Exhibit 4.3
AMENDMENT NO. 1
TO
THIRD AMENDED AND
RESTATED
AGREEMENT OF LIMITED
PARTNERSHIP
OF
VALERO L.P.
This Amendment No.1, dated as of
March 11, 2004 (this “ Amendment ”), to the
Third Amended and Restated Agreement of Limited Partnership of
Valero L.P. (the “ Partnership Agreement ”), is
entered into by and among Riverwalk Logistics L.P., a Delaware
limited partnership, as the General Partner, and the Limited
Partners as provided herein. Each capitalized term used but not
otherwise defined herein shall have the meaning assigned to such
term in the Partnership Agreement.
W I T N E S S E T H:
WHEREAS, Section 13.1(d) of the
Partnership Agreement provides that the General Partner, without
the approval of any Partner, may amend any provision of the
Partnership Agreement to reflect a change that, in the discretion
of the General Partner, does not adversely affect the Limited
Partners in any material respect; and
WHEREAS, the General Partner deems
it in the best interest of the Partnership to effect this Amendment
in order to reduce the highest level of Incentive Distributions
under the Partnership Agreement from 48% to 23%;
WHEREAS, the General Partner deems
it in the best interest of the Partnership to further amend the
Partnership Agreement to provide that the General Partner may be
removed by the vote of at least a Unit Majority (excluding the
Common Units and Subordinated Units held by the General Partner and
its Affiliates);
WHEREAS, the General Partner, as the
sole general partner, on behalf of itself and the Limited Partners,
now desires to, and hereby does, amend the Partnership Agreement to
reflect such amendments; and
WHEREAS, the Board of Directors of
Valero GP, LLC, the general partner of the General Partner,
approved this Amendment effective as of March 4, 2004;
NOW, THEREFORE, the Partnership
Agreement is hereby amended as follows:
Section 1.1 is hereby amended to
delete the definitions of “ Second Liquidation Target
Amount ” and “ Second Target Distribution
”, and the definition of “ Incentive
Distributions ” is hereby amended to delete the
references to Section 6.4(a)(vi) and Section 6.4(b)(iv).
1. Section 6.1(c)(i) is hereby
amended to read in its entirety as follows:
(i) If a Net Termination Gain is
recognized (or deemed recognized pursuant to Section 5.5(d)), such
Net Termination Gain shall be allocated among the General Partner
and the Limited Partners in the following manner (and the Capital
Accounts of the Partners shall be increased by the amount so
allocated in each of the following subclauses, in the order listed,
before an allocation is made pursuant to the next succeeding
subclause):
(A) First, to each Partner having a
deficit balance in its Capital Account, in the proportion that such
deficit balance bears to the total deficit balances in the Capital
Accounts of all Partners, until each such Partner has been
allocated Net Termination Gain equal to any such deficit balance in
its Capital Account;
(B) Second, 98% to all Unitholders
holding Common Units, Pro Rata, and 2% to the General Partner until
the Capital Account in respect of each Common Unit then Outstanding
is equal to the sum of (1) its Unrecovered Capital plus (2) the
Minimum Quarterly Distribution for the Quarter during which the
Liquidation Date occurs, reduced by any distribution pursuant to
Section 6.4(a)(i) or (b)(i) with respect to such Common Unit for
such Quarter (the amount determined pursuant to this clause (2) is
hereinafter defined as the “ Unpaid MQD ”), plus
(3) any then existing Cumulative Common Unit Arrearage;
(C) Third, if such Net Termination
Gain is recognized (or is deemed to be recognized) prior to the
expiration of the Subordination Period, 98% to all Unitholders
holding Subordinated Units, Pro Rata, and 2% to the General Partner
until the Capital Account in respect of each Subordinated Unit then
Outstanding equals the sum of (1) its Unrecovered Capital,
determined for the taxable year (or portion thereof) to which this
allocation of gain relates, plus (2) the Minimum Quarterly
Distribution for the Quarter during which the Liquidation Date
occurs, reduced by any distribution pursuant to Section 6.4(a)(iii)
with respect to such Subordinated Unit for such Quarter;
(D) Fourth, 90% to all Unitholders,
Pro Rata, 8% to the holders of the Incentive Distribution Rights,
Pro Rata, and 2% to the General Partner until the Capital Account
in respect of each Common Unit then Outstanding is equal to the sum
of (1) its Unrecovered Capital, plus (2) the Unpaid MQD, plus (3)
any then existing Cumulative Common Unit Arrear
