Exhibit 3.1
SECOND AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP
OF
TRANSMONTAIGNE PARTNERS L.P.
This Second Amendment (this “ Second
Amendment ”) to the First Amended and Restated Agreement
of Limited Partnership of TransMontaigne Partners L.P. (the “
Partnership ”) is entered into this 7th day of April,
2008, but effective for all purposes as of as of January 1,
2007, notwithstanding the date of execution hereof, by
TransMontaigne GP L.L.C., a Delaware limited liability company (the
“ General Partner ”), as general partner of the
Partnership. Capitalized terms used but not defined herein
are used as defined in the Partnership Agreement.
RECITALS:
A.
The General Partner, the Organizational Limited Partner and the
Limited Partners of the Partnership entered into that certain First
Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of May 27, 2005 (the “
Partnership Agreement ”); and
B.
The Partnership Agreement was amended by that certain First
Amendment to Amended and Restated Agreement of Limited Partnership
of TransMontaigne Partners L.P. dated as of January 23, 2006
(the “ First Amendment ”, the Partnership
Agreement, as amended by the First Amendment, the “
Amended Partnership Agreement ”); and
C.
Acting pursuant to the power and authority granted to it under
Section 13.1(d)(i) of the Partnership Agreement, the
General Partner has determined that the following amendment to the
Amended Partnership Agreement does not require
the approval of any Limited Partner.
NOW
THEREFORE, the General Partner does hereby further amend the
Amended Partnership Agreement as follows:
Section 1.
Amendment .
(a)
Section 1.1 is hereby amended to add or amend and restate the
following definitions:
(i)
“ Disposed of Adjusted Property ” has the
meaning assigned to such term in
Section 6.1(d)(xii)(B).
(ii)
“ 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 (a) after the
Liquidation Date or (b) upon the sale, exchange or other
disposition of all or substantially all of the assets of the
Partnership Group, taken as a whole, in a single transaction or a
series of related transactions (excluding
1
any
disposition to a member of the Partnership Group). The items
included in the determination of Net Termination Gain shall be
determined in accordance with Section 5.5(b) and shall
not include any items of income, gain or loss specially allocated
under Section 6.1(d).
(iii)
“ 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 (a) after the
Liquidation Date or (b) upon the sale, exchange or other
disposition of all or substantially all of the assets of the
Partnership Group, taken as a whole, in a single transaction or a
series of related transactions (excluding any disposition to a
member of the Partnership Group). The items included in the
determination of Net Termination Loss shall be determined in
accordance with Section 5.5(b) and shall not include any
items of income, gain or loss specially allocated under
Section 6.1(d).
(b)
Section 5.5(d) is hereby amended and restated in its
entirety as follows:
(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, the
issuance of Partnership Interests as consideration for the
provision of services or the conversion of the General
Partner’s Combined Interest to Common Units pursuant to
Section 11.3(b), the Capital Accounts 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 for an amount
equal to its fair market value immediately prior to such issuance
and had been allocated to the Partners at such time pursuant to
Section 6.1(c) in the same manner as any item of gain or
loss actually re
