FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GENESIS CRUDE OIL, L.P.
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
1.1
Definitions...........................................................................................2
1.2
Construction.........................................................................................10
ARTICLE II ORGANIZATION
2.1
Continuation of
Existence............................................................................10
2.2
Name.................................................................................................10
2.3 Registered
Office; Registered Agent; Principal Office; Other
Offices.................................11
2.4 Purpose
and
Business.................................................................................11
2.5
Powers...............................................................................................11
2.6 Power of
Attorney....................................................................................11
2.7
Term.................................................................................................12
2.8 Title to
Partnership
Assets..........................................................................12
ARTICLE III RIGHTS OF LIMITED PARTNERS
3.1 Limitation
of
Liability..............................................................................13
3.2 Management
of
Business...............................................................................13
3.3 Outside
Activities of Limited
Partners...............................................................13
3.4 Rights of
Limited
Partners...........................................................................13
ARTICLE IV TRANSFER OF PARTNERSHIP
INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS
4.1 Transfer
Generally...................................................................................14
4.2 Transfer
of General Partner's Partnership
Interest...................................................14
4.3 Transfer
of a Limited Partner
Interest...............................................................14
4.4
Restrictions on
Transfers............................................................................15
4.5
Elimination and Cancellation of Subordinated LP Units and
APIs.......................................15
4.6 Conversion
of General Partner
Interests..............................................................15
ARTICLE V CAPITAL CONTRIBUTIONS AND
ISSUANCE OF PARTNERSHIP INTERESTS
5.1 Previous
Capital
Contributions.......................................................................15
5.2 Additional
Contributions by General
Partner..........................................................15
5.3 Interest
and
Withdrawal..............................................................................15
5.4 Capital
Accounts.....................................................................................16
5.5 Issuances
of Additional Partnership
Securities.......................................................17
5.6 Limited
Preemptive
Right.............................................................................18
5.7 Fully Paid
and Non-Assessable Nature of Limited Partner
Interests....................................18
ARTICLE VI ALLOCATIONS AND
DISTRIBUTIONS
6.1
Allocations for Capital Account
Purposes.............................................................18
6.2
Allocations for Tax
Purposes.........................................................................21
6.3
Requirement and Characterization of Distributions; Distributions to
Record Holders...................23
6.4
Distributions of Available Cash from Operating
Surplus...............................................23
6.5
Distributions of Available Cash from Capital
Surplus.................................................23
ARTICLE VII MANAGEMENT AND OPERATION OF
BUSINESS
7.1
Management...........................................................................................24
7.2
Certificate of Limited
Partnership...................................................................25
7.3
Restrictions on the General Partner's
Authority......................................................25
7.4
Reimbursement of the General
Partner.................................................................26
7.5 Outside
Activities...................................................................................26
7.6 Loans from
the General Partner; Loans or Contributions from the Partnership;
Contracts with
Affiliates; Certain Restrictions on the General
Partner..............................................27
7.7
Indemnification......................................................................................28
7.8 Liability
of
Indemnitees.............................................................................29
7.9 Resolution
of Conflicts of
Interest..................................................................30
7.10 Other Matters
Concerning the General
Partner.........................................................31
7.11 Reliance by
Third
Parties............................................................................31
ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND
REPORTS
8.1 Records
and
Accounting...............................................................................32
8.2 Fiscal
Year..........................................................................................32
ARTICLE IX TAX MATTERS
9.1 Tax
Returns and
Information..........................................................................32
9.2 Tax
Elections........................................................................................32
9.3 Tax
Controversies....................................................................................32
9.4
Withholding..........................................................................................32
ARTICLE X ADMISSION OF PARTNERS
10.1 Status of
General
Partner............................................................................33
10.2 Admission of
Successor General
Partner...............................................................33
10.3 Admission of
Substituted Limited
Partner.............................................................33
10.4 Admission of
Additional Limited
Partners.............................................................33
10.5 Amendment of
Agreement and Certificate of Limited
Partnership........................................34
ARTICLE XI WITHDRAWAL OR REMOVAL OF
PARTNERS
11.1 Withdrawal of
the General
Partner....................................................................34
11.2 Removal of the
General
Partner.......................................................................35
11.3 Interest of
Departing
Partner........................................................................35
11.4 Withdrawal of
Limited
Partners.......................................................................35
ARTICLE XII DISSOLUTION AND LIQUIDATION
12.1
Dissolution..........................................................................................36
12.2 Continuation of
the Business of the Partnership After
Dissolution....................................36
12.3
Liquidator...........................................................................................37
12.4
Liquidation..........................................................................................37
12.5 Cancellation of
Certificate of Limited
Partnership...................................................38
12.6 Return of
Contributions..............................................................................38
12.7 Waiver of
Partition..................................................................................38
12.8 Capital Account
Restoration..........................................................................38
ARTICLE XIII AMENDMENT OF PARTNERSHIP
AGREEMENT; MEETINGS
13.1 Amendment to be
Adopted Solely by General
Partner....................................................38
13.2 Amendment
Procedures.................................................................................39
ARTICLE XIV MERGER
14.1
Authority............................................................................................39
14.2 Procedure for
Merger or
Consolidation................................................................40
14.3 Approval by
Limited Partners of Merger or
Consolidation..............................................40
14.4 Certificate of
Merger................................................................................41
14.5 Effect of
Merger.....................................................................................41
ARTICLE XV GENERAL PROVISIONS
15.1 Addresses and
Notices................................................................................41
15.2 Further
Action.......................................................................................42
15.3 Binding
Effect.......................................................................................42
15.4
Integration..........................................................................................42
15.5
Creditors............................................................................................42
15.6
Waiver...............................................................................................42
15.7
Counterparts.........................................................................................42
15.8 Applicable
Law.......................................................................................42
15.9 Invalidity of
Provisions.............................................................................42
15.10 Consent of
Partners..................................................................................42
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FOURTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
GENESIS CRUDE OIL, L.P.
THIS FOURTH
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of
Genesis Crude Oil, L.P., dated as of June
9, 2005, is entered into by and among
Genesis Energy, Inc., a Delaware
corporation, as the General Partner, Genesis
Energy, L.P. ("Genesis MLP"), a Delaware
limited partnership, as the Limited
Partner, together with any other Persons
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:
RECITALS
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
of Genesis Crude Oil, L.P. dated as of
December 3, 1996 (the "First Amended
Agreement"); and
WHEREAS, on
December 7, 2000, the partners of the Partnership and of
Genesis MLP approved by requisite vote a
restructuring (the "Restructuring") of
the Partnership and Genesis MLP pursuant to
which (a) all outstanding
Subordinated LP Units and APIs were
abandoned by their respective holders and
cancelled by the Partnership, (b) the First
Amended Agreement and the First
Amended MLP Agreement were amended to,
among other things, reduce the amounts of
Minimum Quarterly Distribution, the First
Target Distribution, the Second Target
Distribution and the Third Target
Distribution (each as defined in the First
Amended Agreement) and provide that the
Common Units would not accrue arrearages
if the Minimum Quarterly Distribution (as
defined in the First Amended
Agreement) is not paid in full in any
Quarter, (c) Salomon contributed to the
Partnership the remaining $3,802,000 of its
distribution support obligation
under the Distribution Support Agreement
(the "Remaining Distribution Support"),
(d) the Partnership made a special
distribution of the Remaining Distribution
Support less the costs incurred in
connection with the Restructuring to Genesis
MLP and Genesis MLP made a special
distribution of such amount to the holders of
MLP Common Units, (e) the Distribution
Support Agreement was terminated, (f)
Genesis MLP withdrew as a general partner
of the Partnership and Genesis MLP's
80.01% general partner interest in the
Partnership represented by 8,801,020
Subordinated GP Units was converted to a
99.99% limited partner interest, (g)
the General partner's 0.40% general partner
interest in the Partnership
represented by 43,980 Subordinated GP Units
was 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
current 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 Crude Oil, 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
31, 2002, Genesis Energy, Inc., as the sole general
partner, and Genesis MLP, as the sole
limited partner amended and restated the
Second Amended Agreement (the "Third
Amended Agreement") to reflect the change
in the General Partner's name and form as a
Delaware corporation on May 14,
2002, and certain other conforming changes
that, in the discretion of the
General Partner, did not adversely affect
the Limited Partners in any material
respect; and
WHEREAS, the
General Partner and Genesis MLP hereby amend and restate 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 Genesis MLP in
lieu of any incentive distribution rights
in the Partnership resulting from the
conversion of the Incentive Compensation
Payments pursuant to Section 7.13 of
the Third Amended Agreement and (b) certain
other conforming changes related to
the
<PAGE> 2
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
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.
"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.
"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, without limitation,
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.
<PAGE> 3
"Agreement"
means this Fourth Amended and Restated Agreement of Limited
Partnership of Genesis Crude Oil, L.P., as
it may be amended, supplemented or
restated from time to time.
"APIs" mean the
non-voting Limited Partner Interests issued to Salomon
pursuant to Section 5.6 of the First
Amended Agreement and in accordance with
the Distribution Support Agreement.
"Assets" means
all of the assets now owned or hereafter acquired by the
Partnership.
"Assignee" means
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.
"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
Group on hand at
the end of such Quarter and (ii) all additional cash and
cash equivalents
of the Partnership Group 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 the General
Partner may not establish cash reserves pursuant to (iii)
above if the
effect of such reserves would be that Genesis MLP is unable to
distribute an
amount equal to the Minimum Quarterly Distribution on all MLP
Common Units and
the MLP General Partner Interest with respect to such
Quarter; and,
provided further, that disbursements made by a 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-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.
"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.
<PAGE> 4
"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.
"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.
"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.
"Commission"
means the United States Securities and Exchange Commission.
"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
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 MLP.
"Conveyance
Agreement" means that certain Purchase & Sale and
Contribution
& Conveyance Agreement, dated as of
November 26, 1996, among the Partnership,
Genesis MLP, 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)(ix).
"Delaware Act"
means the Delaware Revised Uniform Limited Partnership Act,
6 Del C. 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.
"Distribution
Support Agreement" means the Distribution Support Agreement,
dated as of December 3, 1996, between the
Partnership 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).
"Event of
Withdrawal" has the meaning assigned to such term in Section
11.1(a).
<PAGE> 5
"First
Amended Agreement" has the meaning set forth in the recitals to
this Agreement.
"First Amended
MLP Agreement" means the Amended and Restated Agreement of
Limited Partnership of Genesis MLP, dated
as of December 3, 1996.
"Fourth Amended
MLP Agreement" means the Fourth Amended and Restated
Agreement of Limited Partnership of Genesis
MLP, dated as of the date of this
Agreement.
"General
Partner" means Genesis Energy, Inc. and its successors and
permitted assigns as general
partner of the Partnership.
"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 MLP"
means Genesis Energy, L.P., a Delaware limited partnership,
and its successors.
"Group
Member" means a member of the Partnership Group.
"Howell" means
Howell Corporation, a Delaware corporation, and its
Subsidiaries.
"Incentive
Compensation Payment" means a payment made to the General
Partner pursuant to Section 7.12 of the
Third Amended Agreement.
"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, however, 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 MLP Common Unit $20.625,
adjusted as appropriate to give effect to
any distribution, subdivision or
combination of MLP Common Units.
"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)
Genesis
MLP, each Substituted Limited Partner, each
Additional Limited Partner and (b)
solely for purposes of Articles V, VI, VII
and IX and Section 12.4, each
Assignee.
"Limited Partner
Interest" means the ownership interest of a Limited
Partner or Assignee in the Partnership,
which may be evidenced by 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.
<PAGE> 6
"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 holders of Outstanding
Units 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
Limited Partner Interests.
"Master Credit
Support Agreement" means the Master Credit Support Agreement
dated December 3, 1996, among the
Partnership and Salomon which sets forth the
agreement of the Partnership and Salomon
relating to the credit support to be
provided by Salomon to the Partnership.
"Merger
Agreement" has the meaning assigned to such term in Section
14.1.
"Minimum
Quarterly Distribution" has the meaning set forth in the Fourth
Amended MLP Agreement.
"MLP Common
Unit" has the meaning assigned to the term "Common Unit" in the
Fourth Amended MLP Agreement.
"MLP General
Partner Interest" has the meaning assigned to the term
"General Partner Interest" in the Fourth
Amended MLP Agreement.
"MLP Partnership
Security" has the meaning assigned to the term
"Partnership Security" in the Fourth
Amended MLP Agreement.
"MLP Unit"
has the meaning assigned to the term "Unit" in the Fourth
Amended MLP Agreement.
"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, 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).
"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).
"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).
<PAGE> 7
"Net Termination
Loss" means, for any taxable period, 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).
"Non-Competition
Agreement" means the Non-Competition Agreement dated
December 3, 1996, among the Partnership,
Genesis MLP, 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, without
limitation, 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).
"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.
<PAGE> 8
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 its 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.
"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, without
limitation, 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 Crude Oil, L.P., a Delaware limited
partnership, and any successors
thereto.
"Partnership
Group" means the Partnership and any Subsidiary of the
Partnership, 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.
"Percentage
Interest" means (a) as to the General Partner, .01% and (b) as
to Genesis MLP, 99.99%, subject to
adjustment to reflect the issuance of any
additional Partnership Securities in
accordance with Section 5.5.
"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 and (b) when modifying
Partners and Assignees, apportioned
among all Partners and Assignees in
accordance with their respective Percentage
Interests.
"Proxy
Statement" means the definitive Proxy Statement filed by Genesis
MLP
with the Commission under the Securities
Exchange Act of 1934, as amended, for
the purpose of soliciting the votes of the
holders of MLP Common Units with
respect to the Restructuring, as it has
been or as it may be amended or
supplemented from time to time.
"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 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.
"Registration
Statement" means the Registration Statement on Form S-1
(Registration No. 333-11545) as amended,
filed by Genesis MLP with the
Commission under the Securities Act to
register the initial offering and sale of
MLP Common Units to the public.
<PAGE> 9
"Required
Allocations" means (a) any limitation imposed on any allocation
of Net Loss or Net Termination Loss under
Section 6.1(b) or Section 6.1(c) 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.
"Restructuring
Closing Date" means the date on which the Restructuring is
closed.
"Salomon" means
Salomon Smith Barney Holdings, Inc., a Delaware
corporation, and Salomon Brothers Holdings,
Inc., a Delaware corporation.
"Second
Amended Agreement" has the meaning set forth in the recitals to
this Agreement.
"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 the Partnership, Salomon and
the Secured Parties (as defined in the
Security Agreement) securing the
obligations of the Partnership 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).
"Special
Approval" means approval by a majority of the members of the
Audit
Committee.
"Subordinated GP
Units" means the Subordinated GP Units representing a
General Partner Interest held by the
General Partner and Genesis MLP immediately
prior to the closing of the
Restructuring.
"Subordinated LP
Units" means the Subordinated LP Units representing a
Limited Partner Interest held by Salomon
and Howell immediately prior to the
closing of the Restructuring.
"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 10.3 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 set forth in the recitals to
this Agreement.
"Transfer" has
the meaning assigned to such term in Section 4.1(a).
<PAGE> 10
"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.
"Unit" means a
Partnership Security that is designated as a "Unit."
"Unitholder"
means a holder of a Unit.
"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 MLP Common Unit,
the Initial Unit Price less the sum of (i)
all distributions constituting
Capital Surplus theretofore made in respect
of an MLP Common Unit sold in the
initial offering and sale of MLP 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 MLP Common
Unit, adjusted as the General Partner
determines to be appropriate to give
effect to any distribution, subdivision or
combination of such MLP Common 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.
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
vice versa; (b) references to Articles and
Sections refer to Articles and
Sections of this Agreement; and (c)
"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 Partner 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 Crude Oil, 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
<PAGE> 11
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 Partner. 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
Partner.
2.4 Purpose
and Business
The purpose and
nature of the business to be conducted by the Partnership
shall be to (a) acquire, manage and operate
the Assets and any similar assets or
properties, and to 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 type of business
or activity associated with, or
reasonably related to, the Assets 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 or Genesis MLP;
provided however, in the case of (b) above,
that the General Partner reasonably
determines, as of the date of the
acquisition or commencement of such activity,
that such activity (i) generates
"qualifying income" (as such term is defined
pursuant to Section 7704 of the Code) or
(ii) enhances the operations of an
activity of the Partnership that generates
qualifying income. The General
Partner has no obligation or duty to the
Partnership, the 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.
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) The
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
<PAGE> 12
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 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, to effectuate the terms
or
intent of this Agreement; provided, that when required by
any 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,
incompetence,
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 and
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 and 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
Partner or the
Liquidator taken in good faith under such power of attorney.
Each Limited
Partner and 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 the
General Partner's 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
<PAGE> 13
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.
3.3 Outside
Activities of 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;
<PAGE> 14
(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
Genesis MLP or the Partnership Group, (B) could damage Genesis
MLP or 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
TRANSFER OF
PARTNERSHIP INTERESTS;
REDEMPTION OF PARTNERSHIP INTERESTS
4.1 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 by which
the General
Partner assigns its General Partner Interest to another Person
who becomes the
General Partner (or an Assignee) or by which the holder of
a Limited
Partner Interest assigns such Limited Partner Interest to
another
Person who
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 member of the General Partner of any or all of the
issued and
outstanding membership interests of the General Partner.
4.2 Transfer
of General Partner's Partnership Interest
If the General
Partner transfers its interest as the general partner of
Genesis MLP to any Person in accordance
with the provisions of the Fourth
Amended MLP Agreement, the General Partner
shall contemporaneously therewith
transfer all, but not less than all, of its
General Partner Interest herein to
such Person, and the Limited Partners and
Assignees, if any, hereby expressly
consent to such transfer. Except as set
forth in the immediately preceding
sentence and in Section 5.2, the General
Partner may not transfer all or any
part of its General Partner Interest.
4.3 Transfer
of a Limited Partner Interest
A Limited
Partner may transfer all, but not less than all, of its Limited
Partner Interest in connection with the
merger, consolidation or other
combination of such Limited Partner with or
into any other Person or the
transfer by such Limited Partner of all or
substantially all of its assets to
another Person, and following any such
transfer such Person may become a
Substituted Limited Partner pursuant to
Article X. Except as set forth in the
immediately preceding sentence, or in
connection with any pledge of (or any
related foreclosure on) a Limited Partner
Interest solely for the purpose of
securing, directly or indirectly,
indebtedness of the Partnership or Genesis
MLP, and except
<PAGE> 15
for the transfers contemplated by Section
10.3, a Limited
Partner may not transfer all or any part of
its Limited Partner Interest or
withdraw from the Partnership.
4.4 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
authorities with jurisdiction over such transfer, (ii)
terminate the
existence or qualification of the Partnership or Genesis MLP
under the laws
of the jurisdiction of its formation, or (iii) cause the
Partnership or
Genesis MLP 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 MLP
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.
4.5
Elimination and Cancellation of Subordinated LP Units and APIs
At the closing
of the Restructuring, the Outstanding Subordinated LP Units
and Outstanding APIs were eliminated and
cancelled and all obligations
associated with either the Outstanding
Subordinated LP Units or the Outstanding
APIs ceased and were no longer in
effect.
4.6 Conversion
of General Partner Interests
At the closing
of the Restructuring, Genesis MLP's Subordinated GP Units
were converted into a 99.99% Limited
Partner Interest and the General Partner's
Subordinated GP Units were converted into a
.01% General Partner Interest.
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 previous versions of the
partnership agreement superseded by this
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
(i) .01 divided by 99.99 times (ii) the
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,
<PAGE> 16
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 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 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) All fees and other expenses
incurred by the Partnership to promote the
sale of (or to sell) a Partnership Interest 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.
(ii) 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.
(iii) 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.
(iv) In accordance
with the requirements of Section 704(b) of the Code, any
deductions for depreci
