FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GENESIS ENERGY, L.P.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS........................................................5
1.1
DEFINITIONS......................................................5
1.2
CONSTRUCTION....................................................17
ARTICLE II
ORGANIZATION.....................................................18
2.1
CONTINUATION OF
EXISTENCE.......................................18
2.2
NAME............................................................18
2.3 REGISTERED
OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE;
OTHER OFFICES...
..............................18
2.4 PURPOSE
AND BUSINESS............................................18
2.5
POWERS..........................................................19
2.6 POWER OF
ATTORNEY...............................................19
2.7
TERM............................................................20
2.8 TITLE TO
PARTNERSHIP ASSETS.....................................20
ARTICLE III RIGHTS OF LIMITED
PARTNERS......................................20
3.1 LIMITATION
OF LIABILITY.........................................20
3.2 MANAGEMENT
OF BUSINESS..........................................20
3.3 OUTSIDE
ACTIVITIES OF THE LIMITED PARTNERS......................21
3.4 RIGHTS OF
LIMITED PARTNERS......................................21
ARTICLE IV CERTIFICATES; RECORD HOLDERS;
TRANSFER OF PARTNERSHIP INTERESTS;
REDEMPTION OF PARTNERSHIP INTERESTS
..21
4.1
CERTIFICATES....................................................21
4.2 MUTILATED,
DESTROYED, LOST OR STOLEN CERTIFICATES..... .........22
4.3 RECORD
HOLDERS..................................................22
4.4 TRANSFER
GENERALLY..............................................23
4.5
REGISTRATION AND TRANSFER OF LIMITED PARTNER
INTERESTS..........23
4.6 TRANSFER
OF A GENERAL PARTNER'S GENERAL PARTNER INTEREST........24
4.7
RESTRICTIONS ON
TRANSFERS.......................................24
4.8
CITIZENSHIP CERTIFICATES; NON-CITIZEN ASSIGNEES..........
......24
4.9 REDEMPTION
OF PARTNERSHIP INTERESTS OF NON-CITIZEN ASSIGNEES....25
ARTICLE V CAPITAL CONTRIBUTIONS AND
ISSUANCE OF PARTNERSHIP INTERESTS.......26
5.1 PREVIOUS
CAPITAL CONTRIBUTIONS..................................26
5.2 ADDITIONAL
CONTRIBUTIONS BY GENERAL PARTNER......... ...........26
5.3 INTEREST
AND WITHDRAWAL.........................................26
5.4 CAPITAL
ACCOUNTS................................................26
5.5 ISSUANCES
OF ADDITIONAL PARTNERSHIP SECURITIES..................28
5.6 LIMITED
PREEMPTIVE RIGHT........................................29
5.7 SPLITS AND
COMBINATIONS.........................................29
5.8 FULLY PAID
AND NON-ASSESSABLE NATURE OF LIMITED PARTNER
INTERESTS...
.................................30
ARTICLE VI ALLOCATIONS AND
DISTRIBUTIONS....................................30
6.1
ALLOCATIONS FOR CAPITAL ACCOUNT
PURPOSES........................30
6.2
ALLOCATIONS FOR TAX
PURPOSES....................................35
6.3
REQUIREMENT AND CHARACTERIZATION OF DISTRIBUTIONS;
DISTRIBUTIONS TO
RECORD HOLDERS...
................36
6.4
DISTRIBUTIONS OF AVAILABLE CASH FROM OPERATING
SURPLUS..........37
6.5
DISTRIBUTIONS OF AVAILABLE CASH FROM CAPITAL SURPLUS...
........37
6.6 ADJUSTMENT
OF MINIMUM QUARTERLY DISTRIBUTION AND TARGET
DISTRIBUTION LEVELS
..........................38
6.7 SPECIAL
PROVISIONS RELATING TO THE HOLDERS OF INCENTIVE
DISTRIBUTION RIGHTS
..........................38
6.8
ENTITY-LEVEL
TAXATION...........................................38
<PAGE>
ARTICLE VII MANAGEMENT AND OPERATION OF
BUSINESS............................38
7.2
MANAGEMENT......................................................38
7.3
CERTIFICATE OF LIMITED
PARTNERSHIP..............................40
7.4
RESTRICTIONS ON GENERAL PARTNER'S
AUTHORITY.....................40
7.5
REIMBURSEMENT OF THE GENERAL
PARTNER............................41
7.6 OUTSIDE
ACTIVITIES..............................................42
7.7 LOANS FROM
THE GENERAL PARTNER; LOANS OR CONTRIBUTIONS FROM
THE PARTNERSHIP; CONTRACTS WITH AFFILIATES; CERTAIN
RESTRICTIONS ON THE GENERAL
PARTNER.............................42
7.8
INDEMNIFICATION.................................................43
7.9 LIABILITY
OF INDEMNITEES........................................45
7.10 RESOLUTION OF
CONFLICTS OF INTEREST.............................45
7.11 OTHER MATTERS
CONCERNING THE GENERAL PARTNER....................46
7.12 PURCHASE OR SALE
OF PARTNERSHIP SECURITIES......................47
7.13 REGISTRATION
RIGHTS OF THE GENERAL PARTNER AND ITS AFFILIATES...47
7.14 RELIANCE BY
THIRD PARTIES.......................................48
ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND
REPORTS.........................49
8.2 RECORDS
AND ACCOUNTING..........................................49
8.3 FISCAL
YEAR.....................................................49
8.4
REPORTS.........................................................49
ARTICLE IX TAX
MATTERS......................................................49
9.2 TAX
RETURNS AND INFORMATION...... ..............................49
9.3 TAX
ELECTIONS...................................................50
9.4 TAX
CONTROVERSIES...............................................50
9.5
WITHHOLDING.....................................................50
ARTICLE X ADMISSION OF
PARTNERS.............................................50
10.1 ADMISSION OF
SUBSTITUTED LIMITED PARTNER........................50
10.2 ADMISSION OF
SUCCESSOR GENERAL PARTNER..........................51
10.3 ADMISSION OF
ADDITIONAL LIMITED PARTNERS........................51
10.4 AMENDMENT OF
AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP...51
ARTICLE XI WITHDRAWAL OR REMOVAL OF
PARTNERS................................51
11.1 WITHDRAWAL OF
THE GENERAL PARTNER...............................51
11.2 REMOVAL OF THE
GENERAL PARTNER..................................53
11.3 INTEREST OF
DEPARTING PARTNER AND SUCCESSOR GENERAL PARTNER.....53
11.4 WITHDRAWAL OF
LIMITED PARTNERS..................................54
ARTICLE XII DISSOLUTION AND
LIQUIDATION.....................................54
12.1
DISSOLUTION.....................................................54
12.2 CONTINUATION OF
THE BUSINESS OF THE PARTNERSHIP AFTER
DISSOLUTION
....................................55
12.3
LIQUIDATOR......................................................55
12.4
LIQUIDATION.....................................................56
12.5 CANCELLATION OF
CERTIFICATE OF LIMITED PARTNERSHIP.. ...........56
12.6 RETURN OF
CONTRIBUTIONS.........................................56
12.7 WAIVER OF
PARTITION.............................................57
12.8 CAPITAL ACCOUNT
RESTORATION.....................................57
ARTICLE XIII AMENDMENT OF PARTNERSHIP
AGREEMENT; MEETINGS;
RECORD DATE.....57
13.1 AMENDMENT TO BE
ADOPTED SOLELY BY THE GENERAL PARTNER...........57
13.2 AMENDMENT
PROCEDURES............................................58
13.3 AMENDMENT
REQUIREMENTS..........................................58
13.4 SPECIAL
MEETINGS................................................59
<PAGE>
13.5 NOTICE OF A
MEETING.............................................59
13.6 RECORD
DATE.....................................................59
13.7
ADJOURNMENT.....................................................59
13.8 WAIVER OF
NOTICE; APPROVAL OF MEETING; APPROVAL OF MINUTES......60
13.9
QUORUM.....................................................
....60
13.10 CONDUCT OF A
MEETING............................................60
13.11 ACTION WITHOUT A
MEETING.................................... ...61
13.12 VOTING AND OTHER
RIGHTS.........................................61
ARTICLE XIV
MERGER..........................................................61
14.1
AUTHORITY.......................................................61
14.2 PROCEDURE FOR
MERGER OR CONSOLIDATION...........................62
14.3 APPROVAL BY
LIMITED PARTNERS OF MERGER OR CONSOLIDATION.........62
14.4 CERTIFICATE OF
MERGER...........................................63
14.5 EFFECT OF
MERGER................................................63
ARTICLE XV RIGHT TO ACQUIRE LIMITED PARTNER
INTERESTS.......................63
15.1 RIGHT TO ACQUIRE
LIMITED PARTNER INTERESTS......................63
ARTICLE XVI GENERAL
PROVISIONS..............................................65
16.1 ADDRESSES AND
NOTICES...........................................65
16.2 FURTHER
ACTION..................................................65
16.3 BINDING
EFFECT..................................................65
16.4
INTEGRATION.................................................
...65
16.5
CREDITORS.......................................................66
16.6
WAIVER..........................................................66
16.7
COUNTERPARTS....................................................66
16.8 APPLICABLE
LAW..................................................66
16.9 INVALIDITY OF
PROVISIONS........................................66
16.10 CONSENT OF
PARTNERS.............................................66
<PAGE> 4
FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GENESIS ENERGY, L.P.
THIS FOURTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
of
Genesis Energy, L.P. dated as of June 9,
2005, is entered into by and among
Genesis Energy, Inc., a Delaware
corporation, as the General Partner, together
with any other Persons who are or who
become Partners in the Partnership or
parties hereto as provided herein. In
consideration of the covenants, conditions
and agreements contained herein, the
parties hereto hereby agree as follows:
WHEREAS, the General Partner and certain other parties organized
the
Partnership as a Delaware limited
partnership pursuant to an Amended and
Restated Agreement of Limited Partnership
dated as of December 3, 1996 (the
"First Amended Agreement");
WHEREAS, on December 7, 2000, the partners of the Partnership
and
Genesis OLP approved by requisite vote a
restructuring (the "Restructuring") of
the Partnership and Genesis OLP pursuant to
which (a) all outstanding
Subordinated LP Units and APIs (each as
defined in the First Amended OLP
Agreement) were eliminated, (b) the First
Amended Agreement and the First
Amended OLP Agreement were amended to,
among other things, reduce the Minimum
Quarterly Distribution, the First Target
Distribution, the Second Target
Distribution and the Third Target
Distribution (each as defined in the First
Amended OLP Agreement) and provide that the
Common Units would not accrue
arrearages if the Minimum Quarterly
Distribution were not paid in full in any
Quarter, (c) Salomon contributed to Genesis
OLP the remaining $3,802,000 of its
distribution support obligation under the
Distribution Support Agreement (the
"Remaining Distribution Support"), (d)
Genesis OLP made a special distribution
of the Remaining Distribution Support less
the cost associated with the
restructuring to the Partnership and the
Partnership made a special distribution
of such amount to the holders of Common
Units, (e) the Distribution Support
Agreement was terminated, (f) the
Partnership withdrew as a general partner of
Genesis OLP and the Partnership's 80.01%
general partner interest in Genesis OLP
represented by 8,801,020 Subordinated GP
Units were converted into a 99.99%
limited partner interest, (g) the General
Partner's 0.40% general partner
interest in Genesis OLP represented by
43,980 Subordinated GP Units were
converted into a 0.01% general partner
interest and (h) Salomon's $300 million
credit support obligation under the Master
Credit Support Agreement was extended
until December 31, 2001 on the existing
terms and conditions;
WHEREAS, on December 7, 2000, the General Partner and certain
other
parties amended and restated the First
Amended Agreement to enter into the
Second Amended and Restated Agreement of
Limited Partnership of Genesis Energy,
L.P. ("Second Amended Agreement'") to
reflect the Restructuring and certain
other changes that, in the discretion of
the General Partner, did not adversely
affect the Limited Partners in any material
respect;
WHEREAS, on May 14, 2002, Genesis Energy, L.L.C., the sole
general
partner, was converted from a Delaware
limited liability company to a Delaware
corporation pursuant to Delaware law and
such corporation is incorporated in the
state of Delaware as Genesis Energy,
Inc.;
WHEREAS, on July 3, 2002, the General Partner proposed to the
Audit
Committee of the Board of Directors of the
General Partner that it desired to
amend Section 11.2 in order to broaden the
rights of limited partners to remove
the General Partner;
WHEREAS, on July 31, 2002, the Audit Committee, after obtaining
the
advice of counsel and an investment banking
firm, unanimously provided Special
Approval of proposed amendments to Section
11.2;
WHEREAS, on July 31, 2002, the General Partner amended and restated
the
Second Amended Agreement (the "Third
Amended Agreement") to amend Section 11.2
in order to broaden the rights of limited
partners to remove the General
Partner, to reflect the change in the
General Partner's name, the conversion of
the General Partner to a Delaware
corporation and certain other changes that, in
the discretion of the General Partner did
not adversely affect the Limited
Partners in any material respect; and
<PAGE> 5
WHEREAS, the General Partner hereby amends and restates the
Third
Amended Agreement as provided herein to
reflect the consummation of the
transactions contemplated by the Conversion
and Contribution Agreement,
including (a) the creation of Incentive
Distribution Rights in the Partnership
in lieu of any incentive distribution
rights in Genesis OLP that resulted from
the conversion pursuant to Section 7.13 of
the Third Amended OLP Agreement, of
the incentive Compensation Payments set out
in Section 7.12 of the Third Amended
OLP Agreement into incentive distribution
rights in Genesis OLP and (b) certain
other conforming changes related to the
foregoing, each of which constitute
changes that, in the discretion of the
General Partner, do not adversely affect
the Limited Partners in any material
respect.
NOW, THEREFORE, in consideration of the premises and other good
and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties hereto hereby
amend and restate the Third Amended
Agreement in its entirety:
ARTICLE I
DEFINITIONS
1.1
Definitions.
The following definitions shall be for all purposes, unless
otherwise
clearly indicated to the contrary, applied
to the terms used in this Agreement.
"Acquisition" means any transaction in which any Group Member
acquires
(through an asset acquisition, merger,
stock acquisition or other form of
investment) control over all or a portion
of the assets, properties or business
of another Person for the purpose of
increasing the operating capacity or
revenues of the Partnership Group from the
operating capacity or revenues of the
Partnership Group existing immediately
prior to such transaction.
"Additional Book Basis" means the portion of any remaining
Carrying
Value of an Adjusted Property that is
attributable to positive adjustments made
to such Carrying Value as a result of
Book-Up Events. For purposes of
determining the extent that Carrying Value
constitutes Additional Book Basis:
(i) Any negative adjustment made to the Carrying Value of an
Adjusted Property as a result of either a Book-Down Event or a
Book-Up
Event shall first be deemed to offset or decrease that portion of
the
Carrying Value of such Adjusted Property that is attributable to
any
prior positive adjustments made thereto pursuant to a Book-Up Event
or
Book-Down Event.
(ii) If Carrying Value that constitutes Additional Book Basis
is reduced as a result of a Book-Down Event and the Carrying Value
of
other property is increased as a result of such Book-Down Event,
an
allocable portion of any such increase in Carrying Value shall
be
treated as Additional Book Basis; provided that the amount treated
as
Additional Book Basis pursuant hereto as a result of such
Book-Down
Event shall not exceed the amount by which the Aggregate Remaining
Net
Positive Adjustments after such Book-Down Event exceeds the
remaining
Additional Book Basis attributable to all of the Partnership's
Adjusted
Property after such Book-Down Event (determined without regard to
the
application of this clause (ii) to such Book-Down Event).
"Additional Book Basis Derivative Items" means any Book Basis
Derivative Items that are computed with
reference to Additional Book Basis. To
the extent that the Additional Book Basis
attributable to all of the
Partnership's Adjusted Property as of the
beginning of any taxable period
exceeds the Aggregate Remaining Net
Positive Adjustments as of the beginning of
such period (the "Excess Additional Book
Basis"), the Additional Book Basis
Derivative Items for such period shall be
reduced by the amount that bears the
same ratio to the amount of Additional Book
Basis Derivative Items determined
without regard to this sentence as the
Excess Additional Book Basis bears to the
Additional Book Basis as of the beginning
of such period.
"Additional Limited Partner" means a Person admitted to the
Partnership
as a Limited Partner pursuant to Section
10.4 and who is shown as such on the
books and records of the Partnership.
<PAGE> 6
"Adjusted Capital Account" means the Capital Account maintained
for
each Partner as of the end of each fiscal
year of the Partnership, (a) increased
by any amounts that such Partner is
obligated to restore under the standards set
by Treasury Regulation Section
1.704-1(b)(2)(ii)(c) (or is deemed obligated to
restore under Treasury Regulation Sections
1.704-2(g) and 1.704-2(i)(5)) and (b)
decreased by (i) the amount of all losses
and deductions that, as of the end of
such fiscal year, are reasonably expected
to be allocated to such Partner in
subsequent years under Sections 704(e)(2)
and 706(d) of the Code and Treasury
Regulation Section 1.751-1(b)(2)(ii), and
(ii) the amount of all distributions
that, as of the end of such fiscal year,
are reasonably expected to be made to
such Partner in subsequent years in
accordance with the terms of this Agreement
or otherwise to the extent they exceed
offsetting increases to such Partner's
Capital Account that are reasonably
expected to occur during (or prior to) the
year in which such distributions are
reasonably expected to be made (other than
increases as a result of a minimum gain
chargeback pursuant to Section 6.1(d)(i)
or 6.1(d)(ii)). The foregoing definition of
Adjusted Capital Account is intended
to comply with the provisions of Treasury
Regulation Section 1.704-
1(b)(2)(ii)(d) and shall be interpreted
consistently therewith. The "Adjusted
Capital Account" of a Partner in respect of
a General Partner Interest, a Common
Unit, or an Incentive Distribution Right or
any other Partnership Interest shall
be the amount that such Adjusted Capital
Account would be if such General
Partner Interest, Common Unit, Incentive
Distribution Right or other Partnership
Interest were the only interest in the
Partnership held by such Partner from and
after the date on which such General
Partner Interest, Common Unit, Incentive
Distribution Right or other Partnership
Interest was first issued.
"Adjusted Property" means any property the Carrying Value of which
has
been adjusted pursuant to Section 5.4(d)(i)
or 5.4(d)(ii).
"Affiliate" means, with respect to any Person, any other Person
that
(i) directly or indirectly through one or
more intermediaries controls, is
controlled by or is under common control
with, the Person in question or (ii)
owns, beneficially, directly or indirectly,
20% or more of the outstanding
capital stock, shares or other equity
interests of the Person in question. As
used herein, the term "control" means the
possession, direct or indirect, of the
power to direct or cause the direction of
the management and policies of a
Person, whether through ownership of voting
securities, by contract or
otherwise.
"Agreed Allocation" means any allocation, other than a Required
Allocation, of an item of income, gain,
loss or deduction pursuant to the
provisions of Section 6.1, including a
Curative Allocation (if appropriate to
the context in which the term "Agreed
Allocation" is used).
"Agreed Value" of any Contributed Property means the fair market
value
of such property or other consideration at
the time of contribution as
determined by the General Partner using
such reasonable method of valuation as
it may adopt. The General Partner shall, in
its discretion, use such method as
it deems reasonable and appropriate to
allocate the aggregate Agreed Value of
Contributed Properties contributed to the
Partnership in a single or integrated
transaction among each separate property on
a basis proportional to the fair
market value of each Contributed
Property.
"Agreement" means this Fourth Amended and Restated Agreement of
Limited
Partnership of Genesis Energy, L.P., as it
may be amended, supplemented or
restated from time to time.
"API" has the meaning assigned to such term in the Fourth Amended
OLP
Agreement.
"Assignee" means a Non-citizen Assignee or a Person to whom one or
more
Limited Partner Interests have been
transferred in a manner permitted under this
Agreement and who has executed and
delivered a Transfer Application as required
by this Agreement, but who has not been
admitted as a Substituted Limited
Partner.
"Associate"
means, when used to indicate a relationship with any
Person, (a) any corporation or organization
of which such Person is a director,
officer or partner or is, directly or
indirectly, the owner of 20% or more of
any class of voting stock or other voting
interest; (b) any trust or other
estate in which such Person has at least a
20% beneficial interest or as to
which such Person serves as trustee or in a
similar fiduciary capacity; and (c)
any relative or spouse of such Person, or
any relative of such spouse, who has
the same principal residence as such
Person.
<PAGE> 7
"Audit Committee" means a committee of the Board of Directors of
the
General Partner composed entirely of two or
more directors who are neither
officers nor employees of the General
Partner or officers, directors or
employees of any Affiliate of the General
Partner.
"Available Cash" means, with respect to any Quarter ending prior to
the
Liquidation Date,
(a) the sum of (i) all cash and cash equivalents of the
Partnership on hand at the end of such
Quarter and (ii) all additional cash and
cash equivalents of the Partnership on hand
on the date of determination of
Available Cash with respect to such Quarter
resulting from borrowings for
working capital purposes, less
(b) the amount of any cash reserves that is necessary or
appropriate in the reasonable discretion of
the General Partner to (i) provide
for the proper conduct of the business of
the Partnership Group (including
reserves for future capital expenditures
and for anticipated future credit needs
of the business of the Partnership Group)
subsequent to such Quarter, (ii)
comply with applicable law or any loan
agreement (including the Master Credit
Support Agreement), security agreement
(including the Security Agreement),
mortgage, debt instrument or other
agreement or obligation to which any Group
Member is a party or by which it is bound
or its assets are subject; or (iii)
provide funds for distributions under
Section 6.4 or 6.5 in respect of any one
or more of the next four Quarters;
provided, however, that disbursements made by
any Group Member or cash reserves
established, increased or reduced after the
end of such Quarter but on or before the
date of determination of Available Cash
with respect to such Quarter shall be
deemed to have been made, established,
increased or reduced, for purposes of
determining Available Cash, within such
Quarter if the General Partner so
determines.
Notwithstanding the foregoing, "Available Cash" with respect to
the
Quarter in which the Liquidation Date
occurs and any subsequent Quarter shall
equal zero.
"Book Basis Derivative Items" means any item of income, deduction,
gain
or loss included in the determination of
Net Income or Net Loss that is computed
with reference to the Carrying Value of an
Adjusted Property (e.g.,
depreciation, depletion, or gain or loss
with respect to an Adjusted Property).
"Book-Down Event" means an event that triggers a negative
adjustment to
the Capital Accounts of the Partners
pursuant to Section 5.4(d).
"Book-Tax Disparity" means, with respect to any item of
Contributed
Property or Adjusted Property, as of the
date of any determination, the
difference between the Carrying Value of
such Contributed Property or Adjusted
Property and the adjusted basis thereof for
federal income tax purposes as of
such date. A Partner's share of the
Partnership's Book-Tax Disparities in all of
its Contributed Property and Adjusted
Property will be reflected by the
difference between such Partner's Capital
Account balance as maintained pursuant
to Section 5.4 and the hypothetical balance
of such Partner's Capital Account
computed as if it had been maintained
strictly in accordance with federal income
tax accounting principles.
"Book-Up Event" means an event that triggers a positive adjustment
to
the Capital Accounts of the Partners
pursuant to Section 5.4(d).
"Business Day" means Monday through Friday of each week, except
that a
legal holiday recognized as such by the
government of the United States of
America or the states of New York or Texas
shall not be regarded as a Business
Day.
"Capital Account" means the capital account maintained for a
Partner
pursuant to Section 5.4. The "Capital
Account" of a Partner in respect of a
General Partner Interest, a Common Unit, an
Incentive Distribution Right or any
Partnership Interest shall be the amount
that such Capital Account would be if
such General Partner Interest, Common Unit,
Incentive Distribution Right or
other Partnership Interest were the only
interest in the Partnership held by
such Partner from and after the date on
which such General Partner Interest,
Common Unit, Incentive Distribution Right
or other Partnership Interest was
first issued.
<PAGE> 8
"Capital Contribution" means any cash, cash equivalents or the
Net
Agreed Value of Contributed Property that a
Partner contributes to the
Partnership.
"Capital Improvement" means any (a) addition or improvement to
the
capital assets owned by any Group Member or
(b) acquisition of existing or the
construction of new capital assets
(including pipeline systems, storage
facilities and related assets), made to
increase the operating capacity or
revenues of the Partnership Group from the
operating capacity or revenues of the
Partnership Group existing immediately
prior to such addition, improvement,
acquisition or construction.
"Capital Surplus" has the meaning assigned to such term in
Section
6.3(a).
"Carrying Value" means (a) with respect to a Contributed Property,
the
Agreed Value of such property reduced (but
not below zero) by all depreciation,
amortization and cost recovery deductions
charged to the Partners' and
Assignees' Capital Accounts in respect of
such Contributed Property, and (b)
with respect to any other Partnership
property, the adjusted basis of such
property for federal income tax purposes,
all as of the time of determination.
The Carrying Value of any property shall be
adjusted from time to time in
accordance with Sections 5.4(d)(i) and
5.4(d)(ii) and to reflect changes,
additions or other adjustments to the
Carrying Value for dispositions and
acquisitions of Partnership properties, as
deemed appropriate by the General
Partner.
"Cause" means a court
of competent jurisdiction has entered a final,
non- appealable judgment finding the
General Partner liable for actual fraud,
gross negligence or willful or wanton
misconduct in its capacity as general
partner of the Partnership.
"Certificate" means a certificate, (i) issued in global form in
accordance with the rules of the Depositary
or (ii) in such other form as may be
adopted by the General Partner in its
discretion, issued by the Partnership
evidencing ownership of one or more Common
Units or a certificate, in such form
as may be adopted by the General Partner in
its discretion, issued by the
Partnership evidencing ownership of one or
more other Partnership Securities.
"Certificate of Limited Partnership" means the Amended and
Restated
Certificate of Limited Partnership of the
Partnership filed with the Secretary
of State of the State of Delaware as
referenced in Section 7.2, as such
Certificate of Limited Partnership may be
amended, supplemented or restated from
time to time.
"Citizenship Certification" means a properly completed certificate
in
such form as may be specified by the
General Partner by which an Assignee or a
Limited Partner certifies that he (and if
he is a nominee holding for the
account of another Person, that to the best
of his knowledge such other Person)
is an Eligible Citizen.
"claim" has the meaning assigned to such term in Section
7.12(c).
"Closing Price" has the meaning assigned to such term in
Section
15.1(a).
"Code" means the Internal Revenue Code of 1986, as amended and
in
effect from time to time. Any reference
herein to a specific section or sections
of the Code shall be deemed to include a
reference to any corresponding
provision of future law.
"Combined Interest" has the meaning assigned to such term in
Section
11.3(a).
"Commission" means the United States Securities and Exchange
Commission.
"Common Unit" means a Partnership Security representing a
fractional
part of the Partnership Interests of all
Limited Partners and Assignees and
having the rights and obligations specified
with respect to a Common Unit in
this Agreement.
"Contributed Property" means each property or other asset, in such
form
as may be permitted by the Delaware Act,
but excluding cash, contributed to the
Partnership. Once the Carrying Value of a
Contributed Property is adjusted
<PAGE> 9
pursuant to Section 5.4(d), such property
shall no longer constitute a
Contributed Property, but shall be deemed
an Adjusted Property.
"Conversion and Contribution Agreement" means the Conversion
and
Contribution Agreement, dated May 26, 2005,
among the Partnership, the General
Partner and Genesis OLP.
"Conveyance Agreement" means that certain Purchase & Sale
and
Contribution & Conveyance Agreement,
dated as of November 26, 1996, among the
Partnership, Genesis OLP, Genesis Energy,
L.L.C., Howell and a Subsidiary of
Salomon, together with the additional
conveyance documents and instruments
contemplated or referenced thereunder.
"Curative Allocation" means any allocation of an item of income,
gain,
deduction, loss or credit pursuant to the
provisions of Section 6.1(d)(x).
"Current Market Price" has the meaning assigned to such term in
Section
15.1(a).
"Delaware Act" means the Delaware Revised Uniform Limited
Partnership
Act, 6 Del C. Section 17-101, et seq., as
amended, supplemented or restated from
time to time, and any successor to such
statute.
"Departing Partner" means a former General Partner from and after
the
effective date of any withdrawal or removal
of such former General Partner
pursuant to Section 11.1 or 11.2.
"Depositary" means, with respect to any Units issued in global
form,
The Depository Trust Company and its
successors and permitted assigns.
"Distribution Support Agreement" means the Distribution Support
Agreement, dated as of December 3, 1996,
between the Genesis OLP and Salomon,
which sets forth the agreement of the
Partnership and Salomon relating to the
purchase of APIs.
"Economic Risk of Loss" has the meaning set forth in Treasury
Regulation Section 1.752-2(a).
"Eligible Citizen" means a Person qualified to own interests in
real
property in jurisdictions in which any
Group Member does business or proposes to
do business from time to time, and whose
status as a Limited Partner or Assignee
does not or would not subject such Group
Member to a significant risk of
cancellation or forfeiture of any of its
properties or any interest therein.
"Event of Withdrawal" has the meaning assigned to such term in
Section
11.1(a).
"First Amended Agreement" has the meaning assigned to such term in
the
recitals to this Agreement.
"First Amended OLP Agreement" means the Amended and Restated
Agreement
of Limited Partnership of Genesis Crude
Oil, L.P., dated as of December 3, 1996.
"First Liquidation Target Amount" has the meaning assigned to such
term
in Section 6.1(c)(i)(C).
"First Target Distribution" means $0.25 per Unit per Quarter,
subject
to adjustment in accordance with Sections
6.6 and 6.8.
"Fourth Amended OLP Agreement" means the Fourth Amended and
Restated
Agreement of Limited Partnership of Genesis
Crude Oil, L.P., dated as of the
date of this Agreement, as it may be
amended, supplemented or restated from time
to time.
"General Partner" means Genesis Energy, Inc. and its successors
and
permitted assigns as general partner of the
Partnership.
<PAGE> 10
"General Partner Interest" means the ownership interest of the
General
Partner in the Partnership (in its capacity
as a general partner without
reference to any Limited Partner Interest
held by it), which may be evidenced by
Partnership Securities or a combination
thereof or interest therein, and
includes any and all benefits to which the
General Partner is entitled as
provided in this Agreement, together with
all obligations of the General Partner
to comply with the terms and provisions of
this Agreement.
"Genesis OLP" means Genesis Crude Oil, L.P., a Delaware limited
partnership, and its successors.
"GP Unit" means a Partnership Security representing a fractional
part
of the Partnership Interest of the General
Partner and having the rights and
obligations specified with respect to GP
Units in the Third Amended Agreement.
"Group" means a Person that with or through any of its Affiliates
or
Associates has any agreement, arrangement
or understanding for the purpose of
acquiring, holding, voting (except voting
pursuant to a revocable proxy or
consent given to such Person in response to
a proxy or consent solicitation made
to 10 or more Persons) or disposing of any
Partnership Securities with any other
Person that beneficially owns, or whose
Affiliates or Associates beneficially
own, directly or indirectly, Partnership
Securities.
"Group Member" means a member of the Partnership Group.
"Holder" as used in Section 7.12, has the meaning assigned to such
term
in Section 7.12(a).
"Howell" means Howell Corporation and its Subsidiaries.
"Incentive Compensation Payment" has the meaning assigned to such
term
in the Third Amended OLP Agreement.
"Incentive Distribution Right" means a non-voting Limited
Partner
Interest issued to the General Partner in
connection with the conversion and
contribution of all of its Incentive
Compensation Payments in Genesis OLP to the
Partnership pursuant to the Conversion and
Contribution Agreement, which Limited
Partner Interest will confer upon the
holder thereof only the rights and
obligations specifically provided in this
Agreement with respect to Incentive
Distribution Rights (and no other rights
otherwise available to or other
obligations of a holder of a Limited
Partner Interest). Notwithstanding anything
in this Agreement to the contrary, the
holder of an Incentive Distribution Right
shall not be entitled to vote such
Incentive Distribution Right on any
Partnership matter except as may otherwise
be required by law.
"Incentive Distributions" means any amount of cash distributed to
the
holders of the Incentive Distribution
Rights pursuant to Section 6.4(a)(iii),
(iv) and (v).
"Indemnified Persons" has the meaning assigned to such term in
Section
7.12(c).
"Indemnitee" means (a) the General Partner, any Departing Partner
and
any Person who is or was an Affiliate of
the General Partner or any Departing
Partner, (b) any Person who is or was a
director, officer, employee, agent or
trustee of a Group Member, (c) any Person
who is or was a member, officer,
director, employee, agent or trustee of the
General Partner or any Departing
Partner or any Affiliate of the General
Partner or any Departing Partner, or any
Affiliate of any such Person, and (d) any
Person who is or was serving at the
request of the General Partner or any
Departing Partner or any such Affiliate as
a director, officer, employee, member,
partner, agent, fiduciary or trustee of
another Person; provided, that a Person
shall not be an Indemnitee by reason of
providing, on a fee-for-services basis,
trustee, fiduciary or custodial
services.
"Initial Closing Date" means December 3, 1996.
"Initial Unit Price" means, with respect to any Common Unit
$20.625,
adjusted as appropriate to give effect to
any distribution, subdivision or
combination of Common Units.
<PAGE> 11
"Initial Offering" means the initial offering and sale of Common
Units
to the public on December 3, 1996, as
described in the Registration Statement.
"Interim Capital Transactions" means the following transactions if
they
occur prior to the Liquidation Date: (a)
borrowings, refinancings or refundings
of indebtedness and sales of debt
securities (other than for working capital
purposes and other than for items purchased
on open account in the ordinary
course of business) by any Group Member;
(b) sales of equity interests by any
Group Member; and (c) sales or other
voluntary or involuntary dispositions of
any assets of any Group Member other than
(i) sales or other dispositions of
inventory in the ordinary course of
business, (ii) sales or other dispositions
of other current assets, including
receivables and accounts in the ordinary
course of business and (iii) sales or other
dispositions of assets as part of
normal retirements or replacements.
"Limited Partner" means, unless the context otherwise requires,
(a)
each Initial Limited Partner, each
Substituted Limited Partner, each Additional
Limited Partner, and any Partner upon the
change of its status from General
Partner to Limited Partner pursuant to
Section 11.3 and (b) solely for purposes
of Articles V, VI, VII and IX and Section
12.4, each Assignee; provided,
however, that when the term "Limited
Partner" is used herein in the context of
any vote or other approval, including
Articles XIII and XIV, such term shall
not, solely for such purpose, include any
holder of an Incentive Distribution
Right except as may otherwise be required
by law.
"Limited Partner
Interest" means the ownership interest of a Limited
Partner or Assignee in the Partnership,
which may be evidenced by Common Units
or other Partnership Securities or a
combination thereof or interest therein,
and includes any and all benefits to which
such Limited Partner or Assignee is
entitled as provided in this Agreement,
together with all obligations of such
Limited Partner or Assignee to comply with
the terms and provisions of this
Agreement; provided, however, that when the
term "Limited Partner Interest" is
used herein in the context of any vote or
other approval, including Articles
XIII and XIV, such term shall not, solely
for such purpose, include any holder
of an Incentive Distribution Right except
as may otherwise be required by law.
"Liquidation Date" means (a) in the case of an event giving rise to
the
dissolution of the Partnership of the type
described in clauses (a) and (b) of
the first sentence of Section 12.2, the
date on which the applicable time period
during which the Partners have the right to
elect to reconstitute the
Partnership and continue its business has
expired without such an election being
made, and (b) in the case of any other
event giving rise to the dissolution of
the Partnership, the date on which such
event occurs.
"Liquidator" means one or more Persons selected by the General
Partner
to perform the functions described in
Section 12.3 as liquidating trustee of the
Partnership within the meaning of the
Delaware Act.
"Majority Interest" means at least a majority in Voting Power of
the
Outstanding Limited Partner Interests.
"Master Credit Support Agreement" means the Master Credit
Support
Agreement, dated as of December 3, 1996, as
amended, between Genesis OLP and
Salomon which sets forth the agreement of
Genesis OLP and Salomon relating to
the credit support to be provided by
Salomon to Genesis OLP.
"Merger Agreement" has the meaning assigned to such term in
Section
14.1.
"Minimum Quarterly Distribution" means $0.20 per Unit per
Quarter,
subject to adjustment in accordance with
Sections 6.6 and 6.8.
"National Securities Exchange" means an exchange registered with
the
Commission under Section 6(a) of the
Securities Exchange Act of 1934, as
amended, supplemented or restated from time
to time, and any successor to such
statute, or the NASDAQ Stock Market or any
successor thereto.
"Net Agreed Value" means, (a) in the case of any Contributed
Property,
the Agreed Value of such property reduced
by any liabilities either assumed by
the Partnership upon such contribution or
to which such property is subject when
contributed, and (b) in the case of any
property distributed to a Partner or
Assignee by the Partnership,
<PAGE> 12
the Partnership's Carrying Value of such
property
(as adjusted pursuant to Section
5.4(d)(ii)) at the time such property is
distributed, reduced by any indebtedness
either assumed by such Partner or
Assignee upon such distribution or to which
such property is subject at the time
of distribution, in either case, as
determined under Section 752 of the Code.
"Net Income" means, for any taxable year, the excess, if any, of
the
Partnership's items of income and gain
(other than those items taken into
account in the computation of Net
Termination Gain or Net Termination Loss) for
such taxable year over the Partnership's
items of loss and deduction (other than
those items taken into account in the
computation of Net Termination Gain or Net
Termination Loss) for such taxable year.
The items included in the calculation
of Net Income shall be determined in
accordance with Section 5.4(b) and shall
not include any items specially allocated
under Section 6.1(d); provided that
the determination of the items that have
been specially allocated under Section
6.1(d) shall be made as if Section
6.1(d)(xi) were not in this Agreement.
"Net Loss" means, for any taxable year, the excess, if any, of
the
Partnership's items of loss and deduction
(other than those items taken into
account in the computation of Net
Termination Gain or Net Termination Loss) for
such taxable year over the Partnership's
items of income and gain (other than
those items taken into account in the
computation of Net Termination Gain or Net
Termination Loss) for such taxable year.
The items included in the calculation
of Net Loss shall be determined in
accordance with Section 5.4(b) and shall not
include any items specially allocated under
Section 6.1(d); provided that the
determination of the items that have been
specially allocated under Section
6.1(d) shall be made as if Section
6.1(d)(xi) were not in this Agreement.
"Net Positive Adjustments" means, with respect to any Partner,
the
excess, if any, of the total positive
adjustments over the total negative
adjustments made to the Capital Account of
such Partner pursuant to Book-Up
Events and Book-Down Events.
"Net Termination Gain" means, for any taxable year, the sum, if
positive, of all items of income, gain,
loss or deduction recognized by the
Partnership after the Liquidation Date. The
items included in the determination
of Net Termination Gain shall be determined
in accordance with Section 5.4(b)
and shall not include any items of income,
gain or loss specially allocated
under Section 6.1(d).
"Net Termination Loss" means, for any taxable year, the sum, if
negative, of all items of income, gain,
loss or deduction recognized by the
Partnership after the Liquidation Date. The
items included in the determination
of Net Termination Loss shall be determined
in accordance with Section 5.4(b)
and shall not include any items of income,
gain or loss specially allocated
under Section 6.1(d).
"Ninety Percent Interest" means at least 90% in Voting Power of
the
Outstanding Limited Partner Interests.
"Non-citizen Assignee" means a Person whom the General Partner
has
determined in its discretion does not
constitute an Eligible Citizen and as to
whose Limited Partner Interest the General
Partner has become the Substituted
Limited Partner, pursuant to Section
4.8.
"Non-Competition Agreement" means the Non-Competition Agreement,
dated
as of December 3, 1996, among the
Partnership, Genesis OLP, Salomon, Basis
Petroleum, Inc. and Howell.
"Nonrecourse Built-in Gain" means with respect to any
Contributed
Properties or Adjusted Properties that are
subject to a mortgage or pledge
securing a Nonrecourse Liability, the
amount of any taxable gain that would be
allocated to the Partners pursuant to
Sections 6.2(b)(i)(A), 6.2(b)(ii)(A) and
6.2(b)(iii) if such properties were
disposed of in a taxable transaction in full
satisfaction of such liabilities and for no
other consideration.
"Nonrecourse Deductions" means any and all items of loss, deduction
or
expenditures (including any expenditure
described in Section 705(a)(2)(B) of the
Code) that, in accordance with the
principles of Treasury Regulation Section
1.704-2(b), are attributable to a
Nonrecourse Liability.
"Nonrecourse Liability" has the meaning set forth in Treasury
Regulation Section 1.752-1(a)(2).
<PAGE> 13
"Notice of Election to Purchase" has the meaning assigned to such
term
in Section 15.1(b) hereof.
"Operating Expenditures" means all Partnership Group
expenditures,
including, but not limited to, taxes,
reimbursements of the General Partner,
debt service payments, guarantee fees and
capital expenditures, subject to the
following:
(a) Payments
(including prepayments) of principal of and premium
on indebtedness shall not be an Operating
Expenditure if the payment is (i)
required in connection with the sale or
other disposition of assets or (ii) made
in connection with the refinancing or
refunding of indebtedness with the
proceeds from new indebtedness or from the
sale of equity interests. For
purposes of the foregoing, at the election
and in the reasonable discretion of
the General Partner, any payment of
principal or premium shall be deemed to be
refunded or refinanced by any indebtedness
incurred or to be incurred by the
Partnership Group within 180 days before or
after such payment to the extent of
the principal amount of such
indebtedness.
(b) Operating
Expenditures shall not include (i) capital
expenditures made for Acquisitions or for
Capital Improvements, (ii) payment of
transaction expenses relating to Interim
Capital Transactions or (iii)
distributions to Partners. Where capital
expenditures are made in part for
Acquisitions or for Capital Improvements
and in part for other purposes, the
General Partner's good faith allocation
between the amounts paid for each shall
be conclusive.
"Operating Surplus" means, with respect to any period ending prior
to
the Liquidation Date, on a cumulative basis
and without duplication,
(a) the sum of (i) $20
million plus all cash and cash equivalents
of the Partnership Group on hand as of the
close of business on the Initial
Closing Date, (ii) all cash receipts of the
Partnership Group for the period
beginning on the Initial Closing Date and
ending with the last day of such
period, other than cash receipts from
Interim Capital Transactions (except to
the extent specified in Section 6.5) and
(iii) all cash receipts of the
Partnership Group after the end of such
period but on or before the date of
determination of Operating Surplus with
respect to such period resulting from
borrowings for working capital purposes,
less
(b) the sum of (i)
Operating Expenditures for the period beginning
on the Initial Closing Date and ending with
the last day of such period and (ii)
the amount of cash reserves that is
necessary or advisable in the reasonable
discretion of the General Partner to
provide funds for future Operating
Expenditures provided, however, that
disbursements made (including contributions
to a Group Member or disbursements on
behalf of a Group Member) or cash reserves
established, increased or reduced after the
end of such period but on or before
the date of determination of Available Cash
with respect to such period shall be
deemed to have been made, established,
increased or reduced for purposes of
determining Operating Surplus, within such
period if the General Partner so
determines.
Notwithstanding the foregoing, "Operating Surplus" with respect to
the
Quarter in which the Liquidation Date
occurs and any subsequent Quarter shall
equal zero.
"Opinion of Counsel" means a written opinion of counsel (who may
be
regular counsel to the Partnership or the
General Partner or any of their
Affiliates) acceptable to the General
Partner in its reasonable discretion.
"Outstanding" means, with respect to Partnership Securities,
all
Partnership Securities that are issued by
the Partnership and reflected as
outstanding on the Partnership's books and
records as of the date of
determination; provided, however, that if
at any time any Person or Group (other
than the General Partner or its Affiliates)
beneficially owns 20% or more of any
Outstanding Partnership Securities of any
class then Outstanding, all
Partnership Securities owned by such Person
or Group shall not be voted on any
matter and shall not be considered to be
Outstanding when sending notices of a
meeting of Limited Partners to vote on any
matter (unless otherwise required by
law), calculating required votes,
determining the presence of a quorum or for
other similar purposes under this
Agreement, except that such Partnership
Securities shall be considered to be
Outstanding for purposes of
<PAGE> 14
Section 11.1(b)(iv) (such Partnership
Securities shall not, however, be treated
as aseparate class of Partnership
Securities for purposes of this Agreement).
"Partner" means the General Partner and each Limited Partner.
"Partner Nonrecourse Debt" has the meaning set forth in
Treasury
Regulation Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth
in
Treasury Regulation Section
1.704-2(i)(2).
"Partner Nonrecourse Deductions" means any and all items of
loss,
deduction or expenditure (including any
expenditure described in Section
705(a)(2)(B) of the Code) that, in
accordance with the principles of Treasury
Regulation Section 1.704-2(i), are
attributable to a Partner Nonrecourse Debt.
"Partnership" means Genesis Energy, L.P., a Delaware limited
partnership, and any successors
thereto.
"Partnership Group" means the Partnership and its Subsidiaries,
treated
as a single consolidated entity.
"Partnership Interest" means an ownership interest in the
Partnership,
which shall include General Partner
Interests and Limited Partner Interests.
"Partnership Minimum Gain" means that amount determined in
accordance
with the principles of Treasury Regulation
Section 1.704-2(d).
"Partnership Security" means any class or series of equity interest
in
the Partnership (but excluding any options,
rights, warrants and appreciation
rights relating to an equity interest in
the Partnership), including Common
Units and Incentive Distribution
Rights.
"Percentage Interest" means as of any date of determination (a) as
to
the General Partner (in its capacity as
General Partner without reference to any
Limited Partner Interests held by it),
2.0%, (b) as to any Unitholder or
Assignee holding Units, the product
obtained by multiplying (i) 98% less the
percentage applicable to paragraph (c) by
(ii) the quotient obtained by dividing
(A) the number of Units held by such
Unitholder or Assignee by (B) the total
number of all Outstanding Units, and (c) as
to the holders of additional
Partnership Securities issued by the
Partnership in accordance with Section 5.5,
the percentage established as a part of
such issuance. The Percentage Interest
with respect to an Incentive Distribution
Right shall at all times be zero.
"Person" means an individual or a corporation, limited
liability
company, partnership, joint venture, trust,
unincorporated organization,
association, government agency or political
subdivision thereof or other entity.
"Pro Rata" means (a) when modifying Units or any class thereof,
apportioned among all designated Units in
accordance with their relative
Percentage Interests, (b) when modifying
Partners and Assignees, apportioned
among all Partners and Assignees in
accordance with their relative Percentage
Interests and (c) when modifying holders of
Incentive Distribution Rights,
apportioned equally among all holders of
Incentive Distribution Rights in
accordance with the relative number or
percentage of Incentive Distribution
Rights held by each such holder.
"Proxy Statement" means the definitive Proxy Statement filed by
the
Partnership with the Commission under the
Securities Exchange Act of 1934, as
amended, for the purpose of soliciting the
votes of the holders of Common Units
with respect to the Restructuring, as it
has been or as it may be amended or
supplemented from time to time.
"Purchase Date" means the date determined by the General Partner as
the
date for purchase of all Limited Partner
Interests of a certain class (other
than Limited Partner Interests owned by the
General Partner and its Affiliates)
pursuant to Article XV.
<PAGE> 15
"Quarter" means, unless the context requires otherwise, a
calendar
quarter.
"Recapture Income" means any gain recognized by the Partnership
(computed without regard to any adjustment
required by Section 734 or Section
743 of the Code) upon the disposition of
any property or asset of the
Partnership, which gain is characterized as
ordinary income because it
represents the recapture of deductions
previously taken with respect to such
property or asset.
"Record Date" means the date established by the General Partner
for
determining (a) the identity of the Record
Holders entitled to notice of, or to
vote at, any meeting of Limited Partners or
entitled to vote by ballot or give
approval of Partnership action in writing
without a meeting or entitled to
exercise rights in respect of any lawful
action of Limited Partners or (b) the
identity of Record Holders entitled to
receive any report or distribution or
participate in any offer.
"Record Holder" means the Person in whose name a Common Unit is
registered on the books of the Transfer
Agent as of the opening of business on a
particular Business Day, or with respect to
other Partnership Securities, the
Person in whose name any such other
Partnership Security is registered on the
books that the General Partner has caused
to be kept as of the opening of
business on such Business Day.
"Redeemable Interests" means any Limited Partner Interests for
which a
redemption notice has been given, and has
not been withdrawn, pursuant to
Section 4.9.
"Registration Statement" means the Registration Statement on Form
S-1
(Registration No. 333-11545) as amended,
filed by the Partnership with the
Commission under the Securities Act to
register the offering and sale of the
Common Units in the Initial Offering.
"Remaining Net Positive Adjustments" means as of the end of any
taxable
period, (i) with respect to the Unitholders
holding Common Units, the excess of
(a) the Net Positive Adjustments of the
Unitholders holding Common Units as of
the end of such period over (b) the sum of
those Partners' Share of Additional
Book Basis Derivative Items for each prior
taxable period, (ii) with respect to
the General Partner (as holder of the
General Partner Interest), the excess of
(a) the Net Positive Adjustments of the
General Partner as of the end of such
period over (b) the sum of the General
Partner's Share of Additional Book Basis
Derivative Items with respect to the
General Partner Interest for each prior
taxable period, and (iii) with respect to
the holders of Incentive Distribution
Rights, the excess of (a) the Net Positive
Adjustments of the holders of
Incentive Distribution Rights as of the end
of such period over (b) the sum of
the Share of Additional Book Basis
Derivative Items of the holders of the
Incentive Distribution Rights for each
prior taxable period.
"Required Allocations" means (a) any limitation imposed on any
allocation of Net Losses or Net Termination
Losses under Section 6.1(b) or
6.1(c)(ii) and (b) any allocation of an
item of income, gain, loss or deduction
pursuant to Section 6.1(d)(i), 6.1(d)(ii),
6.1(d)(iv), 6.1(d)(vii) or
6.1(d)(ix).
"Residual Gain" or "Residual Loss" means any item of gain or loss,
as
the case may be, of the Partnership
recognized for federal income tax purposes
resulting from a sale, exchange or other
disposition of a Contributed Property
or Adjusted Property, to the extent such
item of gain or loss is not allocated
pursuant to Section 6.2(b)(i)(A) or
6.2(b)(ii)(A), respectively, to eliminate
Book-Tax Disparities.
"Restructuring" has the meaning set forth in the recitals to
this
Agreement.
"Salomon" means Salomon Smith Barney Holdings Inc, a Delaware
corporation, and Salomon Brothers Holdings,
Inc., a Delaware corporation.
"Second Amended Agreement" has the meaning assigned to such term in
the
recitals.
"Second Amended OLP Agreement" means the Second Amended and
Restated
Agreement of Limited Partnership of Genesis
OLP dated as of December 7, 2000.
<PAGE> 16
"Second Liquidation Target Amount" has the meaning assigned to
such
term in Section 6.1(c)(i)(D).
"Second Target
Distribution" means $0.28 per Unit per Quarter, subject
to adjustment in accordance with Sections
6.6 and 6.8.
"Securities Act" means the Securities Act of 1933, as amended,
supplemented or restated from time to time
and any successor to such statute.
"Security Agreement" means the Security Agreement, dated as of
December
3, 1996, among Genesis OLP,. Salomon and
the Secured Parties (as defined in the
Security Agreement) securing the
obligations of Genesis OLP under the Master
Credit Support Agreement and creating a
security interest in the Collateral (as
defined in the Security Agreement) in favor
of the Collateral Agent (as defined
in the Security Agreement).
"Share of Additional Book Basis Derivative Items" means in
connection
with any allocation of Additional Book
Basis Derivative Items for any taxable
period, (i) with respect to the Unitholders
holding Common Units, the amount
that bears the same ratio to such
Additional Book Basis Derivative Items as the
Unitholders' Remaining Net Positive
Adjustments as of the end of such period
bears to the Aggregate Remaining Net
Positive Adjustments as of that time, (ii)
with respect to the General Partner (as
holder of the General Partner Interest),
the amount that bears the same ratio to
such Additional Book Basis Derivative
Items as the General Partner's Remaining
Net Positive Adjustments as of the end
of such period bears to the Aggregate
Remaining Net Positive Adjustment as of
that time, and (iii) with respect to the
Partners holding Incentive Distribution
Rights, the amount that bears the same
ratio to such Additional Book Basis
Derivative Items as the Remaining Net
Positive Adjustments of the Partners
holding the Incentive Distribution Rights
as of the end of such period bears to
the Aggregate Remaining Net Positive
Adjustments as of that time.
"Special Approval" means approval by a majority of the members of
the
Audit Committee.
"Subsidiary" means, with respect to any Person, (a) a corporation
of
which more than 50% of the voting power of
shares entitled (without regard to
the occurrence of any contingency) to vote
in the election of directors or other
governing body of such corporation is
owned, directly or indirectly, at the date
of determination, by such Person, by one or
more Subsidiaries of such Person or
a combination thereof, (b) a partnership
(whether general or limited) in which
such Person or a Subsidiary of such Person
is, at the date of determination, a
general or limited partner of such
partnership, but only if more than 50% of the
partnership interests of such partnership
(considering all of the partnership
interests of such partnership as a single
class) is owned, directly or
indirectly, at the date of determination,
by such Person, by one or more
Subsidiaries of such Person, or a
combination thereof, or (c) any other Person
(other than a corporation or a partnership)
in which such Person, one or more
Subsidiaries of such Person, or a
combination thereof, directly or indirectly,
at the date of determination, has (i) at
least a majority ownership interest or
(ii) the power to elect or direct the
election of a majority of the directors or
other governing body of such Person.
"Substituted Limited Partner" means a Person who is admitted as
a
Limited Partner to the Partnership pursuant
to Section 10.1 in place of and with
all the rights of a Limited Partner and who
is shown as a Limited Partner on the
books and records of the Partnership.
"Surviving Business Entity" has the meaning assigned to such term
in
Section 14.2(b).
"Third Amended Agreement" has the meaning assigned to such term in
the
recitals.
"Third Amended OLP Agreement" means the Third Amended and
Restated
Agreement of Limited Partnership of Genesis
OLP, dated as of July 31, 2002.
"Third Liquidation Target Amount" has the meaning assigned to such
term
in Section 6.1(c)(i)(E).
<PAGE> 17
"Third Target Distribution" means $0.33 per Unit per Quarter,
subject
to adjustment in accordance with Sections
6.6 and 6.8.
"Trading Day" has the meaning assigned to such term in Section
15.1(a).
"Transfer" has the meaning assigned to such term in Section
4.4(a).
"Transfer Agent" means such bank, trust company or other Person
(including the General Partner or one of
its Affiliates) as shall be appointed
from time to time by the Partnership to act
as registrar and transfer agent for
the Common Units.
"Transfer Application" means an application and agreement for
transfer
of Partnership Securities in the form set
forth on the back of a Certificate or
in a form substantially to the same effect
in a separate instrument.
"Two-Thirds Interest" means at least 66?% in Voting Power of
the
Outstanding Limited Partner Interests.
"Unit" means a Partnership Security that is designated as a "Unit"
and
shall include Common Units but shall not
include (a) a General Partner Interest
or (b) Incentive Distribution Rights.
"Unitholders" mean the holders of Units.
"Unpaid MQD" has the meaning assigned to such term in Section
6.1(c)(i)(B).
"Unrealized Gain" attributable to any item of Partnership
property
means, as of any date of determination, the
excess, if any, of (a) the fair
market value of such property as of such
date (as determined under Section
5.4(d)) over (b) the Carrying Value of such
property as of such date (prior to
any adjustment to be made pursuant to
Section 5.4(d) as of such date).
"Unrealized Loss" attributable to any item of Partnership
property
means, as of any date of determination, the
excess, if any, of (a) the Carrying
Value of such property as of such date
(prior to any adjustment to be made
pursuant to Section 5.4(d) as of such date)
over (b) the fair market value of
such property as of such date (as
determined under Section 5.4(d)).
"Unrecovered Capital" means at any time, with respect to a Unit,
the
Initial Unit Price less the sum of (i) all
distributions constituting Capital
Surplus theretofore made in respect of a
Common Unit sold in the initial
offering and sale of Common Units to the
public, as described in the
Registration Statement and (ii) any
distributions of cash (or the Net Agreed
Value of any distributions in kind) in
connection with the dissolution and
liquidation of the Partnership theretofore
made in respect of such a Common
Unit, adjusted as the General Partner
determines to be appropriate to give
effect to any distribution, subdivision or
combination of such Units.
"U.S.
GAAP" means United States Generally Accepted Accounting
Principles consistently applied.
"Voting Power" means the right, if any, of the holder of a
Partnership
Security to vote on Partnership matters.
Each Common Unit shall entitle the
holder thereof to one vote. Each additional
Partnership Security shall entitle
the holder thereof to such vote, if any, as
shall be established at the time of
issuance of such Partnership Security.
"Withdrawal Opinion of Counsel" has the meaning assigned to such
term
in Section 11.1(b).
1.2
Construction.
Unless the context requires otherwise: (a) any pronoun used in
this
Agreement shall include the corresponding
masculine, feminine or neuter forms,
and the singular form of nouns, pronouns
and verbs shall include the plural and
<PAGE> 18
vice versa; (b) references to Articles and
Sections refer to Articles and
Sections of this Agreement; and (c) the
term "include" or "includes" means
includes, without limitation, and
"including" means including, without
limitation.
ARTICLE II
ORGANIZATION
2.1
Continuation of Existence.
The General Partner and the Limited Partners hereby amend and
restate
the Third Amended Agreement in its entirety
to continue the Partnership as a
limited partnership pursuant to the
provisions of the Delaware Act and to set
forth the rights and obligations of the
Partners and certain matters related
thereto. This amendment and restatement
shall become effective on the date of
this Agreement. Except as expressly
provided to the contrary in this Agreement,
the rights, duties (including fiduciary
duties), liabilities and obligations of
the Partners and the administration,
dissolution and termination of the
Partnership shall be governed by the
Delaware Act. All Partnership Interests
shall constitute personal property of the
owner thereof for all purposes and a
Partner has no interest in specific
Partnership property.
2.2 Name
The name of the
Partnership shall be "Genesis Energy, L.P." The
Partnership's business may be conducted
under any other name or names deemed
necessary or appropriate by the General
Partner in its sole discretion,
including the name of the General Partner.
The words "Limited Partnership,"
"L.P.," "Ltd." or similar words or letters
shall be included in the
Partnership's name where necessary for the
purpose of complying with the laws of
any jurisdiction that so requires. The
General Partner in its discretion may
change the name of the Partnership at any
time and from time to time and shall
notify the Limited Partners of such change
in the next regular communication to
the Limited Partners.
2.3 Registered
Office; Registered Agent; Principal Office; Other Offices.
Unless and until changed by the General Partner, the registered
office
of the Partnership in the State of Delaware
shall be located at 1209 Orange
Street, New Castle County, Wilmington,
Delaware 19801, and the registered agent
for service of process on the Partnership
in the State of Delaware at such
registered office shall be CT Corporation
System. The principal office of the
Partnership shall be located at 500 Dallas,
Suite 2500, Houston, Texas 77002 or
such other place as the General Partner may
from time to time designate by
notice to the Limited Partners. The
Partnership may maintain offices at such
other place or places within or outside the
State of Delaware as the General
Partner deems necessary or appropriate. The
address of the General Partner shall
be 500 Dallas, Suite 2500, Houston, Texas
77002 or such other place as the
General Partner may from time to time
designate by notice to the Limited
Partners.
2.4 Purpose
and Business.
The purpose and nature of the business to be conducted by the
Partnership shall be to (a) engage directly
in, or enter into or form any
corporation, partnership, joint venture,
limited liability company or other
arrangement to engage indirectly in, any
business activity that Genesis OLP is
permitted to engage in by the Fourth
Amended OLP Agreement and, in connection
therewith, to exercise all of the rights
and powers conferred upon the
Partnership pursuant to the agreements
relating to such business activity, (b)
engage directly in, or to enter into or
form any corporation, partnership, joint
venture, limited liability company or other
arrangement to engage indirectly in,
any business activity that is approved by
the General Partner and which lawfully
may be conducted by a limited partnership
organized pursuant to the Delaware Act
and, in connection therewith, to exercise
all of the rights and powers conferred
upon the Partnership pursuant to the
agreements relating to such business
activity, and (c) do anything necessary or
appropriate to the foregoing,
including the making of capital
contributions or loans to a Group Member. The
General Partner has no obligation or duty
to the Partnership, the Limited
Partners, or the Assignees to propose or
approve, and in its discretion may
decline to propose or approve, the conduct
by the Partnership of any business.
<PAGE> 19
2.5
Powers.
The Partnership shall be empowered to do any and all acts and
things
necessary, appropriate, proper, advisable,
incidental to or convenient for the
furtherance and accomplishment of the
purposes and business described in Section
2.4 and for the protection and benefit of
the Partnership.
2.6 Power of
Attorney.
(a) Each
Limited Partner and each Assignee hereby constitutes and
appoints
the General Partner and, if a Liquidator shall have been
selected
pursuant to Section 12.3, the Liquidator, severally (and any
successor
to the Liquidator by merger, transfer, assignment, election or
otherwise) and each of their authorized officers and
attorneys-in-fact,
as the case may be, with full power of substitution, as his true
and
lawful agent and attorney-in-fact, with full power and authority in
his
name, place and stead, to:
(i) execute,
swear to, acknowledge, deliver, file and record in the
appropriate public
offices (A) all certificates, documents and
other instruments
(including
this Agreement and the
Certificate
of Limited Partnership
and all amendments
or restatements
hereof or thereof)
that the General Partner or the Liquidator
deems necessary or appropriate to form, qualify or continue the
existence or qualification of the Partnership as a limited
partnership (or a
partnership in which
the limited partners
have
limited liability) in the State of Delaware and in all other
jurisdictions in which
the Partnership may
conduct business or own
property; (B) all
certificates,
documents and other instruments
that the General Partner or the Liquidator deems necessary or
appropriate to
reflect, in accordance with its terms, any
amendment, change,
modification or
restatement of this Agreement;
(C) all certificates,
documents and other
instruments
(including
conveyances and a certificate of cancellation) that the General
Partner or the
Liquidator deems
necessary or appropriate to
reflect the
dissolution
and liquidation of the Partnership
pursuant to the
terms of this Agreement; (D) all
certificates,
documents and
other instruments
relating to the
admission, withdrawal,
removal or
substitution of any Partner
pursuant to, or other
events described
in, Article IV, X, XI or
XII; (E) all
certificates,
documents and other instruments
relating to the
determination of the
rights, preferences
and
privileges of any
class or series of Partnership Securities issued
pursuant to Section 5.5; and (F) all certificates, documents and
other instruments
(including
agreements
and a certificate of
merger) relating
to a merger or consolidation of the
Partnership pursuant to Article XIV; and
(ii) execute,
swear to, acknowledge, deliver, file and record all
ballots, consents,
approvals,
waivers, certificates,
documents
and other instruments necessary or appropriate, in the discretion
of the General Partner or the Liquidator, to (A) make, evidence,
give, confirm or ratify any vote, consent, approval, agreement
or other action that
is made or given by the Partners hereunder
or is consistent
with the terms of this
Agreement or is necessary
or appropriate,
in the discretion of
the General Partner or
the
Liquidator or (B)
effectuate
the terms or intent of
this
Agreement; provided,
that when required by Section 13.3 or
any
other provision
of this Agreement that establishes a
percentage of the
Limited Partners or of the Limited Partners
of any class or series
required to take any
action, the General
Partner and the Liquidator may exercise the power of attorney
made
in this Section
2.6(a)(ii) only after
the necessary vote,
consent
or approval of the Limited Partners or of the Limited
Partners of
such class or series, as applicable.
Nothing contained in this Section 2.6(a) shall be construed as
authorizing the General Partner to amend
this Agreement except in accordance
with Article XIII or as may be otherwise
expressly provided for in this
Agreement.
(b) The foregoing power of attorney is
hereby declared to be irrevocable and a
power coupled with an interest, and it
shall survive and, to the maximum extent
permitted by law, not be affected by the
subsequent death, incompetency,
disability, incapacity, dissolution,
bankruptcy or termination of any Limited
Partner or Assignee and the transfer of all
or any portion of such Limited
Partner's or Assignee's Partnership
Interest and shall extend to such Limited
Partner's or Assignee's heirs, successors,
assigns and personal representatives.
Each such Limited Partner or Assignee
hereby agrees to be bound by any
representation made by the General Partner
or the Liquidator acting in good
faith pursuant to such power of attorney;
and each such Limited Partner or
Assignee, to the maximum extent permitted
by law, hereby waives any and all
defenses that may be available to contest,
negate or disaffirm the action of the
General
<PAGE> 20
Partner or the Liquidator taken in good
faith under such power of
attorney. Each Limited Partner or Assignee
shall execute and deliver to the
General Partner or the Liquidator, within
15 days after receipt of the request
therefor, such further designation, powers
of attorney and other instruments as
the General Partner or the Liquidator deems
necessary to effectuate this
Agreement and the purposes of the
Partnership.
2.7 Term.
The term of the Partnership shall continue until the close of
Partnership business on December 31, 2086
or until the earlier dissolution of
the Partnership in accordance with the
provisions of Article XII. The existence
of the Partnership as a separate legal
entity shall continue until the
cancellation of the Certificate of Limited
Partnership as provided in the
Delaware Act.
2.8 Title to
Partnership Assets.
Title to Partnership assets, whether real, personal or mixed
and
whether tangible or intangible, shall be
deemed to be owned by the Partnership
as an entity, and no Partner or Assignee,
individually or collectively, shall
have any ownership interest in such
Partnership assets or any portion thereof.
Title to any or all of the Partnership
assets may be held in the name of the
Partnership, the General Partner, one or
more of its Affiliates or one or more
nominees, as the General Partner may
determine. The General Partner hereby
declares and warrants that any Partnership
assets for which record title is held
in the name of the General Partner or one
or more of its Affiliates or one or
more nominees shall be held by the General
Partner or such Affiliate or nominee
for the use and benefit of the Partnership
in accordance with the provisions of
this Agreement; provided, however, that the
General Partner shall use reasonable
efforts to cause record title to such
assets (other than those assets in respect
of which the General Partner determines
that the expense and difficulty of
conveyancing makes transfer of record title
to the Partnership impracticable) to
be vested in the Partnership as soon as
reasonably practicable; provided,
further, that, prior to the withdrawal or
removal of the General Partner or as
soon thereafter as practicable, the General
Partner shall use reasonable efforts
to effect the transfer of record title to
the Partnership and, prior to any such
transfer, will provide for the use of such
assets in a manner satisfactory to
the General Partner. All Partnership assets
shall be recorded as the property of
the Partnership in its books and records,
irrespective of the name in which
record title to such Partnership assets is
held.
ARTICLE III
RIGHTS OF LIMITED PARTNERS
3.1 Limitation
of Liability.
The Limited Partners and the Assignees shall have no liability
under
this Agreement except as expressly provided
in this Agreement or the Delaware
Act.
3.2 Management
of Business.
No Limited Partner or Assignee, in its capacity as such, shall
participate in the operation, management or
control (within the meaning of the
Delaware Act) of the Partnership's
business, transact any business in the
Partnership's name or have the power to
sign documents for or otherwise bind the
Partnership. Any action taken by any
Affiliate of the General Partner or any
officer, director, employee, member,
general partner, agent or trustee of the
General Partner or any of its Affiliates,
or any officer, director, employee,
member, general partner, agent or trustee
of a Group Member, in its capacity as
such, shall not be deemed to be
participation in the control of the business of
the Partnership by a limited partner of the
Partnership (within the meaning of
Section 17-303(a) of the Delaware Act) and
shall not affect, impair or eliminate
the limitations on the liability of the
Limited Partners or Assignees under this
Agreement.
<PAGE> 21
3.3 Outside
Activities of the Limited Partners.
Subject to the provisions of Section 7.5, which shall continue to
be
applicable to the Persons referred to
therein, regardless of whether such
Persons shall also be Limited Partners or
Assignees, any Limited Partner or
Assignee shall be entitled to and may have
business interests and engage in
business activities in addition to those
relating to the Partnership, including
business interests and activities in direct
competition with the Partnership
Group. Neither the Partnership nor any of
the other Partners or Assignees shall
have any rights by virtue of this Agreement
in any business ventures of any
Limited Partner or Assignee.
3.4 Rights of
Limited Partners.
(a) In
addition to other rights provided by this Agreement or by
applicable
law, and except as limited by Section 3.4(b), each Limited
Partner
shall have the right, for a purpose reasonably related to such
Limited
Partner's interest as a limited partner in the Partnership,
upon
reasonable written demand and at such Limited Partner's own
expense:
(i) to obtain true and full information regarding the status of
the business and financial condition of the Partnership;
(ii) promptly after becoming available, to obtain a copy of the
Partnership's federal, state and local tax returns for each
year;
(iii) to have furnished to him a current list of the name and
last
known business, residence or mailing address of each Partner;
(iv) to have furnished to him a copy of this Agreement and the
Certificate of Limited Partnership and all amendments thereto,
together
with a copy of the executed copies of all powers of attorney
pursuant
to which this Agreement, the Certificate of Limited Partnership and
all
amendments thereto have been executed;
(v) to obtain true and full information regarding the amount of
cash
and a description and statement of the Net Agreed Value of any
other
Capital
Contribution by each Partner and which each Partner has agreed
to contribute in the future, and the date on which each became
a
Partner; and
(vi) to obtain such other information regarding the affairs of
the
Partnership as is just and reasonable.
(b) The
General Partner may keep confidential from the Limited Partners
and
Assignees, for such period of time as the General Partner deems
reasonable, (i) any information that the General Partner
reasonably
believes to be in the nature of trade secrets or (ii) other
information
the disclosure of which the General Partner in good faith believes
(A)
is not in the best interests of the Partnership Group, (B) could
damage
the Partnership Group or (C) that any Group Member is required by
law
or by agreement with any third party to keep confidential (other
than
agreements with Affiliates of the Partnership the primary purpose
of
which is to circumvent the obligations set forth in this Section
3.4).
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF
PARTNERSHIP INTERESTS; REDEMPTION OF
PARTNERSHIP INTERESTS
4.1
Certificates.
Upon the Partnership's issuance of Common Units to any Person,
the
Partnership shall issue one or more
Certificates in the name of such Person
evidencing the number of such Common Units
being so issued. In addition, the
General Partner may cause the Partnership
to issue Certificates evidencing
ownership of one or more other classes or
series of Partnership Securities.
Certificates shall be executed on behalf of
the Partnership by the Chairman of
the Board,
<PAGE> 22
President or any Vice President and the
Secretary or any Assistant
Secretary of the General Partner. No Common
Unit Certificate shall be valid for
any purpose until it has been countersigned
by the Transfer Agent; provided,
however, that if the General Partner elects
to issue Common Units in global
form, the Common Unit Certificates shall be
valid upon receipt of a certificate
from the Transfer Agent certifying that the
Common Units have been duly
registered in accordance with the
directions of the Partnership.
4.2 Mutilated,
Destroyed, Lost or Stolen Certificates.
(a) If any
mutilated Certificate is surrendered to the Transfer Agent, the
appropriate officers of the General Partner on behalf of the
Partnership shall execute and deliver and, in the case of a Common
Unit
Certificate, the Transfer Agent shall countersign, in exchange
therefor, a new Certificate evidencing the same number and type
of
Partnership Securities as the Certificate so surrendered.
(b) The
appropriate officers of the General Partner on behalf of the
Partnership shall execute and deliver and, in the case of a Common
Unit
Certificate, the Transfer Agent shall countersign (or, in the case
of
Common Units issued in global form, register in accordance with
the
rules and regulations of the Depositary), a new Certificate in
place of
any Certificate previously issued if the Record Holder of the
Certificate:
(i) makes proof by affidavit, in form and substance satisfactory to
the
Partnership, that a previously issued Certificate has been
lost,
destroyed or stolen;
(ii) requests the issuance of a new Certificate before the
Partnership
has notice that the Certificate has been acquired by a purchaser
for
value in good faith and without notice of an adverse claim;
(iii) if requested by the Partnership, delivers to the Partnership
a
bond, in form and substance satisfactory to the Partnership,
with
surety or sureties and with fixed or open penalty as the
Partnership
may reasonably direct, in its sole discretion, to indemnify the
Partnership, the General Partner and the Transfer Agent against
any
claim that may be made on account of the alleged loss, destruction
or
theft of the Certificate; and
(iv) satisfies any other reasonable requirements imposed by the
Partnership.
If a Limited Partner or Assignee fails to notify the Partnership
within
a reasonable time after he has notice of
the loss, destruction or theft of a
Certificate, and a transfer of the Limited
Partner Interests represented by the
Certificate is registered before the
Partnership, the General Partner or the
Transfer Agent receives such notification,
the Limited Partner or Assignee shall
be precluded from making any claim against
the Partnership, the General Partner
or the Transfer Agent for such transfer or
for a new Certificate.
(c) As a condition to the issuance of any
new Certificate under this Section
4.2, the Partnership may require the
payment of a sum sufficient to cover any
tax or other governmental charge that may
be imposed in relation thereto and any
other expenses (including the fees and
expenses of the Transfer Agent)
reasonably connected therewith.
4.3 Record
Holders.
The Partnership shall be entitled to recognize the Record Holder as
the
Partner or Assignee with respect to any
Partnership Interest and, accordingly,
shall not be bound to recognize any
equitable or other claim to or interest in
such Partnership Interest on the part of
any other Person, regardless of whether
the Partnership shall have actual or other
notice thereof, except as otherwise
provided by law or any applicable rule,
regulation, guideline or requirement of
any National Securities Exchange on which
Limited Partner Interests are listed
for trading. Without limiting the
foregoing, when a Person (such as a broker,
dealer, bank, trust company or clearing
corporation or an agent of any of the
foregoing) is acting as nominee, agent or
in some other representative capacity
for another Person in acquiring and/or
holding Limited Partner Interests, as
between the Partnership on the one hand,
and such other Persons on the other,
such representative Person (a) shall be the
Partner or Assignee (as the case may
be) of record and beneficially, (b)
must
<PAGE> 23
execute and deliver a Transfer
Application and (c) shall be bound by this
Agreement and shall have the rights
and obligations of a Partner or Assignee
(as the case may be) hereunder and as,
and to the extent, provided for herein.
4.4 Transfer
Generally.
(a) The term "transfer," when used in this
Agreement with respect to a
Partnership Interest, shall be deemed to
refer to a transaction (i) by which the
General Partner assigns its General Partner
Interest to another Person
or by which the holder of
Incentive Distribution Rights assigns its Incentive
Distribution Rights to another Person, or
(ii) by which the holder of a Limited
Partner Interest (other than an Incentive
Distribution Right) assigns such
Limited Partner Interest to another Person
who is or becomes a Limited Partner
or an Assignee, and includes a sale,
assignment, gift, pledge, encumbrance,
hypothecation, mortgage, exchange or any
other disposition by law or otherwise.
(b) No Partnership Interest shall be
transferred, in whole or in part, except in
accordance with the terms and conditions
set forth in this Article IV. Any
transfer or purported transfer of a
Partnership Interest not made in accordance
with this Article IV shall be null and
void.
(c) Nothing contained in this Agreement
shall be construed to prevent a
disposition by any stockholder, member or
other owner of the General Partner of
any or all of the shares of stock,
membership interests or other ownership
interests in the General Partner.
4.5
Registration and Transfer of Limited Partner Interests.
(a) The Partnership shall keep or cause to
be kept on behalf of the Partnership
a register in which, subject to such
reasonable regulations as it may prescribe
and subject to the provisions of Section
4.5(b), the Partnership will provide
for the registration and transfer of
Limited Partner Interests. The Transfer
Agent is hereby appointed registrar and
transfer agent for the purpose of
registering Common Units and transfers of
such Common Units as herein provided.
The Partnership shall not recognize
transfers of Certificates evidencing Limited
Partner Interests unless such transfers are
affected in the manner described in
this Section 4.5. Upon surrender of a
Certificate for registration of transfer
of any Limited Partner Interest, and
subject to the provisions of Section
4.5(b), the appropriate officers of the
General Partner on behalf of the
Partnership shall execute and deliver and,
in the case of Common Units, the
Transfer Agent shall countersign (or, in
the case of Common Units issued in
global form, register in accordance with
the rules and regulations of the
Depositary), in the name of the holder or
the designated transferee or
transferees, as required pursuant to the
holder's instructions, one or more new
Certificates evidencing the same aggregate
number and type of Limited Partner
Interests as was evidenced by the
Certificate so surrendered.
(b) Except as otherwise provided in Section
4.8, the Partnership shall not
recognize any transfer of Limited Partner
Interests until the Certificates
evidencing such Limited Partner Interests
are surrendered for registration of
transfer and are accompanied by a Transfer
Application duly executed by the
transferee (or the transferee's
attorney-in-fact duly authorized in writing). No
charge shall be imposed by the Partnership
for such transfer; provided, that as
a condition to the issuance of any new
Certificate under this Section 4.5, the
Partnership may require the payment of a
sum sufficient to cover any tax or
other governmental charge that may be
imposed with respect thereto.
(c) Limited Partner Interests may be
transferred only in the manner described in
this Section 4.5. The transfer of any
Limited Partner Interests and the
admission of any new Limited Partner shall
not constitute an amendment to this
Agreement.
(d) Until admitted as a Substituted Limited
Partner pursuant to Section 10.2,
the Record Holder of a Limited Partner
Interest shall be an Assignee in respect
of such Limited Partner Interest. Limited
Partners may include custodians,
nominees or any other individual or entity
in its own or any representative
capacity.
(e) A transferee of a Limited Partner
Interest who has completed and delivered a
Transfer Application shall be deemed to
have (i) requested admission as a
Substituted Limited Partner, (ii) agreed to
comply with and be bound by and to
have executed this Agreement, (iii)
represented and warranted that such
transferee has the right, power and
authority
<PAGE> 24
and, if an individual, the capacity to
enter into this Agreement, (iv) granted
the powers of attorney set forth in this
Agreement and (v) given the consents
and approvals and made the waivers
contained in this Agreement.
4.6 Transfer
of a General Partner's General Partner Interest.
Prior to December 31, 2006, the General Partner shall not transfer
all
or any part of its General Partner Interest
to a Person unless such transfer (a)
has been approved by the prior written
consent or vote of the holders of a
Majority Interest or (b) is of all, but not
less than all, of its General
Partner Interest to (i) an Affiliate of the
General Partner or (ii) another
Person in connection with the merger or
consolidation of the General Partner
with or into another Person or the transfer
by the General Partner of all or
substantially all of its assets to another
Person. Notwithstanding anything
herein to the contrary, no transfer by the
General Partner of all or any part of
its General Partner Interest to another
Person shall be permitted unless (x) the
transferee agrees to assume the rights and
duties of the General Partner under
this Agreement and the Fourth Amended OLP
Agreement and to be bound by the
provisions of this Agreement and the Fourth
Amended OLP Agreement, (y) the
Partnership receives an Opinion of Counsel
that such transfer would not result
in the loss of limited liability of any
Limited Partner of any limited partner
of Genesis OLP or cause the Partnership or
Genesis OLP to be treated as an
association taxable as a corporation or
otherwise to be taxed as an entity for
federal income tax purposes (to the extent
not already so treated or taxed) and
(z) such transferee also agrees to purchase
all (or the appropriate portion
thereof, if applicable) of the partnership
interest of the General Partner as
the general partner of each other Group
Member. In the case of a transfer
pursuant to and in compliance with this
Section 4.6, the transferee or successor
(as the case may be) shall, subject to
compliance with the terms of Section
10.3, be admitted to the Partnership as a
General Partner immediately prior to
the transfer of the General Partner
Interest, and the business of the
Partnership shall continue without
dissolution.
4.7
Restrictions on Transfers.
(a) Notwithstanding the other provisions of
this Article IV, no transfer of any
Partnership Interest shall be made if such
transfer would (i) violate the then
applicable federal or state securities laws
or rules and regulations of the
Commission, any state securities commission
or any other governmental authority
with jurisdiction over such transfer, (ii)
terminate the existence or
qualification of the Partnership or Genesis
OLP under the laws of the
jurisdiction of its formation or (iii)
cause the Partnership or Genesis OLP to
be treated as an association taxable as a
corporation or otherwise to be taxed
as an entity for federal income tax
purposes (to the extent not already so
treated or taxed).
(b) The General Partner may impose
restrictions on the transfer of Partnership
Interests if a subsequent Opinion of
Counsel determines that such restrictions
are necessary to avoid a significant risk
of the Partnership or Genesis OLP
becoming taxable as a corporation or
otherwise to be taxed as an entity for
federal income tax purposes. The
restrictions may be imposed by making such
amendments to this Agreement as the General
Partner may determine to be
necessary or appropriate to impose such
restrictions; provided, however, that
any amendment that the General Partner
believes, in the exercise of its
reasonable discretion, could result in the
delisting or suspension of trading of
any class of Limited Partner Interests on
the principal National Securities
Exchange on which such class of Limited
Partner Interests is then traded must be
approved, prior to such amendment being
effected, by the holders of at least a
majority of the Outstanding Limited Partner
Interests of such class.
(c) Nothing contained in this Article IV,
or elsewhere in this Agreement, shall
preclude the settlement of any transactions
involving Partnership Interests
entered into through the facilities of any
National Securities Exchange on which
such Partnership Interests are listed for
trading.
4.8
Citizenship Certificates; Non-citizen Assignees.
(a) If any Group Member is or becomes
subject to any federal, state or local law
or regulation that, in the reasonable
determination of the General Partner,
creates a substantial risk of cancellation
or forfeiture of any property in
which the Group Member has an interest
based on the nationality, citizenship or
other related status of a Limited Partner
or Assignee, the General Partner may
request any Limited Partner or Assignee to
furnish to the General Partner,
within 30 days after receipt of such
request, an executed Citizenship
Certification or such other information
concerning his
<PAGE> 25
nationality, citizenship or other related
status (or, if the Limited Partner or
Assignee is a nominee holding for the
account of another Person, the
nationality, citizenship or other related
status of such Person) as the General
Partner may request. If a Limited Partner
or Assignee fails to furnish to the
General Partner within the aforementioned
30-day period such Citizenship
Certification or other requested
information or if upon receipt of such
Citizenship Certification or other
requested information the General Partner
determines, with the advice of counsel,
that a Limited Partner or Assignee is
not an Eligible Citizen, the Limited
Partner Interests owned by such Limited
Partner or Assignee shall be subject to
redemption in accordance with the
provisions of Section 4.9. In addition, the
General Partner may require that the
status of any such Limited Partner or
Assignee be changed to that of a
Non-citizen Assignee and, thereupon, the
General Partner shall be substituted
for such Non-citizen Assignee as the
Limited Partner in respect of his Limited
Partner Interests.
(b) The General Partner shall, in
exercising voting rights in respect of Limited
Partner Interests held by it on behalf of
Non-citizen Assignees, distribute the
votes in the same ratios as the votes of
Limited Partners (including without
limitation the General Partner) in respect
of Limited Partner Interests other
than those of Non-citizen Assignees are
cast, either for, against or abstaining
as to the matter.
(c) Upon dissolution of the Partnership, a
Non-citizen Assignee shall have no
right to receive a distribution in kind
pursuant to Section 12.4 but shall be
entitled to the cash equivalent thereof,
and the Partnership shall provide cash
in exchange for an assignment of the
Non-citizen Assignee's share of the
distribution in kind. Such payment and
assignment shall be treated for
Partnership purposes as a purchase by the
Partnership from the Non-citizen
Assignee of his Limited Partner Interest
(representing his right to receive his
share of such distribution in kind).
(d) At any time after he can and does
certify that he has become an Eligible
Citizen, a Non-citizen Assignee may, upon
application to the General Partner,
request admission as a Substituted Limited
Partner with respect to any Limited
Partner Interests of such Non-citizen
Assignee not redeemed pursuant to Section
4.9, and upon his admission pursuant to
Section 10.2, the General Partner shall
cease to be deemed to be the Limited
Partner in respect of the Non-citizen
Assignee's Limited Partner Interests.
4.9 Redemption
of Partnership Interests of Non-citizen Assignees.
(a) If at any
time a Limited Partner or Assignee fails to furnish a
Citizenship Certification or other information requested within
the
30-day period specified in Section 4.8(a), or if upon receipt of
such
Citizenship Certification or other information the General
Partner
determines, with the advice of counsel, that a Limited Partner
or
Assignee is not an Eligible Citizen, the Partnership may, unless
the
Limited Partner or Assignee establishes to the satisfaction of
the
General Partner that such Limited Partner or Assignee is an
Eligible
Citizen or has transferred his Limited Partner Interests to a
Person
who is an Eligible Citizen and who furnishes a Citizenship
Certification to the General Partner prior to the date fixed
for
redemption as provided below, redeem the Limited Partner Interest
of
such Limited Partner or Assignee as follows:
(i) The General Partner shall, not later than the 30th day before
the
date fixed for redemption, give notice of redemption
to the Limited
Partner or Assignee,
at his last address
designated on the records
of the Partnership or the Transfer Agent, by registered or
certified
mail, postage prepaid.
The notice shall be
deemed to have been given
when so mailed. The
notice shall specify
the Redeemable
Interests,
the date fixed for
redemption, the place
of payment,
that payment
of the redemption
price will be made
upon surrender of the
Certificate evidencing
the Redeemable Interests and that on and
after the date fixed for redemption no further allocations or
distributions to which
the Limited Partner or
Assignee would
otherwise be entitled in respect of the Redeemable Interests
will
accrue or be made.
(ii) The aggregate
redemption price for
Redeemable Interests
shall
be an amount equal to the Current Market Price (the date of
determination of which
shall be the date
fixed for redemption)
of
Limited Partner
Interests of the class to be so redeemed multiplied
by the number of Limited Partner Interests of each such
class
included among
the Redeemable Interests. The redemption price
shall be paid,
in the discretion of
the General Partner,
in cash or
by delivery of a promissory note of the Partnership in the
principal
amount of
<PAGE> 26
the redemption
price, bearing interest at the rate of 10%
annually
and payable in three equal annual installments of principal
together
with accrued interest,
commencing one year
after the redemption date.
(iii) Upon surrender by or on behalf of the Limited Partner or
Assignee,
at the place specified in the notice of redemption, of the
Certificate
evidencing the Redeemable Interests, duly endorsed in blank or
accompanied by an assignment duly executed in blank, the
Limited
Partner or Assignee or his duly authorized representative shall
be
entitled to receive the payment therefor.
(iv) After the redemption date, Redeemable Interests shall no
longer
constitute issued and Outstanding Limited Partner Interests.
(b) The
provisions of this Section 4.9 shall also be applicable to
Limited
Partner Interests held by a Limited Partner or Assignee as nominee
of a
Person determined to be other than an Eligible Citizen.
(c) Nothing in
this Section 4.9 shall prevent the recipient of a notice of
redemption from transferring his Limited Partner Interests before
the
redemption date if such transfer is otherwise permitted under
this
Agreement. Upon receipt of notice of such a transfer, the
General
Partner shall withdraw the notice of redemption, provided the
transferee of such Limited Partner Interests certifies to the
satisfaction of the General Partner in a Citizenship
Certification
delivered in connection with the Transfer Application that he is
an
Eligible Citizen. If the transferee fails to make such
certification,
such redemption shall be effected from the transferee on the
original
redemption date.
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF
PARTNERSHIP INTERESTS
5.1 Previous
Capital Contributions.
The Partners (or their predecessors) have heretofore made
Capital
Contributions to the Partnership as
provided in the First Amended Agreement.
5.2 Additional
Contributions by General Partner.
Upon the issuance of any additional Limited Partner Interests,
the
General Partner shall be required to make
an additional Capital Contribution
equal to 2/98ths of any amount contributed
to the Partnership by the Limited
Partners in exchange for such additional
Limited Partner Interests. Except as
set forth in the immediately preceding
sentence and Article XII, the General
Partner shall not be obligated to make any
Capital Contributions to the
Partnership.
5.3 Interest
and Withdrawal.
No interest shall be paid by the Partnership on Capital
Contributions.
No Partner or Assignee shall be entitled to
the withdrawal or return of its
Capital Contribution, except to the extent,
if any, that distributions made
pursuant to this Agreement or upon
termination of the Partnership may be
considered as such by law and then only to
the extent provided for in this
Agreement. Except to the extent expressly
provided in this Agreement, no Partner
or Assignee shall have priority over any
other Partner or Assignee either as to
the return of Capital Contributions or as
to profits, losses or distributions.
Any such return shall be a compromise to
which all Partners and Assignees agree
within the meaning of Section 17-502(b) of
the Delaware Act.
5.4 Capital
Accounts.
(a) The
Partnership shall maintain for each Partner (or a beneficial
owner
of Partnership Interests held by a nominee in any case in which
the
nominee has furnished the identity of such owner to the Partnership
in
accordance with Section 6031(c) of the Code or any other method
acceptable to the General Partner in its sole discretion) owning
a
Partnership Interest a separate Capital Account with respect to
such
Partnership Interest in accordance with the rules of
<PAGE> 27
Treasury Regulation Section 1.704-1(b)(2)(iv). Such Capital
Account
shall be increased by (i) the amount of all Capital Contributions
made
to the Partnership with respect to such Partnership Interest
pursuant
to this Agreement (including the Third Amended Agreement) and (ii)
all
items of Partnership income and gain (including, without
limitation,
income and gain exempt from tax) computed in accordance with
Section
5.4(b) and allocated with respect to such Partnership Interest
pursuant to Section 6.1, and decreased by (x) the amount of cash
or
Net Agreed Value of all actual and deemed distributions of cash
or
property made with respect to such Partnership Interest and (y)
all
items of Partnership deduction and loss computed in accordance
with
Section 5.4(b) and allocated with respect to such Partnership
Interest
pursuant to Section 6.1.
(b) For
purposes of computing the amount of any item of income, gain,
loss
or deduction which is to be allocated pursuant to Article VI and is
to
be reflected in the Partners' Capital Accounts, the
determination,
recognition and classification of any such item shall be the same
as
its determination, recognition and classification for federal
income
tax purposes (including, without limitation, any method of
depreciation, cost recovery or amortization used for that
purpose),
provided, that:
(i) Solely for purposes of this Section 5.4, the Partnership shall
be
treated as owning directly its proportionate share (as determined
by
the General Partner based upon the provisions of the Fourth Amended
OLP
Agreement) of all property owned by Genesis OLP or any other
Subsidiary
that is classified as a partnership for federal income tax
purposes.
(ii) All underwriting
discounts and
commissions
incurred by the
Partnership in connection with the issuance of Partnership Securities
that can neither be
deducted nor
amortized under Section 709 of
the Code shall, for
purposes of Capital Account maintenance, be
treated as an item of deduction at the time such costs are incurred
and shall be
allocated 100% to the holders of such Partnership
Securities in
accordance with their relative Percentage Interests.
All other fees and other expenses incurred by the Partnership to
promote the sale of (or to sell) Partnership Securities that can
neither be deducted nor amortized under Section 709 of the Code,
if
any, shall, for
purposes of Capital Account maintenance, be
treated as an item of
deduction at the time such fees and other
expenses are
incurred and shall be allocated among the
Partners
pursuant
to Section 6.1.
(iii) Except as otherwise provided in Treasury Regulation Section
1.704- 1(b)(2)(iv)(m),
the computation of all
items of income,
gain,
loss and deduction shall be made without regard to any election
under
Section 754 of the
Code which
may be made by the
Partnership
and,
as to those items
described in Section 705(a)(1)(B) or
705(a)(2)(B)
of the Code, without
regard to the fact that such items are not
includable in
gross income or are neither currently deductible nor
capitalized for federal income tax purposes. To the extent an
adjustment to the adjusted tax basis of any Partnership asset
pursuant to Section 734(b) or 743(b) of the Code is required,
pursuant
to Treasury Regulation
Section
1.704-1(b)(2)(iv)(m) to be taken into
account in determining Capital Accounts, the amount of such
adjustment
in the Capital Accounts shall be treated as an item of gain or
loss.
(iv) Any income, gain or loss attributable to the taxable
disposition
of any Partnership property shall be determined as if the
adjusted
basis of such property as of such date of disposition were equal
in
amount to the Partnership's Carrying Value with respect to such
property as of such date.
(v) In accordance with the requirements of Section 704(b) of the
Code,
any deductions for depreciation, cost recovery or amortization
attributable to any Contributed Property shall be determined as if
the
adjusted basis of such
property on the date it was acquired by the
Partnership were equal
to the Agreed Value of such property. Upon an
adjustment pursuant to Section 5.4(d) to the Carrying Value of
any
Partnership property subject to depreciation, cost recovery or
amortization, any
further deductions for such depreciation,
cost
recovery or amortization attributable to such property
shall be
determined (A) as if the adjusted basis of such property were equal
to the Carrying Value of such property immediately following such
adjustment and (B) using a rate of depreciation, cost recovery or
amortization derived
from the same method and useful life (or, if
applicable, the
remaining useful life) as is applied for
federal
income tax purposes;
provided, however,
that, if the asset has a zero
adjusted basis for federal income tax purposes, depreciation,
<PAGE> 28
cost recovery or amortization deductions shall be determined using
any
reasonable method that the General Partner may adopt.
(vi) If the
Partnership's adjusted basis in a depreciable or cost
recovery property is reduced for federal income tax purposes
pursuant
to Section 48(q)(1) or 48(q)(3) of the Code, the amount of such
reduction shall, solely for purposes hereof, be deemed to be an
additional depreciation or cost recovery deduction in the year
such
property is placed in service and shall be allocated among the
Partners
pursuant to Section 6.1. Any restoration of such basis pursuant
to
Section 48(q)(2) of the Code shall, to the extent possible, be
allocated in the same manner to the Partners to whom such
deemed
deduction was allocated.
(c) A
transferee of a Partnership Interest shall succeed to a pro
rata
portion of the Capital Account of the transferor relating to
the
Partnership Interest so transferred.
(d) (i) In
accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f), on an issuance of additional Partnership
Interests for cash or Contributed Property or the conversion of
the
General Partner's Combined Interest to Common Units pursuant to
Section
11.3(b), the Capital Account of all Partners and the Carrying Value
of
each Partnership property immediately prior to such issuance shall
be
adjusted upward or downward to reflect any Unrealized Gain or
Unrealized Loss attributable to such Partnership property, as if
such
Unrealized Gain or Unrealized Loss had been recognized on an
actual
sale of each such property immediately prior to such issuance and
had
been allocated to the Partners at such time pursuant to Section 6.1
in
the same manner as any item of gain or loss actually recognized
during
such period would have been allocated. In determining such
Unrealized
Gain or Unrealized Loss, the aggregate cash amount and fair
market
value of all Partnership assets (including cash or cash
equivalents)
immediately prior to the issuance of additional Partnership
Securities
shall be determined by the General Partner using such reasonable
method
of valuation as it may adopt; provided, however, that the
General
Partner, in
arriving at such valuation, must take fully into account
the fair market value of the Partnership Interests of all Partners
at
such time. The General Partner shall allocate such aggregate
value
among the assets of the Partnership (in such manner as it
determines in
its discretion to be reasonable) to arrive at a fair market value
for
individual properties.
(ii) In accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)
(f), immediately prior to any actual or deemed distribution to
a
Partner of any
Partnership property
(other than a distribution of
cash that is not in redemption or retirement of a Partnership
Interest), the Capital
Accounts of all Partners and the Carrying Value
of all Partnership
property shall
be adjusted upward or downward
to reflect any
Unrealized Gain or Unrealized Loss attributable to such
Partnership property, as if such Unrealized Gain or Unrealized Loss
had
been recognized in a sale of such property immediately prior to such
distribution for an amount equal to its fair market value, and had
been
allocated to the Partners, at such time, pursuant to Section 6.1 in
the
same manner as any item of gain or loss actually recognized during
such
period would have been
allocated. In
determining such
Unrealized
Gain or Unrealized Loss the aggregate cash amount and fair market
value
of all
Partnership assets (including, without limitation, cash or cash
equivalents) immediately prior to a distribution shall (A) in the
case
of an actual
distribution that is not made pursuant to Section 12.4 or
in the case of a deemed contribution and/or distribution occurring
as a result of a termination of the Partnership pursuant to Section
708
of the Code, be determined and allocated in the same manner
as that
provided in Section
5.4(d)(i) or (B) in
the case of a
liquidating
distribution pursuant
to Section 12.4, be determined and
allocated by the
Liquidator using such reasonable method of valuation
as it may adopt.
5.5 Issuances
of Additional Partnership Securities.
(a) The Partnership may issue additional
Partnership Securities and options,
rights, warrants and appreciation rights
relating to Partnership Securities for
any Partnership purpose at any time and
from time to time to such Persons for
such consideration and on such terms and
conditions as shall be established by
the General Partner in its sole discretion,
all without the approval of any
Limited Partners.
(b) Each additional Partnership Security
authorized to be issued by the
Partnership pursuant to Section 5.5(a) may
be issued in one or more classes, or
one or more series of any such classes,
with such designations, preferences,
rights, powers and duties (which may be
senior to existing classes and series of
Partnership Securities), as shall be
fixed
<PAGE> 29
by the General Partner in the exercise of
its sole discretion, including (i) the
right to share Partnership profits and
losses or items thereof; (ii) the right
to share in Partnership distributions;
(iii) the rights upon dissolution and
liquidation of the Partnership; (iv)
whether, and the terms and conditions upon
which, the Partnership may redeem such
Partnership Security; (v) whether such
Partnership Security is issued with the
privilege of conversion or exchange and,
if so, the terms and conditions of such
conversion or exchange; (vi) the terms
and conditions upon which such Partnership
Security will be issued, evidenced by
certificates and assigned or transferred;
(vii) the method for determining the
Percentage Interest as to such Partnership
Security and (viii) the
