The principal amount of a promissory note which is not readily
traded on an established securities market and which is contributed to the
Partnership by the maker of the note shall not be included in the FIT Capital
Account of any Partner until the Partnership makes a taxable distribution of the
note or until (and to the extent) principal payments are made on the note, all
in accordance with Regulations Section 1.704-1(b)(2)(iv)(d)(2).
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16.3(f) "Gross Asset Value" means, with respect to any asset, the
asset's adjusted basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership (or deemed contributed to the Partnership following a
Code Section 708(b)(1)(B) termination) shall be the gross fair market value of
such asset as determined by the contributing Partner and the Partnership
Committee;
(ii) The Gross Asset Value of all Partnership assets shall be
adjusted to equal their respective gross fair market values, as determined by
the Partnership Committee, as of the following times: (a) the acquisition of an
additional Ownership Interest by any new or existing Partner in exchange for
more than a de minimis FIT Capital Contribution; (b) the distribution by the
Partnership to a Partner of more than a de minimis amount of Partnership
Property as consideration for an Ownership Interest; and (c) the liquidation of
the Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
(iii) The Gross Asset Value of any Partnership asset
distributed to any Partner shall be the gross fair market value of such asset on
the date of distribution; and
(iv) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining FIT
Capital Accounts pursuant to Regulations Section 1.704-l(b)(2)(iv)(m) and
16.4(b)(viii) hereof; provided, however, that Gross Asset Values shall not be
adjusted pursuant to this subparagraph (iv) to the extent the Partnership
Committee determines that an adjustment to subparagraph (ii) hereof is necessary
or appropriate in connection with a transaction that would otherwise result in
an adjustment pursuant to this subparagraph (iv). If the
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Gross Asset Value of an asset has been determined or adjusted pursuant to
subparagraph (i), (ii) or (iv) hereof, such Gross Asset Value shall thereafter
be adjusted by the Depreciation taken into account with respect to such asset
for purposes of computing Profits and Losses.
16.3(g) "Guaranteed Payment" means a payment by the Partnership to a
Partner as provided under Regulations Section 1.707-1(c). Such payment is to be
determined without regard to the income of the Partnership and is considered as
made to a Partner who is not acting in its capacity as a Partner.
16.3(h) "Nonrecourse Deductions" has the meaning set forth in
Regulations Section 1.704-2(b). The amount of Nonrecourse Deductions for a
Partnership Fiscal Year is determined in accordance with Regulations Section
1.704-2(c) and equals the net increase in Partnership Minimum Gain during the
year, reduced (but not below zero) by the aggregate distributions made during
the year of proceeds of a Nonrecourse Liability that are allocable to an
increase in Partnership Minimum Gain; provided that increases in Partnership
Minimum Gain resulting from conversions, refinancing, or other changes to a debt
instrument described in Regulations Section 1.704-2(g)(3) shall not generate
Nonrecourse Deductions.
16.3(i) "Nonrecourse Liabilities" has the meaning set forth in
Regulations Section 1.752-1(a)(2) or 1.704-2(b)(3).
16.3(j) "Partner Nonrecourse Debt" or "Partner Nonrecourse Liability"
as set forth in Regulations Section 1.704-2(b)(4), means any Partnership
liability to the extent that the liability is nonrecourse for purposes of
Regulations Section 1.1001-2, and a Partner (or related person within the
meaning of Regulations Section 1.752-4(b)) bears the economic risk of loss
within the meaning of Regulations Section 1.754-2.
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16.3(k) "Partner Nonrecourse Debt Minimum Gain" means an amount, with
respect to each Partner Nonrecourse Debt, determined in accordance with
Regulations Sections 1.704-2(i)(2) and 1.704-2(i)(3).
16.3(l) "Partner Nonrecourse Deductions", as set forth in Regulations
Section 1.704-2(i)(2) and 1.704-2(i)(3), means for any Partnership taxable year,
the net increase during the year in Partner Nonrecourse Debt Minimum Gain,
reduced (but not below zero) by proceeds of the liability distributed during the
year to the Partner bearing the economic risk of loss for the liability that is
both attributable to the liability and allocable to an increase in the Partner
Nonrecourse Debt Minimum Gain.
16.3(m) "Partnership Minimum Gain" has the meaning set forth in
Regulations Section 1.704-2(b)(2) and 1.704-2(d).
16.3(n) "Profits and Losses" means, for each Fiscal Year or other
period, an amount equal to the Partnership's taxable income or loss for such
year or period, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss, or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss), with the following adjustments:
(i) Any income described in Code Section 705(a)(1)(B) of the
Partnership that is exempt from federal income tax and not otherwise taken into
account in computing Profits and Losses pursuant to this definition shall be
added to such taxable income or loss;
(ii) Any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Regulations
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Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing
Profits or Losses pursuant to this definition, shall be subtracted from such
taxable income or loss;
(iii) In the event the Gross Asset Value of any Partnership
Property is adjusted pursuant to subparagraph (ii) or subparagraph (iii) of the
definition of Gross Asset Value, the amount of such adjustments shall be taken
into account as gain or loss from the disposition of such asset for purposes of
computing Profits and Losses;
(iv) Gain or loss resulting from any disposition of
Partnership Property with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference to the Gross Asset
Value of the property disposed of, notwithstanding that the adjusted tax basis
of such property may differ from its Gross Asset Value.
(v) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such Fiscal Year or other
period, computed in accordance with the definition of Depreciation; and
(vi) Notwithstanding any other provisions of this definition,
any items which are specially allocated pursuant to Section 16.4(b) or Section
16.4(c) shall not be taken into account in computing Profits or Losses.
16.3(o) "Regulations" means the Income Tax Regulations promulgated
under the Code as amended from time to time, including the corresponding
provisions of any succeeding regulations.
16.3(p) "Tax Matters Partner" means the Partner so designated pursuant
to Exhibit E hereof.
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16.4 Tax Allocations.
16.4(a) Allocation of Profits and Losses.
(i) Allocation of Profits. After first giving effect to
the Regulatory Allocations set forth in Section 16.4(b), and the Special
Allocations in Section 16.4(c), Profits for each Fiscal Year of the Partnership
shall be allocated to the Partners in proportion to their respective Ownership
Interests as reflected in Exhibit A.
(ii) Allocation of Losses. After first giving effect to
the Regulatory Allocations set forth in Section 16.4(b), and the Special
Allocations in Section 16.4(c), Losses for each Fiscal Year of the Partnership
shall be allocated to the Partners in proportion to their respective Ownership
Interests as reflected in Exhibit A.
16.4(b) Regulatory Allocations. The following special allocations
shall be made for the purpose of complying with Code Section 704(b) and the
Regulations thereunder in the following order:
(i) Minimum Gain Charge Back. Except as otherwise provided in
Regulations Section 1.704-2(f), and notwithstanding any other provision of this
Article 16, if there is a net decrease in Partnership Minimum Gain during any
Partnership Fiscal Year, each Partner shall be specially allocated items of
Partnership income and gain for such year (and, if necessary subsequent years)
equal to such Partner's share of the net decrease in Partnership Minimum Gain,
determined in accordance with Regulations Section 1.704-2(g); provided that a
Partner shall not be subject to this Section 16.4(b)(i) to the extent that an
exception is provided by Regulations Sections 1.704-2(f)(2), (3) and (4), and
any Revenue Rulings issued pursuant to those Regulations. Any Partnership
Minimum Gain allocated pursuant to this Section 16.4(b)(i) shall consist of
first, gains recognized from the disposition of Partnership Property subject to
one
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or more Partnership Nonrecourse Liabilities, and second, if necessary, a pro
rata portion of the Partnership's other items of income or gain for that year.
This Section 16.4(b)(i) is intended to comply with the minimum gain charge back
requirement in Regulations Section 1.704-2(f) and shall be interpreted
consistently therewith. The FIT Capital Accounts of the Partners will be
restated pursuant to Regulation Section 1.704-1(b)(2)(iv)(f) in connection with
a termination of the Partnership under Code Section 708(b)(1)(B).
(ii) Partner Nonrecourse Debt Minimum Gain Charge Back. Except as
otherwise provided in Regulations Section 1.704-2(i)(4), and notwithstanding any
other provision of this Article 16 except Section 16.4(b)(i), if there is a net
decrease in Partner Nonrecourse Debt Minimum Gain attributable to a Partner
Nonrecourse Debt during any Partnership Fiscal Year, each Partner who has a
share of the Partner Nonrecourse Debt Minimum Gain attributable to such Partner
Nonrecourse Debt (determined in accordance with Regulations Section 1.704-
2(i)(5)) as of the beginning of the year shall be specially allocated items of
Partnership income and gain for such year (and, if necessary, subsequent years)
equal to such Partner's share of the net decrease in Partner Nonrecourse Debt
Minimum Gain attributable to such Partner Nonrecourse Debt determined in
accordance with Regulations Section 1.704-2(i). A Partner's share of the net
decrease in Partner Nonrecourse Debt Minimum Gain shall be determined in
accordance with Regulations Section 1.704-2(i)(5); provided that a Partner shall
not be subject to this Section 16.4(b)(ii) to the extent that an exception is
provided by Regulations Section 1.704-2(i)(4) and any Revenue Rulings issued
thereunder. Any Partner Nonrecourse Debt Minimum Gain allocated pursuant to this
Section 16.4(b)(ii) shall consist of first,' gains recognized from the
disposition of Partnership Property subject to the Partner Nonrecourse Debt, and
second, if necessary, a pro rata portion of the Partnership's other items of
income or gain for
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that year. This Section 16.4(b)(ii) is intended to comply with the minimum gain
charge back requirement in Regulations Section 1.704-2(i)(4) and shall be
interpreted consistently therewith.
(iii) Code Section 704(c). In accordance with Code
Section 704(c) and the Regulations thereunder, income, gain, loss and deduction
with respect to any property contributed to the capital of the Partnership
shall, solely for tax purposes, be allocated among the Partners so as to take
into account any variation between the adjusted basis of such property to the
Partnership for federal income tax purposes and its initial Gross Asset Value
(computed in accordance with the definition of Gross Asset Value) including, but
not limited to, special allocations to a contributing Partner that are required
under Code Section 704(c) to be made upon distribution of such property to any
of the non-contributing Partners. In the event of a termination of the
Partnership under Section 708(b)(1)(B) of the Code, the Partners will be deemed
to receive an undivided interest in each item of the Partnership Property and
thereafter, will be deemed to contribute an undivided interest in each such
item; and items of Partnership income, gain, loss and deduction attributable to
each deemed contributed undivided interest as to which the Partners have
different tax basis for the same undivided interest, shall be allocated to each
Partner in proportion to its tax basis in such undivided interest until such
variation amount is eliminated, and if such allocations are not in accordance
with Code Section 704(c), curative allocations shall be made to achieve this
result as quickly as possible. In the event the Gross Asset Value of any
Partnership Property is adjusted pursuant to subparagraph (ii) of the definition
of Gross Asset Value, subsequent allocations of income, gain, loss and deduction
with respect to such asset shall take account of any variation between the
adjusted basis of such asset for federal income tax purposes and its Gross Asset
Value in the same manner as under Code Section 704(c) and the Regulations
thereunder. Any elections or other decisions relating to such allocations shall
be made
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by the Partnership Committee in any manner that reasonably reflects the purpose
and intention of the Agreement; provided, however, the Partnership shall select
the remedial method of allocation provided under Section 1.704-3(d) of the
Regulations. Allocations pursuant to this Section 16.4(b)(iii) are solely for
purposes of federal, state and local taxes and shall not affect, or in any way
be taken into account in computing any Partner's Book Capital Account or share
of Profits, Losses, other items, or distributions pursuant to any provision of
this Agreement.
(iv) Qualified Income Offset. In the event any Partner
unexpectedly receives any adjustments, allocations, or distributions described
in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-l(b)(2)(ii)(d)(5) or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially
allocated to each such Partner in an amount and manner sufficient to eliminate,
to the extent required by the Regulations, the Adjusted FIT Capital Account
Deficit of such Partner created by such adjustments, allocations or
distributions as quickly as possible, provided that an allocation pursuant to
this Section 16.4(b)(iv) shall be made if and only to the extent that such
Partner would have an Adjusted FIT Capital Account Deficit after all other
allocations provided for in this Article 16 have been tentatively made as if
this Section 16.4(b)(iv) were not in the Agreement.
(v) Gross Income Allocation. In the event any Partner
has a deficit FIT Capital Account at the end of any Partnership Fiscal Year that
is in excess of the sum of (A) the amount such Partner is obligated to restore
pursuant to the terms of this Agreement or otherwise, and (B) the amount such
Partner is deemed to be obligated to restore pursuant to the penultimate
sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such
Partner shall be specially allocated items of Partnership income and gain in the
amount of such excess as quickly as possible, provided that an allocation
pursuant to this Section 16.4(b)(iv) shall be made
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if, and only to the extent that, such Partner would have a deficit FIT Capital
Account in excess of such sum after all other allocations provided for in this
Article 16 have been tentatively made as if Section 16.4(b)(iii) and this
Section 16.4(b)(v) were not in the Agreement.
(vi) Nonrecourse Deductions. Nonrecourse Deductions for
any Fiscal Year or other period shall be allocated to the Partners in proportion
to their respective Ownership Interests.
(vii) Partner Nonrecourse Deductions. Any Partner
Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the
Partner who bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable
in accordance with Regulations Section 1.704-2(h).
(viii) Section 754 Adjustment. To the extent an
adjustment to the adjusted tax basis of any Partnership Property pursuant to
Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining FIT
Capital Accounts, the amount of such adjustment to the FIT Capital Accounts
shall be treated as an item of gain (if the adjustment increases the basis of
the asset) or loss (if the adjustment decreases such basis) and such gain or
loss shall be specially allocated to the Partners in a manner consistent with
the manner in which their FIT Capital Accounts are required to be adjusted
pursuant to such section of the Regulations.
16.4(c) Special Allocations.
(i) Allocation of Inherent Gain. If during the term of
the Partnership, the FIT Capital Accounts of the Partners are not restated
pursuant to Regulations Section 1.704-1(b)(2)(iv)(f), then except as required by
the Regulatory Allocations, gain on disposition of the Partnership's assets as
of the date of this Agreement and their adjusted tax basis
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as of such date shall be allocated to the Partners in proportion to their
Ownership Interests. The FIT Capital Accounts of the Partners will be restated
pursuant to Regulations Section 1.704-1(b)(2)(f) in connection with a
termination of the Partnership under code Section 708(b)(1)(B).
(ii) Curative Allocations. The allocations set forth in
Section 16.4(b)(iv), (v) and (viii) (the "Regulatory Allocations") are intended
to comply with certain requirements of Regulations Section 1.704-1(b).
Notwithstanding any other provision of this Article 16 (other than the
Regulatory Allocations), the Regulatory Allocations shall be taken into account
in allocating other Profits, Losses and items of income, gains, loss deduction
among the Partners so that, to the extent possible, the net amount of such
allocations of other Profits, Losses, and other items and the Regulatory
Allocations to the Partners shall be equal to the net amount that would have
been allocated to them if the Regulatory Allocations had not occurred.
Allocations made pursuant to this Section 16.4(c)(ii) are hereby authorized by
the Partnership Committee and shall be for the purpose of minimizing the
economic distortions that might otherwise result from the application of the
Regulatory Allocations.
(iii) Deduction or Loss Attributable to FIT Capital
Contributions. Except as required by the
Regulatory Allocations, all items of deduction or loss attributable to a
Partner's FIT Capital Contribution to the Partnership shall be allocated to the
contributing Partner in accordance with the Partner's Ownership Interest.
16.4(d) Other Allocation Rules.
(i) Upon liquidation of the Partnership (or any
Partner's Ownership Interest) liquidating distributions shall be made in all
cases in accordance with the positive FIT
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Capital Account balances of the Partners, as determined after taking into
account all capital account adjustments for the Partnership taxable year during
which the liquidation occurs, consistent with the rules set forth in Regulations
Section 1.704-l(b)(2).
(ii) The provisions of this Article 16 are intended to
comply with Code Section 704 and the Regulations thereunder.
(iii) For purposes of determining the profits, losses,
or any other items allocable to any period, profits, losses, and any such other
items shall be determined on a daily, monthly, or other basis, as determined by
the Partnership Committee using any permissible methods under Code Section 706
and the Regulations thereunder.
(iv) Except as otherwise provided in this Agreement, all
items of Partnership income, gain, loss, deduction, and any other allocations
not otherwise provided for shall be divided among the Partners in the same
proportions as they share profits or losses, as the case may be, for the year.
(v) If any Ownership Interest is sold, assigned or
transferred during any accounting period, Profits, Losses, each item thereof and
all other items attributable to the transferred Ownership Interest for such
period shall be divided and allocated between the transferor and the transferee
by taking into account their varying interests during the period in accordance
with Code Section 706(d), using any conventions permitted by law and selected by
the Partnership Committee. All distributions on or before the date of such
transfer shall be made to the transferor and all distributions thereafter shall
be made to the transferee.
(vi) For purposes of Regulations Section 1.752-3(1)(3),
the Partners agree that nonrecourse liabilities of the Partnership in excess of
the sum of (A) the amount of Partnership Minimum Gain, and (B) the total amount
of built-in gain (as described in
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Regulations Section 1.752-3(a)(2)), shall be allocated among the Partners in
accordance with their respective ownership Interests.
17. Transfer of Ownership Interests
17.1 Limitation on Assignments. No Partner shall assign its
Ownership Interest or its rights to share in the profits of the Partnership if
the fact of such assignment or any of the provisions in such assignment would
materially diminish the creditworthiness of the Partnership.
17.2 Permitted Transfers. No Partner shall sell, assign, transfer,
encumber, or otherwise dispose of all or any portion of its Ownership Interest
in the Partnership unless it shall have obtained the written consent of all
other Partners or shall have complied with the provisions of this Article 17.
Subject to the foregoing, a Partner (herein the "Transferring Partner") may
dispose of all or any part of its Ownership Interest in the Partnership provided
that such proposed sale is not made as part of a transaction involving the sale
of any item other than such interest unless the market value of such Ownership
Interest can be separately identified and demonstrated by complying with the
following procedure:
(a) The Transferring Partner shall give written notice (the
"Disposition Notice") to each other Partner hereto (the "Remaining Partners")
not less than forty-five (45) days prior to the effective date of such
disposition, stating the interest to be sold and the price and terms of sale and
identifying the proposed transferee (herein the "Proposed Transferee"). Such
notice, to be effective, shall be accompanied by an agreement executed by the
Transferring Partner and the Proposed Transferee (the "Purchase Agreement")
containing all the material terms and conditions of the proposed sale, which
agreement demonstrates that completion of the sale is contingent only upon (i)
the non-exercise of rights of first refusal under this Article 17, (ii) the
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obtaining of any required government approvals and (iii) the satisfaction of a
standard due diligence review, including such items as title, environmental, and
certain other specifically itemized defects. The Remaining Partners shall then
have first options to purchase all such Ownership Interest on the same terms as
in the Purchase Agreement in the proportion which their Ownership Interest bears
to the Ownership Interests of all Remaining Partners, and those desiring to do
so shall exercise such options by giving written notice thereof to the
Transferring partner and all other Remaining Partners within thirty (30) days
after the notice described above is given. Any Ownership Interest as to which
such first options are not exercised shall be deemed re-offered to the Remaining
Partners who exercised their first options, and such Partners shall, for a
period of ten (10) days from the expiration of the thirty (30) day period, have
second options to purchase the same (at the same price, on the same terms, and
by notice as stated above delivered within the ten (10) day period) in the
proportion that their Ownership Interest bears to the Ownership Interests of all
Partners exercising their first options or in such proportions as they may
mutually agree upon. Any Ownership Interest not elected to be purchased during
the ten (10) day period shall remain under option to those Remaining Partners
who have exercised both the first and second options, to be purchased
proportionately as stated above or in such other manner as such Remaining
Partners may mutually agree upon, but notice of election to purchase all of the
Ownership Interest originally offered must be given to the Transferring Partner
and the Remaining Partners within forty-five (45) days from the notice of offer
given by the Transferring Partner. If elections to purchase all of the offered
Ownership Interest have been made within the forty-five (45) day period, those
Partners electing to purchase shall be irrevocably obligated to promptly deposit
with the Secretary of the Partnership certified checks in favor of the
Transferring Partner for the purchase price of the Ownership Interest so
purchased who shall distribute the checks to
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the Transferring Partner upon receipt of checks evidencing one hundred percent
(100%) of the offered Ownership Interest. If notices of elections to purchase
less than all of the offered Ownership Interest have been given at the
expiration of the forty-five (45) day period, the Transferring Partner may
complete the sale of all of the offered Ownership Interest to the Proposed
Transferee, subject to the compliance with Section 17.2(b), on the same terms as
contained in the Purchase Agreement, at any time within one hundred twenty (120)
days thereafter. If the sale to the Proposed Transferee is not completed within
the one hundred twenty (120) day period, all of the Ownership Interest
originally offered shall again become subject to the foregoing restrictions in
this Section 17.2(a).
(b) At the time written notice is given to each Partner of a proposed
sale in accordance with Section 17.2(a), the Transferring Partner shall include
with such notice information sufficient to demonstrate to the other Partners
that the Proposed Transferee has adequate financial capability to fulfill the
obligations of a Partner hereunder as set forth in Exhibit C, which such
Proposed Transferee will assume in the event of such transfer. The period of
evaluation of the Proposed Transferee shall run concurrently with the period of
the first option being offered pursuant to Section 17.2(a). Within thirty (30)
days of the notice of proposed sale, each of the other Partners shall deliver to
all the other Partners its reasonable and good faith opinion as to whether the
adequate financial capability of the Proposed Transferee has been demonstrated.
If any Partner fails to deliver such an opinion, it shall be deemed to have
determined that the adequate financial capability of the Proposed Transferee has
been demonstrated. During such thirty (30) day consideration period, any Partner
may request of the Transferring Partner, and the Transferring Partner shall
provide, such supplemental information
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concerning the Proposed Transferee as may be reasonably necessary for the
requesting Partner to make such evaluation.
(c) If the transfer of the offered Ownership Interest to the Proposed
Transferee is to be completed, after compliance with the conditions set forth in
Sections 17.2(a) and (b), the Transferring Partner shall have the right to
transfer to the Proposed Transferee the Ownership Interest in the Partnership
specified in the notice referred to above and upon such transfer shall, subject
to this Article 17, be relieved of all its obligations and liabilities under
this Agreement arising after (but not before) the effective date of such
transfer, but only to the extent that such obligations and liabilities arise out
of or are connected with the Ownership Interest so transferred; provided that,
if a Partner or Partners having an aggregate ownership Interest in excess of
forty percent (40%) give notice under the terms of Section 17.2(b) that the
Proposed Transferee does not meet the requirements of Section 17.2(b), the
Transferring Partner shall be liable for all of the obligations and liabilities
of its Proposed Transferee under this Agreement, as hereafter amended (including
any liabilities for breach of this Agreement); provided, further, that, in such
event, the Transferring Partner shall be liable for the Proposed Transferee's
obligations and liabilities hereunder until such time as the Proposed Transferee
demonstrates to the Partnership Committee that it has adequate financial
capability to fulfill the obligations of a Partner and only to the extent that
such obligations and liabilities:
(1) arise out of, or are connected with, the Ownership
Interest transferred to such transferee by the Transferring Partner, and
(2) arise under this Agreement as it exists on the date
of any such transfer and as it may thereafter be amended or supplemented, but
such amendments or supplements shall not in any material way increase or
adversely affect any of the obligations or
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
liabilities hereunder of such Transferring Partner as they exist on the date
of such transfer or extend the term of this Agreement past December 31,
2046. Any Transferring Partner who retains liability hereunder shall be
given copies of all notices (simultaneously with its Proposed Transferee)
concerning any obligations due and owing hereunder from its Proposed
Transferee. As a condition precedent to any person becoming a Partner, such
Proposed Transferee shall expressly assume the obligations of this Agreement
by executing and delivering one (or, at the request of the Partnership,
more) counterpart of this Agreement to each Partner and shall execute such
other documents as the other Partnership Committee may reasonably request
relating to assumption of the Transferring Partner's obligations and
liabilities concerning the Partnership.
(d) Notwithstanding any provision in this Section 17 to the contrary,
in the event WTLPS or WPCLP elect to transfer all or any portion of its
Ownership Interest to a Proposed Transferee other than an Affiliate of WTLPS
or WPCLP on or before August 15, 1997; CPL or CRR shall have the right to
* purchase such interest from WTLPS or WPCLP at a price equal to REDACTED per
percent of Ownership Interest in the Partnership. In the event WTLPS or
WPCLP elect to transfer all or any portion of its Ownership Interest on or
between August 16, 1997, and December 31, 1999; CPL or CRR shall have the
right but not the obligation to purchase such interest from WTLPS or WPCLP
* at a price equal to the higher of (i) REDACTED per percent of Ownership
Interest in the Partnership, plus WTLPS's or WPCLP's share, as the case may
be, of Incremental Revenue Capital Contributions (as hereinafter defined)
proportionate to the percent of Ownership Interest being tendered to CPL or
CRR for any Incremental Revenue
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Confidential Treatment Requested.
The redacted material has been
separately filed with the Commission.
Capital Contributions made subsequent to the date hereof, but only to the
extent that the incremental cash flow derived from said Incremental Revenue
Capital Contributions has not returned to WTLPS or WPCLP the full amount of
such capital contribution, or (ii) the dollar value of such Ownership
* Interests obtained by multiplying the number REDACTED the immediately
preceding twelve (12) months EBITDA of the Partnership commencing from the
month immediately preceding the month in which the Disposition Notice is
made, less Actual Incremental Revenue Capital Contribution EBITDA (as
hereinafter defined) the result of which is multiplied by the percentage
Ownership Interest being tendered to CPL or CRR, and then adding to this
product WTLPS's or WPCLP's share of Incremental Revenue Capital Contributions
proportionate to the percent of Ownership Interest being tendered to CPL or
CRR made within the twelve (12) months immediately preceding the month in
which the Disposition Notice is delivered. For the purpose of this Section
17.2(d), (i) "EBITDA" shall mean earnings before interest, taxes,
depreciation and amortization, and (ii) "Incremental Revenue Capital
Contributions" shall mean capital contributions to the Company which are
intended to ultimately fund activities which add incremental earnings to the
Partnership, but excluding any contributions necessary to maintain the
ongoing operations of the Partnership Property. The determination as to
whether a contribution is an Incremental Revenue Capital Contribution shall
be made by the Partnership Committee, the determination of which will be
included in the request for such contribution that is sent to each Partner.
Such request shall also include a projection of incremental revenue to be
derived from the activities funded by such capital contribution, with a
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projected time schedule or other means to track actual revenue derived from this
contribution. "Actual Incremental Revenue Capital Contribution EBITDA" shall
mean actual EBITDA generated from Incremental Revenue Capital Contributions made
during the immediately preceding twelve (12) month period. The rights granted in
this Section 17.2 (d) must be exercised by CPL or CRR by sending written notice
(the "Election Notice") to WTLPS or WPCLP of its election to purchase WTLPS's or
WPCLP's Ownership Interest within a period of thirty (30) days following its
receipt of the Disposition Notice from WTLPS or WPCLP. In the event CPL or CRR
fails to exercise its right to purchase WTLPS's or WPCLP's interest by sending
the Election Notice within the required time period or fails to close on the
acquisition of such interest within ninety (90) days following WTLPS's or
WPCLP's receipt of the Election Notice (if received by WTLPS or WPCLP within the
required thirty (30) day period), WTLPS or WPCLP shall have the right to
transfer such interest at any price that it is able to obtain as long as the
transfer occurs within a period of eight (8) months following the date of the
Disposition Notice. In the event CPL or CRR elects to exercise its rights to
purchase as set forth in this Section 17.2(d), as additional consideration for
the purchase, CPL or CRR shall release WTLPS or WPCLP from its obligation to
reimburse CPL or CRR for the initial working capital as set forth in Section
6.1, but only as to that portion of WTLPS's or WPCLP's Ownership Interest that
is acquired by CPL or CRR. This provision shall bind any Transferee of WTLPS or
WTLPS pursuant to Section 17.3, below, mutatis mutandis.
17.3 Transfers to Affiliates
17.3(a) General. Except as described in Section 17.3(b) there shall
be no restrictions on the disposition of all or any part of a Partner's
Ownership Interest in the Partnership to an Affiliate if such Affiliate
expressly assumes the obligations of this Agreement by
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executing and delivering one (or at the request of the Partnership, more)
counterpart of this Agreement to each other Partner and shall execute such other
documents as the other Partners may reasonably request relating to the
Transferring Partner's obligations and liabilities concerning the Partnership.
17.3(b) Restrictions. Except as permitted by Section 17.3(c), no
Partner or Related Company shall sell, assign, transfer, or otherwise dispose of
its controlling interest in its Related Company voluntarily or by operation of
law, except to a company wholly owned, directly or indirectly, by such Partner
or an Affiliate of the Partner, unless it shall have obtained the written
consent of all the other Partners or shall have complied with the procedures set
out below. Subject to the foregoing, any Partner ("Selling Partner") may sell
its controlling interest in a Related Company provided that such proposed sale
is not made as a part of a transaction involving the sale of any item other than
such interest, unless the market value of such controlling interest can be
separately identified and demonstrated and the Related Company has no assets
other than its Ownership Interest in the Partnership, by giving written notice
to each other Partner ("Remaining Partners") not less than forty-five (45) days
prior to the effective date of such disposition, stating the interest to be sold
and the price and terms of sale and identifying the proposed transferee (herein
the "Proposed Transferee"). Such notice, to be effective, shall be accompanied
by an agreement executed by the Selling Partner and the Proposed Transferee (the
"Purchase Agreement") containing all the terms and conditions of the proposed
sale, which agreement demonstrates that completion of the sale is contingent
only upon (i) the non-exercise of rights of first refusal under this Section
17.3(b), (ii) the obtaining of any required government approvals and (iii) the
satisfaction of a standard due diligence review, including such items as title,
environmental, and certain other specifically itemized defects. The Remaining
Partners shall then
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have first options to purchase all such interests on the same terms as in the
Purchase Agreement in the proportion which their then-existing Ownership
Interest in the Partnership bears to the Ownership Interest of all Remaining
Partners and those desiring to do so shall exercise such options by giving
written notice thereof to the Selling Partner and all other Remaining Partners
within thirty (30) days after the notice described above is given. Any interest
as to which such first options are not exercised shall be deemed re-offered to
the Remaining Partners who exercised their first options, and such Remaining
Partners shall, for a period of ten (10) days from the expiration of the thirty
(30) day period, have second options to purchase the same (at the same price, on
the same terms, and by notice as stated above delivered within the ten (10) day
period) in the proportion which each Partner's then-existing Ownership Interest
in the Partnership bears to the ownership Interests of all Partners exercising
their first options or in such proportions as they may mutually agree upon. Any
interest not elected to be purchased during the ten (10) day period shall remain
under option to those Remaining Partners who have exercised both the first and
second options, to be purchased proportionately as stated above or in such other
manner as such Remaining Partners may mutually agree upon, but notice of
election to purchase all of the interest originally offered must be given to the
Selling Partner and the Remaining Partners within forty-five (45) days from the
notice of offer given by the Selling Partner. If elections to purchase all of
the offered interest have been made within the forty-five (45) day period, those
Partners electing to purchase shall be irrevocably obligated to execute
agreements in the form of the Purchase Agreement with the Selling Partner and
promptly thereafter pay the purchase price to the Selling Partner for their
proportionate share of stock of the Related Company. If notices of elections to
purchase less than all of the offered interest have been given at the expiration
of the forty-five (45) day period, the Selling Partner may complete the sale of
all of the offered interest to the Proposed
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Transferee on the same terms as contained in the Purchase Agreement, at any time
within one-hundred twenty (120) days thereafter. If the sale to the Proposed
Transferee is not completed within the one-hundred twenty (120) day period, all
of the interest originally offered shall again become subject to the sale
restrictions in this Section 17.3(b).
17.3(c) Non-application of Section 17.3(b) Restrictions. The
restrictions in Section 17.3(b), above, shall not apply to a transfer of an
interest in a Related Company if, at the time the transfer is consummated, any
one (or more) of the' following criteria is met:
(i) The proposed purchaser of the interest in the
Related Company is an Affiliate of the Selling Partner; or
(ii) The Related Company owns, in addition to its
ownership Interest in the Partnership, assets with a fair market value of at
least $50 million; or
(iii) The proposed purchaser of the interest in the
Related Company purchases from the Selling Partner or one or more Affiliates of
the Selling Partner, concurrently with its purchase of the Related Company,
other assets with a fair market value in excess of $50 million.
If a Selling Partner desires to make a transfer permitted by this
Section 17.3(c), it shall send a notice of such transfer to each Remaining
Partner at least seven (7) days before the effective date of such transfer along
with a certificate signed by the President or Chief Financial Officer of the
Selling Partner certifying facts which affirmatively show that the transfer
meets the requirements of subparagraph "(i)", "(ii)" or "(iii)" above.
17.4 Limitation on Dispositions to Avoid Termination.
Notwithstanding anything in this Agreement to the contrary, a Partner shall have
the right to effect a disposition of its Ownership Interest, with consent of the
other Partners, such consent not to be unreasonably
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withheld, to any Person or entity that, so long as when aggregated with the
total of all other dispositions of ownership Interests within the preceding
twelve (12) months, said disposition does not result in the Partnership being
considered to have terminated within the meaning of Section 708(b)(1)(B) of the
Code. Any Partner transferring all or any portion of its Ownership Interest
shall promptly notify the Tax Matters Partner of such transfer.
17.5 Relative Liabilities of Old and New Partners.
Partners shall be liable as to other Partners for Partnership debts
and obligations in proportion to their relative Ownership Interests in the
Partnership.
18. Extensions to and Expansion of the System
18.1 Extensions to the System. From time to time the Partnership
will consider extensions to the System for the purpose of connecting new sources
of LPG. The Partnership may fund such extensions if economically viable. Funding
for such projects will be approved by the Partnership Committee pursuant to
Section 8.6(c).
18.2 Expansions. From time to time the Partnership will consider
expansions to the System for the purpose of increasing the capacity of the
system or portions thereof. The Partnership may fund such expansions if
economically viable. Funding for such projects will be approved by the
Partnership Committee pursuant to Section 8.6(c).
Any Partner may propose such expansions at any time with a
written request to the Partnership Committee. The expansion proposal shall
include a good faith presentation of the forecasted volumes which warrant the
expansion , an estimate of the construction costs and the estimated time to
complete the project. The Operator may be requested
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to provide assistance and information needed for the preparation of the
proposal. Additionally, the Operator will be asked to coordinate the project
once approved.
19. Default by Partners
19.1 Failure to Make Contributions. Capital contributions not made
when due shall bear interest at the lower of (i) two percent (2%) plus the prime
rate of interest charged by the Chase Manhattan Bank (N.A.) at the time the
contribution was due, or (ii) the maximum legal rate of interest. While any
Partner is in material default hereunder in any of its obligations to make
capital contributions, such Partner shall have:
(a) No right to vote as a Partner and its Member on the
Partnership Committee shall have no right to vote (and the requirements for
passage or approval of items and for quorums shall be modified as necessary),
(b) No right to receive any portion of any distributions made by
the Partnership, and
(c) A continuing duty to pay its share of all future capital
contributions called for by the Partnership pursuant to this Agreement.
19.2 Expulsion of Partners. In the event any Partner commits a
material default of its obligations under this Agreement and fails to commence
reasonable steps to remedy the default within sixty (60) days after its receipt
of written notice specifying in reasonable detail the default and the reasonable
actions that must be taken to cure such default, which notice shall be prepared
and sent at the direction of the Partnership Committee, (which, for all
determinations under this Article 19, shall exclude the Ownership Interest of
the Partner in default) or becomes bankrupt or otherwise enters into a
proceeding for general relief from its creditors, the Partners not in default
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may, in addition to any other remedy they may have by law or in equity, by vote
of the Partnership Committee as provided in Section 8.5(n), expel the defaulting
Partner effective as of any future date they specify.
19.3 Treatment of Book Capital Account of Expelled Partner. Any
Partner so expelled shall, within a reasonable period determined by the
Partnership which may include installment payments over five (5) years after the
date the expulsion becomes effective, be paid the positive balance, if any, in
its Book Capital Account after: (a) closing out its profits and losses (as
determined under GAAP) for Book Capital Account purposes; and (b) further
subtracting from its Book Capital Account the expelled Partner's or its
Affiliate's share of any then existing liabilities of the Partnership, whether
or not then due and owing, and any actual damages suffered by the Partnership
and other Partners by reason of the default. If the balance in the expelled
Partner's Book Capital Account is positive after the closing out of its profits
and losses and the subtraction of its (or its Affiliate's) share of then due and
owing liabilities of the Partnership, as well as the payment of any damages
(which subtracted items are herein referred to as "Current Liabilities"), but
such balance is less than the total of such former Partner's (or its
Affiliate's) share of any other potential existing Partnership liabilities which
are not then due and owing (herein "Non-Current Liabilities"), the Partnership
shall retain such part of the expelled Partner's Book Capital Account as is
equal to the amount of the expelled Partner's share of such Non-Current
Liabilities, until all such liabilities are paid in full. Such retained moneys
may be invested and reinvested as the Partnership deems appropriate and shall
constitute a security interest in the possession of the Partnership to secure
the payment of such Non-Current Liabilities of the expelled Partner, and such
expelled Partner agrees that such security interest in its Book Capital Account
shall pass to the Partnership and the Partnership shall take possession thereof
for the
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purpose of obtaining perfection of such security interest on the earlier of the
date of its expulsion or the date the expelled Partner enters voluntary
bankruptcy proceedings of any type or becomes bankrupt. The Partnership shall
apply all amounts retained from the expelled Partner's Book Capital Account
(including any interest earned thereon) to the payment of such Non-Current
Liabilities to the extent that such payments would have constituted a proper
charge against the Book Capital Account of such expelled Partner had it not been
expelled. At the time that all Non-Current Liabilities of the Partner shall have
been paid in full, the Partnership shall refund to the expelled Partner any
funds remaining on deposit with the Partnership from such Partner's Book Capital
Account.
19.4 Other Obligations of Expelled Partner. From the date of its
expulsion, the expelled Partner shall have no Ownership Interest in the
Partnership and shall not share in its profits and losses. Such expelled Partner
shall, however, be and remain directly liable for payment of (in addition to and
after application of any moneys retained by the Partnership from its Book
Capital Account) its Partnership share of any Current Liabilities and Non-
Current Liabilities that existed as of the date of such Partner's expulsion
until such liabilities are paid in full, and shall remain fully responsible for
any obligations it may have incurred pursuant to Article 15.
20. Dissolution and Winding Up of the Partnership
20.1 Dissolution. The dissolution of the Partnership shall be caused
only by the following events:
(a) The written consent of all Partners to dissolve the
Partnership.
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(b) The withdrawal (other than pursuant to a sale or other
disposition by a Partner of its Ownership Interest as authorized herein),
expulsion, dissolution or bankruptcy of any Partner or bankruptcy of the
Partnership.
(c) The sale by the Partnership of all or substantially all of
its assets.
(d) By any event which makes it unlawful for the business of the
Partnership to be carried on or for the Partners to carry it on in partnership.
(e) By expiration of the Partnership term as provided in Article
4.
(f) By court decree of dissolution as provided by the Act.
Each Partner covenants and agrees that it will not cause a dissolution of
the Partnership, directly or indirectly by (i) bankruptcy, (ii) being expelled
pursuant to Section 19.2 of this Agreement, (iii) withdrawal from the
Partnership, (iv) in the case of a partnership or a corporation, the taking of
any voluntary action or inaction to dissolve itself, or (v) breaching any other
material provision of this Agreement. It is understood that should any Partner
or Partners dissolve the Partnership in contravention of this provision, that
Partner or Partners shall be liable to the other Partners for damages for
wrongful dissolution. Such Partner also irrevocably waives any right it may have
under Texas law to be paid the value of its Ownership Interest.
For the purposes of this Section 20.1, a bankruptcy occurs whenever (a) an
entity makes an assignment for the benefit of all or substantially all of its
creditors or applies for the appointment of a trustee, liquidator or receiver of
any substantial part of its assets, or commences any proceeding relating to
itself under any bankruptcy, reorganization or similar laws (including the
Federal Bankruptcy Code of 1978, Title 11 of the United States Code and any
state insolvency act), or any such application is filed or proceeding is
commenced against such entity and such entity indicates its consent thereto; or
(b) an order, judgment or decree is entered by any
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court of competent jurisdiction, appointing a trustee, liquidator or receiver
for an entity or for all or a substantial part of such entity's assets and such
order, judgment or decree shall continue unstayed and in effect for any period
of one hundred eighty (180) consecutive days.
20.2 Continuance of Business After Dissolution. In the event the
Partnership is ever dissolved as a result of the withdrawal, bankruptcy,
dissolution, legal incompetency, expulsion or a default or other act in
contravention of this Agreement by one or more (but less than all) of the
Partners (hereinafter referred to as the "Dissolving Partner" or "Dissolving
Partners"), then the remaining Partner or Partners agree to continue the
business of the Partnership and to form a new Partnership under the terms of
this Agreement for the purpose of continuing the business. The resulting new
Partnership will be owned by all Partners other than any Dissolving Partner in
the same relative proportion as their previous Ownership Interests. However,
such Partners other than any Dissolving Partner may, by unanimous agreement,
accept a new Partner or Partners to take the place of the Dissolving Partner or
Dissolving Partners.
20.3 Liquidation of the Partnership. Upon the dissolution of the
Partnership under circumstances in which the business is not continued as
provided in Section 20.2, no further business shall be conducted by the
Partnership, except for the taking of such action as shall be necessary for the
winding up of its business and affairs, the liquidation of its assets and/or the
distribution of its assets to the Partners. Unless otherwise decided by the
Partnership Committee, the Operator shall be the liquidating trustee for the
Partnership. The winding up and liquidation of the Partnership shall consist of
the sale of the properties of the Partnership, at the conclusion of which the
Partnership shall terminate.
20.4 Winding Up of the Partnership. Upon the dissolution of the
Partnership, the proceeds from the liquidation of the assets of the Partnership
and collection of the receivables of
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the Partnership together with assets distributed in kind, to the extent
sufficient, shall be applied and distributed in the following order of priority:
(a) To the payment and discharge of all of the Partnership's
debts and liabilities and the expenses of liquidation;
(b) To the creation of any reserves that the liquidating trustee
and Operator deem necessary for any contingent or unforeseen liabilities or
obligations of the Partnership;
(c) To the payment and discharge of all of the Partnership's
debts and liabilities owing to Partners, but if the amount available for payment
is insufficient, then pro rata in accordance with the amounts of these debts and
liabilities; and
(d) To the Partners with positive F.I.T. Capital Accounts in
accordance with the ratio of their F.I.T. Capital Accounts.
21. Alternative Dispute Resolution Procedures.
Any dispute, controversy or claim arising out of or relating to this
Partnership Agreement, or the breach of performance hereof, including but not
limited to, any disputes concerning the interpretation of the terms and
provisions hereof, but excluding any matter which is within the exclusive
jurisdiction of, and is decided by, a regulatory agency having jurisdiction over
the Partnership with respect to such matter, shall be resolved through the use
of the following procedures or any other procedures mutually agreed to in
writing by each of the Partners:
(a) The parties will initially attempt in good faith to resolve any
disputes, controversy or claim arising out of or relating to this Agreement.
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(b) Should the parties directly involved in any dispute, controversy
or claim be unable to resolve same within a reasonable period of time, such
dispute, controversy or claim shall be submitted to the Partnership Committee
with such explanation or documentation as the Parties deem appropriate to aid
the Partnership Committee in their consideration of the issues presented. The
date the matter is first submitted to the Partnership Committee shall be
referred to as the "Submission Date." The Partnership Committee representatives
shall attempt in good faith, through the process of discussion and negotiation,
to resolve any dispute, controversy, or claim presented to it within forty-five
(45) days after the Submission Date.
(c) If the Partnership Committee representatives cannot so resolve
any dispute, controversy, or claim submitted to it within forty-five (45) days
after the Submission Date, the Parties shall attempt in good faith to settle the
matter by submitting the dispute, controversy or claim to mediation within sixty
(60) days after the Submission Date using any mediator upon which they mutually
agree. If the Parties are unable to mutually agree upon a mediator within
seventy-five (75) days after the Submission Date, the case shall be referred for
mediation to the office of Judicial Arbitration and Mediation Services, Inc.
("JAMS") in Houston, Texas. The cost of the mediator will be split equally
between the Parties to the controversy unless they agree otherwise in writing.
(d) If the matter has not been resolved pursuant to the aforesaid
mediation procedure within thirty (30) days of the initiation of such procedure,
or if either Partner will not participate in such mediation, either Partner may
request that the matter be resolved through arbitration by submitting a written
notice (the "Arbitration Notice") to the other. Any arbitration that is
conducted hereunder shall be governed by the Federal Arbitration Act, 9 U.S.C.
(S) 1 et seq., and will not be governed by the arbitration acts, statutes or
rules of any other jurisdiction.
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(e) The Arbitration Notice shall name the noticing Partner's
arbitrator and shall contain a statement of the issue(s) presented for
arbitration. Within fifteen (15) Days of receipt of an Arbitration Notice, the
other Partner shall name its arbitrator by written notice to the other and may
designate any additional issue(s) for arbitration. The two named arbitrators
shall elect the third arbitrator within fifteen (15) Days after the date on
which the second arbitrator was named. Should the two arbitrators fail to agree
on the selection of the third arbitrator, either Partner shall be entitled to
request the Senior Judge of the United States District Court for the Southern
District of Texas to select the third arbitrator. All arbitrators shall be
qualified by education or experience within the regulated oil or liquid
petroleum gas pipeline industry to decide the issues presented for arbitration.
No arbitrator shall be a current or former director, officer or employee of
either Partner, or its affiliates; an attorney (or member of a law firm) who has
rendered legal services to any Partner, or its affiliates, within the preceding
three years; or an owner of any of the common stock of either Partner or its
Affiliates.
(f) The three arbitrators shall commence the arbitration proceedings
within twenty-five (25) days following the appointment of the third arbitrator.
The arbitration proceedings shall be held in Houston, Texas at a mutually
acceptable site. The arbitrators shall have the authority to establish rules
and procedures governing the arbitration proceedings. Each Partner shall have
the opportunity to present its evidence at the hearing. The arbitrators may
call for the submission of pre-hearing statements of position and legal
authority, but no post-hearing briefs shall be submitted. After the
presentation of the evidence has concluded, each Partner shall submit to the
arbitration panel a final offer of its proposed resolution of the dispute. If
the issue under consideration is limited to a determination of an amount of
money owed by one Partner to the other, the arbitration panel shall be charged
to select from the two proposals the one which
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the panel finds to be the most reasonable and consistent with the terms and
conditions of this Agreement, and the arbitration panel shall not average the
Parties' proposals or otherwise craft its own remedy. The arbitration panel
shall not have the authority to award punitive, exemplary or consequential
damages. The arbitrators' decision must be rendered within thirty (30) days
following the conclusion of the hearing or submission of the evidence, but no
later than 90 days after appointment of the third arbitrator.
(g) The decision of the arbitrators or a majority of them, shall be
in writing and shall be final and binding upon the Parties as to the issue(s)
submitted. The cost of the hearing shall be shared equally by the Parties, and
each Partner shall be responsible for its own expenses and those of its counsel
or other representatives. Each Partner hereby irrevocably waives, to the
fullest extent permitted by law, any objection it may have to the arbitrability
of any such disputes, controversies or claims and further agrees that a final
determination in any such arbitration proceeding shall be conclusive and binding
upon each Partner. Judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The prevailing Partner shall
be entitled to recover reasonable attorneys' fees and court costs in any court
proceeding relating to the enforcement or collection of any award or judgment
rendered by the arbitration panel under this Agreement.
(h) All deadlines specified herein may be extended by mutual
agreement of the Parties. The procedures specified herein shall be the sole and
exclusive procedures for the resolution of disputes between the Parties arising
out of or relating to this Agreement; provided, however, that a Partner may seek
a preliminary injunction or other preliminary judicial relief if in its judgment
such action is necessary to avoid irreparable damage. Despite such action, the
Parties will continue in good faith in the procedures specified herein. All
applicable statutes of
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limitation, including without limitation, contractual limitation periods
provided for in this Agreement, shall be tolled while the procedures specified
in this Section are pending. The Parties will take all actions, if any,
necessary to effectuate the tolling of any applicable statutes of limitation.
22. Further Assurance
Each of the Partners agrees to execute and deliver all such other
additional instruments and documents and to do such other acts and things as may
be necessary more fully to effectuate this Agreement and the Partnership created
hereby and to carry on the business of the Partnership in accordance with this
Agreement.
23. Waiver
No waiver by any Partner of the performance of any provision,
condition or requirement herein shall be deemed to be a waiver of, or in any
manner release the other Partners from, performance of any other provision,
condition or requirement herein; nor be deemed to be a waiver of, or in any
manner release the other Partners from future performance of the same provision,
condition, or requirement; nor shall any delay or omission of any Partner to
exercise any right hereunder in any manner impair the exercise of any such right
or any like right accruing to it thereafter.
24. Independent Conduct
Each of the Partners and their respective Affiliates reserve and
retain the right to engage in all businesses and activities of any kind
whatsoever (regardless of whether the same may be in competition with the
business and activities of the Partnership), and to acquire and own
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all assets however acquired and wherever situated, and to receive compensation
or profit therefrom, for their own respective accounts and without in any manner
being obligated to disclose such business and activities or assets or
compensation or profit to the other Partners or to the Partnership.
25. Applicable Law
THIS AGREEMENT, OTHER DOCUMENTS EXECUTED AND DELIVERED PURSUANT
HERETO, AND THE LEGAL RELATIONS BETWEEN THE PARTIES WITH RESPECT TO THIS
AGREEMENT, SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH LAWS OF THE STATE
OF TEXAS WITHOUT REGARD TO RULES CONCERNING CONFLICTS OF LAW.
26. Subject to Applicable Law
This Agreement and the obligations of the Partners hereunder are
subject to all applicable laws, rules, court decisions, orders and regulations
of governmental authorities having jurisdiction.
27. Severability
Any provision of this Agreement prohibited by applicable law shall
be invalid to the extent of such prohibition unless it is determined by the
Partnership Committee, in accordance with Section 8.6, that such prohibition
invalidates the purposes or intent of this Agreement.
28. Headings
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The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
29. Binding Effect
This Agreement and the covenants, obligations, undertakings, rights
and benefits shall be binding on and inure to the benefit of the respective
successors and assigns of the Partners, except to the extent of any contrary
provision in this Agreement.
30. Benefits of Agreement Restricted to Parties
Nothing in this Agreement, expressed or implied, shall give or be
construed to give any Person, other than the parties hereto and their successors
and assigns, any legal or equitable right, remedy or claim under or in respect
to this Agreement or under any covenant, conditions or provisions contained
herein; and all such covenants, conditions and provisions shall be for the sole
benefit of the parties hereto.
31. Counterparts
The Partners may execute the Agreement in two or more counterparts,
which shall, in the aggregate, be signed by all of the Partners; each
counterpart shall be deemed an original instrument as against any Partner who
has signed it.
32. Entire Agreement
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This Agreement constitutes the entire agreement between the
Partners concerning the subject matter hereof and the same supersedes any prior
understanding or written or oral agreements relative to said matter.
33. Amendment
This Agreement may be amended only by agreement in writing of all
the Partners.
34. Notices
All notices required or permitted under this Agreement to be given
to any Partner or the Partnership shall be in writing and shall be deemed given
when personally delivered to the individual or individuals designated in writing
by that Partner or, for notices to the Partnership, to the Secretary of the
Partnership Committee; when sent by telex or facsimile; or five (5) days after
being mailed, postage prepaid, certified or registered, return receipt requested
and addressed as specified in writing by that Partner or, for notices to the
Partnership, to the Secretary of the Partnership Committee; provided, that, in
the case of notices which are mailed and which require the party or parties
being given notice to take action within a specified time period, the party
giving notice shall make a good faith effort to contact the party or parties
being given notice by telephone during the five (5) day period following mailing
to advise them of the mailing of the notice. The persons initially designated by
each Partner for receipt of notice and the address for such notice is shown on
the execution page of this Agreement next to each Partner's signature.
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Such designated person or address may be changed by a Partner by proper notice
to all other Partners and the Secretary of the Partnership Committee.
ACCEPTED and AGREED to on the date above written.
WTLPS, Inc.
WTLPS, Inc.'s Address for Notices:
By:_______________________
Title: President WTLPS, Inc.
Attention: President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: 713-507-________
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
WTLPS, Inc.
Attention: Vice President & General Counsel
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
WPC LP, Inc.
WPCLP, Inc.'s Address for Notices:
By:______________________
Title: President WTLPS, Inc.
Attention: President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: 713-507-________
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to:
WTLPS, Inc.
Attention: Vice President & General Counsel
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Chevron Pipe Line Company Chevron Pipe Line Company's
Address for Notices
By:_______________________
Title: CHEVRON PIPE LINE COMPANY
Attention: W. E. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
PHONE: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
Chevron Raven Ridge Pipe Line Chevron Raven Ridge Pipe Line Company's
Company Address for Notices
By:_______________________
Title: CHEVRON PIPE LINE COMPANY
Attention: W. E. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
PHONE: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
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EXHIBIT A
OWNERSHIP INTERESTS
Partner Type of Partnership Interest Ownership Interest
------- ---------------------------- -----------------
WTLPS, Inc. General Partner 00.49%
Chevron Pipe Line Company General Partner 00.51%
WPC LP, INC. Limited Partner 48.51%
Chevron Raven Ridge Pipe Line Company Limited Partner 50.49%
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EXHIBIT B
MAP OF THE SYSTEM
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EXHIBIT C
FINANCIAL RESPONSIBILITY REQUIREMENTS
Each potential new Partner in the West Texas LPG Pipeline Limited Partnership
must demonstrate adequate financial responsibility itself or through a Credit
Worthy Affiliate. Such credit worthiness may be demonstrated by satisfying one
of the four methods of meeting financial responsibility described below.
Method I
The Partner or its Affiliate has senior unsecured debt outstanding which is
rated by:
(a) ▇▇▇▇▇'▇ Investors Services Baa3 or better, and
(b) Standard and Poors BBB or better
Method II
If a Partner or its Affiliate fails to meet the above test, then the
following criteria will be applied to the Partner's or its Affiliate's financial
statements:
1. Debt/Capital less than or equal to 55%; or
2. Debt/EBITDA less than or equal to 3.5; or
3. Net worth greater than or equal to $250 million; or
4. Current assets/current liabilities greater than or equal to 1.0.
If the Partner or Affiliate meets any one of the above criteria, then such
Partner or Affiliate shall be deemed to have adequate financial capability to
fulfill the obligations of a Partner.
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EXHIBIT D
ENABLING AGREEMENT
This Agreement, dated as of _____________, 199__, among WTLPS, Inc., a Delaware
corporation; WPC LP, Inc., a Delaware corporation; Chevron Pipe Line Company, a
Delaware corporation; Chevron Raven Ridge Pipe Line Company, a Delaware
corporation (hereinafter collectively the "Owners") and_________, a_____________
corporation (hereinafter "C"), is made with reference to the following facts and
circumstances.
____________________, a______________ corporation ("X"), a wholly owned
subsidiary of C will become an Partner in the West Texas LPG Pipeline Limited
Partnership (the "Partnership") by executing the West Texas LPG Pipeline Limited
Partnership Agreement (the "Partnership Agreement ").
The parties desire to set forth the commitment of X to the Owners.
NOW THEREFORE, the parties agree as follows:
1. C will cause and enable X to comply at all times with the terms
and conditions of the Partnership Agreement, as it may be amended from time to
time. In the event X breaches the Partnership Agreement, C shall indemnify and
hold harmless the Owners for all costs, losses, damages and expenses caused by
such breach.
2. This Enabling Agreement is executed solely for the benefit of the
Owners and the Partnership and no other party shall have any rights hereunder.
3. This Enabling Agreement shall remain in effect so long as the
Partnership Agreement is in effect.
4. This Enabling Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of such
counterparts shall together constitute but one document.
EXECUTED as of the date first above stated.
WTLPS, Inc. Chevron Pipe Line Company
By: By:
----------------------- --------------------------
Title: Title:
--------------------- ------------------------
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WPC LP, Inc. Chevron Raven Ridge Pipe Line Company
By: By:
----------------------- ---------------------------
Title: Title:
-------------------- ------------------------
"C"
By:
-----------------------
Title:
--------------------
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EXHIBIT E
TAX MATTERS
1. Tax Returns, Proceedings and Elections. Tax returns, proceedings, and
elections shall be governed by the provisions of this Exhibit E as it may be
amended from time to time by a vote of the Partnership Committee.
(a) Chevron Pipeline Company is designated the tax matters Partner
("TMP") as defined in Section 6231(a)(7) of the Code. The designation of TMP
shall be effective only for operations conducted by the Partners pursuant to
this Agreement.
(b) The TMP shall cause to be prepared all necessary federal, state,
and local Partnership income, excise, and property tax returns and, except for
excise taxes, furnish a copy of the proposed return to the Partners for their
review not later than one month prior to the due date, including extensions, for
filing such returns. The TMP shall timely file such returns and shall provide
the Partners with schedules which are consistent with the treatment of all items
on those returns. The TMP agrees to use its best efforts in the preparation and
filing of such tax returns but, in doing so, shall incur no liability to any
Partner with respect to such returns or any elections relating thereto.
(c) The Partners shall furnish the TMP with such information as it may
reasonably request to aid in the preparation of the Partnership returns and
which will permit it to provide the Internal Revenue Service with sufficient
information so that proper notice can be mailed-to such Partners as provided in
Section 6223 of the Code.
(d) To the extent and in the manner provided by treasury regulations,
the TMP shall keep each Partner informed of all administrative
and judicial proceedings for the adjustment of Partnership items (as defined in
Section 6231(a)(3) of the Code) at the Partnership level.
(e) If an administrative proceeding contemplated under Section 6223 of
the Code has begun, the Partners shall notify the TMP of their treatment of any
Partnership Item on their federal income tax return in a manner which is or may
be inconsistent with the treatment of that item on the Partnership return.
(f) The TMP shall not enter into any extension of the period of
limitations as provided under Section 6229 of the Code without the prior written
consent of the Partners.
(g) Any Partner who enters into a settlement agreement with the
Secretary of the Treasury with respect to Partnership Items shall notify the
other Partners of such settlement agreement.
(h) The TMP shall not bind other Partners to a settlement agreement
without getting the concurrence, in writing, of the Partners which will be bound
by such agreement.
(i) The TMP shall notify all Partners of any intention to file a
petition with a court for a readjustment of any Partnership Items. Such notice
shall be given within a reasonable time so that the Partners may participate in
choosing the forum for the filing of any petition. This provision shall not
apply to any Partner who does not have an interest in the outcome. Whether a
Partner has an interest in the outcome will be determined using the standard in
Section 6226(d) of the Code. Further, the TMP or other Partner who had brought
the action under Section 6226 of
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the Code, shall provide other Partners with notice of any intention to seek
review of a determination by any court under that Section.
(j) No Partner may file a request for an administrative adjustment of
Partnership Items for any Partnership taxable year pursuant to Section 6227 of
the Code without first notifying all other Partners. If the other Partners agree
with the requested adjustment, the TMP shall file the request for administrative
adjustment on behalf of the Partnership.
(k) If any part of an administrative adjustment request filed by a
Partner is not allowed by the Internal Revenue Service, the Partner filing such
request shall seek the concurrence of other Partners with regard to the filing
of a petition with a court and with regard to seeking review of the
determination by any court in the same manner as provided in Section l(i) of
this Exhibit.
(l) The TMP and other Partners shall use their best efforts to comply
with the responsibilities as outlined here and in Sections 6222 through 6233 of
the Code but shall incur no liability to any other Partner for failure to
fulfill such responsibilities.
(m) The provisions of this Exhibit E shall survive the termination of
the Partnership or the termination of any Partner's interest in the Partnership
and shall remain binding on the Partners for a period of time necessary to
resolve with the Internal Revenue Service of the Department of the Treasury any
and all matters regarding the federal income taxation of the Tax Partnership and
any applicable state income tax matters.
2. Elections. The parties agree that the TMP is directed to make the
following elections on behalf of the Partnership in the appropriate returns of
the Partnership prepared pursuant to Section 1 above:
(a) To adopt the accrual method of accounting;
(b) To compute the allowance for depreciation or cost recovery using
the shortest permissible life and most rapid recovery method permitted under the
Code;
(c) To elect the Calendar Year as the Fiscal Year of the Partnership;
(d) To elect in a timely manner pursuant to Secion 266 of the Code
and the Treasury Regulations thereunder to charge to the capital account with
respect to the property acquired or constructed by the Partners under this
Agreement all taxes and carrying charges including interest on indebtedness,
which may be capitalized thereunder;
(e) To elect to amortize all organization costs of the Partnership
under Section 709 of the Code; and
(f) To make such other elections as the Partnership Committee may
direct.
3. Section 754 Election. Upon the transfer of an interest in the
Partnership, the Partnership shall make an election pursuant to Section 754 of
the Code to adjust the basis of Partnership Property.
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