EXHIBIT 3.B.1
FIFTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GULFTERRA ENERGY PARTNERS, L.P.
This Fifth Amendment (this "AMENDMENT") dated August 22, 2003 (the
"AMENDMENT DATE"), to the Second Amended and Restated Agreement of Limited
Partnership of GulfTerra Energy Partners, L.P. (the "PARTNERSHIP"), amended and
restated effective as of July 23, 2003 (as amended, the "PARTNERSHIP
AGREEMENT"), is entered into by and among GulfTerra Energy Company, L.L.C., a
Delaware limited liability company, as the General Partner (the "GENERAL
PARTNER"), and the Limited Partners.
INTRODUCTION
The Partnership desires to amend certain terms of the Series F Convertible
Units as set forth in the Statement of Rights, Privileges and Limitations of
Series F Convertible Units (the "STATEMENT") of the Partnership attached as
Annex A to the Third Amendment to the Partnership Agreement.
AGREEMENT
In consideration of the covenants, conditions and agreements contained
herein, pursuant to Section 15.1 of the Partnership Agreement, the Partnership
Agreement is hereby amended as set forth herein.
1. UNDEFINED TERMS. Undefined terms used herein are defined in the
Partnership Agreement.
2. AMENDMENTS. The Partnership Agreement is hereby amended by amending the
Statement as follows:
A. The following (1) Sections 1.13, 1.14 and 1.15 shall be
inserted into the Statement following Section 1.12 and existing Section
1.54 of the Statement, (2) Section 1.24 shall be inserted into the
Statement following Section 1.20 (which has been renumbered as Section 1.23
pursuant to this Section 2.A) and (3) Section 1.59 shall be inserted into
the Statement following Section 1.54 (which has been renumbered as Section
1.58 pursuant to this Section 2.A), and (X) the existing Sections 1.13
through 1.20 of the Statement shall be renumbered 1.16 through 1.23,
respectively, (Y) the existing Sections 1.21 through 1.54 of the Statement
shall be renumbered 1.25 through 1.58, respectively, and (Z) the existing
Sections 1.55 through 1.61 of the Statement shall be renumbered 1.60
through 1.66, respectively:
"1.13 CASHLESS CONVERSION is defined in Section 2.2(b)."
"1.14 CASHLESS CONVERSION TRIGGER PRICE means $26.00, subject to
adjustment pursuant to Section 3."
"1.15 CASHLESS SETTLEMENT is defined in Section 2.2(a)."
"1.24 DEEMED CONVERSION means any conversion of Series F
Convertible Units pursuant to which the Partnership does not receive
any cash or Partnership Bonds, specifically any conversion (i) in
connection with a Cashless Settlement or a Cashless Conversion, (ii)
under Section 2.5(d), (iii) pursuant to which the Holder actually
receives Acquisition Consideration in the form of cash net of the
relevant Conversion Consideration, or (iv) under Sections 3.3(c),
3.3(d) and 3.3(f)."
"1.58 SETTLEMENT UNITS is defined in Section 2.2(a)."
B. The definition of "Conversion Consideration" set forth in
Section 1.16 of the Statement (which has been renumbered as Section 1.19
pursuant to Section 2.A hereof) is hereby amended by adding the following
sentence at the end thereof:
"For a Deemed Conversion, the Conversion Consideration shall be
such amount designated in the relevant Conversion Notice,
notwithstanding that no payment is made, or required to be made, to
the Partnership in connection with such conversion."
C. The definition of "Minimum Conversion Price" set forth in
Section 1.28 of the Statement (which has been renumbered as Section 1.31
pursuant to Section 2.A hereof) is hereby amended by adding "or Settlement
Units" after "Cash Settlement Amount."
D. The definition of "Series F2 Vesting Amount" set forth in
Section 1.54 of the Statement (which has been renumbered as Section 1.57
pursuant to Section 2.A hereof) is hereby amended by (1) adding "or
Settlement Units" at the end of clause (ii) thereof and by (2) inserting
the following as clause (iv) and renumbering the existing clause (iv) as
clause (v):
"(iv) designated in any Conversion Notice delivered in connection
with a Cashless Conversion, and"
E. The proviso in Section 2.1(a) of the Statement is hereby
amended in its entirety to read as follows:
"; provided that the aggregate Conversion Consideration that the
Partnership receives (or is deemed to have received in connection with
Deemed Conversions) pursuant to conversions of any Series F1
Convertible Unit (the "SERIES F1 CONVERSION CONSIDERATION"), shall not
exceed $1,000,000."
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F. The proviso in Section 2.1(b) of the Statement is hereby
amended in its entirety to read as follows:
"; provided that the aggregate Conversion Consideration that the
Partnership receives (or is deemed to have received in connection with
Deemed Conversions) pursuant to conversions of any Series F2
Convertible Unit (the "SERIES F1 CONVERSION CONSIDERATION"), shall not
exceed $500,000."
G. Section 2.2 of the Statement is hereby amended in its entirety
to read as follows:
"2.2 CASHLESS SETTLEMENT; CASHLESS CONVERSION.
(a) CASHLESS SETTLEMENT. If the Conversion Unit Price with
respect to any Conversion Notice is below the Minimum Conversion
Price, then the Partnership shall, in lieu of issuing Series A Common
Units upon conversion of Series F Convertible Units covered by such
Conversion Notice, take one of the following actions (provided, that
the election between clauses (i) and (ii) below shall be in the
Partnership's sole discretion):
(i) pay an amount in cash to such Holder equal to the
difference of (x) the product of (A) the number of Series A
Common Units issuable on the relevant Conversion Closing Date and
(B) the Daily Market Unit Price as of the Business Day
immediately preceding the Conversion Notice Date and (y) the
Conversion Consideration designated in the relevant Conversion
Notice (the "CASH SETTLEMENT AMOUNT"), or
(ii) issue to such Holder a number of Series A Common Units
equal to the Cash Settlement Amount divided by the Prevailing
Unit Price (the "SETTLEMENT UNITS");
provided, that the Holder shall not be required to tender the
Conversion Consideration designated in the relevant Conversion Notice
(a "CASHLESS SETTLEMENT"). At any time and from time to time with
twenty (20) Business Days notice to the Holder, the Partnership shall
be entitled to establish a new Minimum Conversion Price.
(b) CASHLESS CONVERSION ELECTION. If the Prevailing Unit Price is
below the Cashless Conversion Trigger Price, a converting Holder may
elect in the Conversion Notice to receive Settlement Units, in lieu of
the number of Series A Common Units otherwise issuable upon conversion
of the Series F Convertible Units covered by such Conversion Notice,
provided, that the Holder shall not be required to tender the
Conversion Consideration designated in the relevant Conversion Notice
(a "CASHLESS CONVERSION"). Notwithstanding the Holder's election to
receive Settlement Units in a Cashless Conversion, the Partnership
shall have the sole right to elect no later than the Business Day
immediately after
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the date such Conversion Notice is delivered to the Partnership to
consummate such Cashless Conversion with the payment of the Cash
Settlement Amount in lieu of the issuance of Settlement Units. In
addition, if the Prevailing Unit Price is below the Cashless
Conversion Trigger Price and the converting Holder does not elect
Cashless Conversion in a Conversion Notice, then the Partnership may,
no later than the one Business Day immediately after the date such
Conversion Notice is delivered to the Partnership, elect Cashless
Conversion (and whether the settlement shall be in the form of the
Cash Settlement Amount or the Settlement Units).
(c) CLOSING OF CASHLESS SETTLEMENT OR CASHLESS CONVERSION. The
Partnership shall close a Cashless Settlement or a Cashless Conversion
on the relevant Conversion Closing Date. The Partnership shall (i) pay
the Cash Settlement Amount, if applicable, in immediately available
funds by 5:00 p.m., New York City time, on the relevant Conversion
Closing Date, to the account specified in the Holder's Conversion
Notice, or (ii) issue and deliver the Settlement Units, if applicable,
pursuant to Section 2.8(a) on the relevant Conversion Closing Date.
Upon receipt of the Cash Settlement Amount or the Settlement Units in
connection with any Cashless Settlement or Cashless Conversion, that
number of Series F Convertible Units with aggregate Series F1
Conversion Consideration and Series F2 Conversion Consideration equal
to the Conversion Consideration designated in the Conversion Notice
shall be deemed converted. If the Conversion Consideration deemed to
have been tendered pursuant to Section 2.2(a) or 2.2(b) is less than
the remaining, unconverted portion of Series F Convertible Units
represented by the certificate(s) tendered to the Partnership on the
Conversion Closing Date, the Partnership shall issue a replacement
certificate(s) as provided in Section 2.8(b).
(d) CASHLESS CONVERSIONS INITIATED BY HOLDER. In computing the
Cash Settlement Amount or the Settlement Units on a Cashless
Conversion initiated by a Holder, in no event shall such computation
be based on a number of Series A Common Units in excess of the Maximum
Number. Further, in determining whether the Maximum Number has been
reached, computation shall be made based on the number of Series A
Common Units, if any, actually issued in the case of a Cashless
Settlement or a Cashless Conversion, provided, that if a Cashless
Conversion is initiated by a Holder, then such computation shall be
based on the number of Series A Common Units that would have been
issued on the relevant Conversion Closing Date without giving effect
to such Cashless Conversion and without regard to whether such
Cashless Conversion was settled with Settlement Units, all subject to
adjustment by Section 3. Notwithstanding the foregoing, nothing in
this Section 2.2(d) shall be construed to change the meaning or the
intent of the Statement as originally filed as Annex A to the
Partnership Agreement with respect to any provision other than as such
may relate to Cashless Conversion or, in the case of Cashless
Settlement, as specifically provided in this Section 2.2(d).
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(e) The Partnership shall, within two (2) Business Days of a
Conversion Closing Date pursuant to this Section 2.2, give the Holder
written notice if the Partnership is unable to tender the Cash
Settlement Amount on such Conversion Closing Date. Within one (1)
Business Day after receipt of such notice, Holder shall give the
Partnership written notice, at its sole election, of its election to
(x) withdraw the Conversion Notice or (y) receive Series A Common
Units as determined pursuant to Section 3.1 in lieu of the Cash
Settlement Amount, which Conversion Closing Date shall occur within
three (3) Business Days of the Partnership's receipt of such Holder's
election pursuant to this Section 2.2(e)."
H. Section 2.6 of the Statement is hereby amended by adding "(or
deemed to have been received in connection with Deemed Conversions)" after
"Conversion Consideration."
I. The introductory language of Section 2.7 of the Statement is
hereby amended by adding ", except with respect to Deemed Conversions,"
immediately preceding "shall deliver payment."
J. The second sentence of Section 2.7 of the Statement is hereby
amended by adding "or, in the case of Deemed Conversions, upon delivery of
the certificate(s) representing the Series F Convertible Unit(s)" after
"Upon the Partnership's receipt of the Conversion Consideration."
K. Section 2.8(b) of the Statement is hereby amended by replacing
"Sections 2.2, 2.5(d), 3.3(d) and 3.3(f)" with Deemed Conversions in both
places in which such reference appears in Section 2.8(b) of the Statement.
L. Section 3.1 of the Statement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing, upon a Cashless Settlement or a
Cashless Conversion, the number of Series A Common Units which a
Holder shall be entitled to receive upon conversion of Series F
Convertible Units shall be as set forth in Section 2.2(a) or 2.2(b),
respectively, subject to the adjustments, terms and conditions in this
Statement."
M. Section 3.2 of the Statement is hereby amended by adding ",
the Cashless Conversion Trigger Price" after "the Prevailing Unit Price."
N. Section 3.3(d) of the Statement is hereby amended by adding ",
Cashless Conversion Trigger Price" after "the Prevailing Unit Price."
O. Section 3.3(e) of the Statement is hereby amended by adding ",
Cashless Conversion Trigger Price" after "the Prevailing Unit Price."
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P. The first paragraph of Exhibit B to this Statement is hereby
amended in its entirety to read as follows:
"Pursuant to the terms and conditions contained in the Statement,
[HOLDER] hereby elects to convert $[__________](1) of Series F(2)
Convertible Units into [ ] Series A Common Units, which would be
purchased at a Conversion Unit Price of $[____] [, AND SHALL DELIVER
ON THE CONVERSION CLOSING DATE SUCH AMOUNT VIA WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS AS PAYMENT FOR SUCH SERIES A COMMON UNITS]
[, AND SHALL DELIVER ON THE CONVERSION CLOSING DATE THAT NUMBER OF
PARTNERSHIP BONDS WITH AN AGGREGATE PRINCIPAL AMOUNT PLUS ACCRUED
INTEREST EQUAL TO SUCH DOLLAR AMOUNT AS PAYMENT FOR SUCH SERIES A
COMMON UNITS] [PURSUANT TO A [CASHLESS SETTLEMENT][CASHLESS
CONVERSION]] in accordance with the terms of the Statement. All
undefined capitalized terms used in this Conversion Notice shall have
the meaning set forth in the Statement."
N. Except as expressly set forth herein, the Partnership
Agreement and Statement shall remain in full force and effect.
3. MISCELLANEOUS.
A. CONSTRUCTION. Sections 10 and 11 of the Statement shall govern
this Amendment.
B. FURTHER ACTION. The parties hereto shall execute and deliver
all documents, provide all information and take or refrain from taking
action as may be necessary or appropriate to achieve the purposes of this
Amendment.
C. BINDING EFFECT. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.
D. INTEGRATION. This Amendment constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
E. CREDITORS. None of the provisions of this Amendment shall be
for the benefit of, or shall be enforceable by, any creditor of the
Partnership.
F. WAIVER. No failure by any party to insist upon the strict
performance of any covenant duty, agreement or condition of this Amendment
or to
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(1) Insert the dollar amount of Series F Convertible Units being converted.
In the case of partial conversion, a new certificate representing the Series F
Convertible Unit shall be issued and delivered, representing the unconverted
portion of the Series F Convertible Unit.
(2) Indicate whether Series F1 or Series F2 is being tendered.
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exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant duty,
agreement or condition.
G. COUNTERPARTS. This Amendment may be executed in counterparts,
all of which together shall constitute an agreement binding on all of the
parties hereto, notwithstanding that all such parties are not signatories
to the original or the same counterpart. Each party shall become bound by
this Amendment immediately upon affixing its signature hereto, or, in the
case of a Person acquiring a Unit, upon executing and delivering a Transfer
Application as described in the Partnership Agreement, independently of the
signature of any other party.
H. APPLICABLE LAW. This Amendment shall be construed in
accordance with and governed by the laws of the State of Delaware, without
regard to the principles of conflicts of law.
I. INVALIDITY OF PROVISIONS. If any provision of this Amendment
is or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the Amendment Date.
GENERAL PARTNER
GULFTERRA ENERGY COMPANY, L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
LIMITED PARTNERS
All Limited Partners now and
hereafter admitted as limited
partners of the Partnership,
pursuant to Powers of Attorney now
and hereafter executed in favor or,
and granted and delivered to, the
General Partner.
By: GulfTerra Energy Company, L.L.C.,
General Partner, as
attorney-in-fact for all
Limited Partners pursuant to
Powers of Attorney granted
pursuant to Section 1.4.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
FIFTH AMENDMENT TO AMENDED AND RESTATED PARTNERSHIP AGREEMENT