Exhibit 10.2
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
NOARK PIPELINE SYSTEM, LIMITED PARTNERSHIP
JANUARY 12, 1998
TABLE OF CONTENTS
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF NOARK PIPELINE
SYSTEM, LIMITED PARTNERSHIP............................................. 1
ARTICLE I DEFINITIONS.................................................... 2
1.1 Definitions............................................ 2
1.2 Other Terms............................................ 8
ARTICLE II FORMATION OF LIMITED PARTNERSHIP.............................. 9
2.1 Formation.............................................. 9
2.2 Name................................................... 9
2.3 Offices and Registered Agent........................... 9
2.4 Term of Partnership.................................... 9
2.5 Purpose................................................ 9
2.6 Representations and Warranties Concerning Partnership.. 10
ARTICLE III MANAGEMENT OF THE PARTNERSHIP................................ 10
3.1 Management Committee................................... 10
3.2 Composition of Management Committee.................... 10
3.3 Meetings of Management Committee....................... 10
3.4 Partners Meetings...................................... 11
3.5 Restrictions on Authority of the Management Committee.. 12
3.6 Project Leader......................................... 15
3.7 Delegation............................................. 18
3.8 Officers............................................... 19
3.9 Claims................................................. 19
3.10 Disputed Charges....................................... 19
ARTICLE IV FINANCING OF THE PARTNERSHIP.................................. 20
4.1 Existing Capital Accounts Balances..................... 20
4.2 Capital Contributions.................................. 20
4.3 Failure to Contribute.................................. 21
4.4 Capital Accounts....................................... 22
4.5 Loans by Partners...................................... 22
4.6 Interest............................................... 22
4.7 Time for Return of Contributions....................... 22
4.8 Limited Liability of the Limited Partners.............. 22
4.9 Benefits of Agreement.................................. 22
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ARTICLE V CAPITAL AND INCOME ALLOCATIONS AND DISTRIBUTIONS................ 22
5.1 Allocations Controlling for Capital Account Purpose...... 22
5.2 General Allocation of Profits and Losses................. 23
5.3 Special Interest Expense................................. 23
5.4 Preferential Allocations................................. 23
5.5 Special Profits Allocations.............................. 25
5.6 Other Allocation Rules................................... 26
5.7 Cash Distributions....................................... 26
5.8 Amounts Withheld......................................... 27
5.9 Reimbursements........................................... 27
ARTICLE VI RELATIONS OF THE PARTNERS....................................... 27
6.1 Restricted Transactions.................................. 27
6.2 Exculpation from Liability............................... 28
6.3 Indemnification.......................................... 29
6.4 Title to Partnership Assets.............................. 30
ARTICLE VII ASSIGNABILITY OF PARTNERS' INTERESTS........................... 31
7.1 Restrictions on Transfer of Partner's Interest........... 31
7.2 Right of First Refusal................................... 31
7.3 Opinion of Counsel....................................... 31
7.4 Substituted Partner...................................... 32
7.5 Recognition of Transferee as Partner..................... 32
7.6 Binding Effect........................................... 33
7.7 Permitted Transfers of Partnership Interests............. 33
7.8 Succession to Capital Account............................ 33
ARTICLE VIII WITHDRAWAL AND REMOVAL; ADMISSION OF SUCCESSOR AND ADDITIONAL
GENERAL PARTNERS.......................................................... 33
8.1 Voluntary Withdrawal.................................... 33
8.2 Other Withdrawal Events................................. 33
8.3 Removal of a Partner.................................... 34
8.4 Liability of a Withdrawn General Partner................ 34
8.5 Additional or Successor Partners........................ 34
8.6 Continuation of Partnership............................. 34
8.7 Automatic Suspension of the Vote and Right to
Participate in Management of Partnership Affairs ....... 34
ARTICLE IX DISSOLUTION AND LIQUIDATION.................................... 35
9.1 Dissolution............................................. 35
9.2 Liquidation............................................. 35
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ARTICLE X ALLOCATIONS AND DISTRIBUTIONS ON LIQUIDATION................... 35
10.1 Liquidation and Termination............................ 35
10.2 Capital Account Deficits............................... 36
10.3 Special Distributions.................................. 36
10.4 Deemed Distribution and Recontribution................. 37
ARTICLE XI CERTIFICATES AND OTHER DOCUMENTS.............................. 37
11.1 Project Leader as Attorney for Partners................ 37
11.2 Making and Filing of Certificate....................... 38
11.3 Cancellation of Certificates Evidencing
Partnership Interests.................................. 39
ARTICLE XII BOOKS OF ACCOUNT, FINANCIAL STATEMENTS AND FISCAL MATTERS.... 39
12.1 Books of Account....................................... 39
12.2 Reports and Financial Statements....................... 39
12.3 Tax Returns and Other Reports.......................... 40
12.4 Fiscal Year............................................ 40
12.5 Bank Accounts, Funds and Assets........................ 40
12.6 Tax Elections.......................................... 40
12.7 Other Partnership Records.............................. 41
12.8 Survival of Tax Provision.............................. 42
12.9 Deposit of Funds ...................................... 42
ARTICLE XIII DISPUTE RESOLUTION ......................................... 42
13.1 Invoking Procedure..................................... 42
13.2 Stalemate Defined...................................... 43
13.3 Investigation.......................................... 43
13.4 Neutral................................................ 43
13.5 Schedule............................................... 44
13.6 Discovery.............................................. 44
13.7 Written Submission..................................... 44
13.8 Representatives........................................ 44
13.9 Structure.............................................. 44
13.10 Mandatory.............................................. 44
13.11 Fees................................................... 45
13.12 Later Proceedings...................................... 45
13.13 Dispute Resolution..................................... 45
ARTICLE XIV LIMITATION OF AUTHORITY...................................... 47
ARTICLE XV LIMITATION OF LIABILITIES..................................... 47
ARTICLE XVI MISCELLANEOUS................................................ 48
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16.1 Notices................................................ 48
16.2 Captions and Pronouns.................................. 49
16.3 Binding Effect......................................... 49
16.4 Amendment of the Agreement............................. 49
16.5 Governing Law.......................................... 49
16.6 Counterparts and Execution............................. 50
16.7 Severability........................................... 50
16.8 Waiver................................................. 50
16.9 Attorneys' Fees........................................ 50
16.10 Construction........................................... 50
I. EXHIBITS: EX. NO.
- Description of Interconnection, Integration and
Expansion of Pipeline Facilities of NOARK and Ozark A
- Accounting Procedures B
II. SCHEDULES: SCH. NO.
- Initial Capital Account Balances 4.1
- Special Revenue Allocation Base Amounts 5.4(a)
- Supply Receipt Points on NOARK Pipeline System 5.4(b)
- Special Revenue Allocation Examples (5) 5.4(d)
- Insurance 6.3(d)
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THE SECURITIES REPRESENTED BY THIS AGREEMENT OF LIMITED PARTNERSHIP HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER,
EXCEPT UPON REGISTRATION OR UPON DELIVERY TO THE PARTNERSHIP OF AN OPINION OF
COUNSEL SATISFACTORY TO THE GENERAL PARTNERS THAT REGISTRATION IS NOT REQUIRED
FOR SUCH TRANSFER OR THE SUBMISSION TO THE GENERAL PARTNERS OF THE PARTNERSHIP
OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE GENERAL PARTNERS TO THE
EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF
1933, AS AMENDED, APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED UNDER SUCH ACT OR LAWS.
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
NOARK PIPELINE SYSTEM, LIMITED PARTNERSHIP
This Amended and Restated Agreement of Limited Partnership ("Agreement")
is made as of January 12, 1998, by and among the Partners (as defined below).
RECITALS
A. NOARK Pipeline System, Limited Partnership, an Arkansas limited
partnership (the "Partnership") was formed and organized under the terms of that
certain Limited Partnership Agreement dated as of October 10, 1991 (the
"Original Agreement").
B. The Original Agreement was amended by that certain Amendment No. 1 to
the Original Agreement, dated February 24, 1993.
C. SWPL and EAPC and their Affiliates have entered into an Omnibus Project
Agreement dated January 12, 1998 which contemplates, among other things, this
amendment and restatement of the Original Agreement, as amended, in its
entirety.
D. The Parties intend that this Agreement replaces and supersedes the
Original Agreement, as amended, in its entirety.
In consideration of the mutual promises made herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Partners hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms used in this Agreement shall (unless
otherwise expressly provided herein or unless the context otherwise requires)
have the following respective meanings:
"Act" means the Arkansas Revised Limited Partnership Act of 1991, Ark.
Code Ann. Section 4-43-101 et seq., as it may be amended from time to time, and
any successor act.
"Affiliate" or "Affiliates" means with respect to any Person, except as
otherwise provided herein: (i) any person or entity directly or indirectly
controlling, controlled or under common control with such Person; (ii) any
person or entity directly or indirectly owning or controlling ten percent (10%)
or more of the outstanding voting securities or ownership interests of such
Person; (iii) any person or entity ten percent (10%) or more of whose
outstanding voting securities or ownership interests are directly or indirectly
owned or controlled by such Person; (iv) any officer, director, partner, manager
or member of a Person; and (v) any company for which a Person acts as an
officer, director, partner, manager or member.
"Budget" means the annual budget of anticipated capital and operating
costs of the Partnership described in Section 3.6(g) hereof.
"Capital Account" means, with respect to a Partner, the Capital Account
determined and maintained for such Partner in accordance with the following
provisions:
(a) The initial balances of each Capital Account shall be the amounts
set forth in Schedule 4.1.
(b) To each Partner's Capital Account there shall be credited such
Partner's future Capital Contributions when made, such Partner's distributive
share of Profits, allocated pursuant to Section 5.2 hereof, any items in the
nature of income or gain that are specially or curatively allocated pursuant to
Sections 5.3 through 5.5 hereof, and the amount of any Partnership liabilities
assumed by such Partner or which are secured by any asset of the Partnership
distributed to such Partner.
(c) To each Partner's Capital Account there shall be debited the amount
of cash and the Gross Asset Value of any Partnership asset distributed to such
Partner pursuant to any provision of this Agreement, such Partner's distributive
share of Losses allocated pursuant to Section 5.2 hereof, any items in the
nature of deductions or losses that are specially or curatively allocated
pursuant to Sections 5.3 through 5.5 hereof, and the amount of any liabilities
of such Partner assumed by the Partnership or which are secured by any property
contributed by such Partner to the Partnership.
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(d) In the event all or a portion of a Partnership Interest is transferred
in accordance with the terms of this Agreement, the transferee shall succeed to
the Capital Account of the transferor to the extent it relates to the
transferred Partnership Interest.
(e) In determining the amount of any liability for purposes of this
definition of Capital Accounts, there shall be taken into account Code Section
752(c) and any other applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to have a
"substantial economic effect" and to reflect the Partners' economic interests in
the Partnership for tax purposes. However, in the event that changes in the
allocations are required by the Service or any other taxing authority or other
curative allocations and adjustments to the Capital Accounts may be required for
income tax purposes to comply with Treas. Reg. Section 1.704-1(b) or otherwise,
the Partners agree that such allocations and adjustments will not be made to the
Capital Accounts and the Capital Accounts as herein calculated will control upon
liquidation.
"Capital Contributions" means, with respect to any Partner, the amount of
money and the initial Gross Asset Value of any property (other than money)
contributed in the future to the Partnership with respect to the Partnership
Interest held by such Partner. Loans to the Partnership shall not be included in
the Capital Account of any Partner. The principal amount of a promissory note
which is not readily traded on an established securities market and which is
contributed to the Partnership by the maker of the note shall not be included in
the Capital Account of any Partner until the Partnership makes a taxable
disposition of the note or until (and to the extent) principal payments are made
on the note, all in accordance with Treas. Reg. Section 1.704-1 (b)(2)(iv)(d)(2)
(relating to the contributions to a partnership of promissory notes).
"Certificate of Limited Partnership" means the Certificate of Limited
Partnership of the Partnership filed with the Secretary of the State of
Arkansas, as it may be amended and/or restated from time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time (or any corresponding provisions of succeeding law).
"Depreciation" means, for each fiscal year or other period, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that if
the Gross Asset Value of an asset differs from its adjusted basis for Federal
income tax purposes at the beginning of such year or other period, Depreciation
shall be an amount which bears the same ratio to such beginning Gross Asset
Value as the Federal income tax depreciation, amortization, or other cost
recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the Federal income tax
depreciation, amortization, or other cost recovery deduction for such year is
zero, Depreciation shall
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be determined with reference to such beginning Gross Asset Value using any
reasonable method selected by the Management Committee.
"EAPC" means Enogex Arkansas Pipeline Corporation, an Oklahoma
corporation.
"Existing Loans" means the NOARK Debt, and any subsequent loans to the
Partnership replacing the then existing principal balance of the NOARK Debt, or
the then existing principal balance of such subsequent loans, as applicable.
"Expansion" means an expansion of the pipeline facilities included within
the System by looping, adding compression, extending the mainline, or by
constructing or purchasing laterals or gathering facilities linking such
pipeline facilities to a Partner's or a third party's facilities.
"General Partner" or "General Partners" means EAPC and SWPL, and any
additional Person admitted as a general partner of the Partnership, but does not
include any Person who has ceased to be a general partner of the Partnership.
"Gross Asset Value" means, with respect to any asset, the asset's adjusted
basis for Federal income tax purposes, except as follows:
(a) The Gross Asset Value of the Partnership's assets as of the date of
this Agreement shall be consistent with the initial balances of the Capital
Accounts as set forth in Schedule 4.1.
(b) The initial Gross Asset Value of any asset contributed by a Partner to
the Partnership shall be the gross fair market value of such asset, as
determined by agreement between the contributing Partner and the other Partners;
(c) The Gross Asset Values of all Partnership assets shall be adjusted to
equal their respective gross fair market values, as determined by a
SuperMajority in Interest of the Partners as of the following times: (i) the
acquisition of an additional interest in the Partnership by a new or existing
Partner in exchange for more than a de minimis Capital Contribution; (ii) the
distribution by the Partnership to a Partner of more than a de minimis amount of
Property as consideration for an interest in the Partnership; and (iii) the
liquidation of the Partnership within the meaning of Treas. Reg. Section
1.704-1(b)(2)(ii)(g) (relating to when a liquidation of a partnership occurs);
provided, however, that adjustments pursuant to clauses (i) and (ii) above shall
be made only if a SuperMajority in Interest of the Partners determines that such
adjustments are necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
(d) The Gross Asset Value of any Partnership asset distributed to any
Partner shall be the gross fair market value of such asset on the date of
distribution as determined by the Partners (or by an independent appraiser if
the Partners are unable to agree upon a value); and
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(e) The Gross Asset Values of Partnership assets shall be increased or
decreased to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Treas. Reg. Section 1.704-1(b)(2)(iv)(m)(relating to Code Section
754 elections) and the definition of Capital Account hereof.
"Indemnitee" shall mean (i) any Partner or any former Partner, (ii) any
Project Leader or former Project Leader, (iii) the Management Committee or any
member or former member of the Management Committee, (iv) any Person who is or
was a NOARK Related Entity, (v) any Person who is or was an Affiliate of a
Partner or a former Partner who is or was performing or providing services on
behalf of the Partnership (including any NOARK Related Entity), (vi) any Person
who is or was an officer, director, employee, partner, agent or trustee of the
Partner, the Partnership (including any NOARK Related Entity), any former
Partner, or any such Affiliate, or (vii) any Person who is or was serving at the
request of a Partner, any former Partner, or any such Affiliate, as a director,
officer, employee, partner, agent, attorney or trustee of such Partner, former
Partner or Affiliate.
"Inservice Expansion Date" means the date on which the interconnection,
integration and expansion of the pipeline facilities of the Partnership and
Ozark (as more fully described on Exhibit A) are completed and commence full
time operations.
"Limited Partner" or "Limited Partners" means EAPC with respect to its
Partnership Interest as a Limited Partner and its successor, and any other
person or entity admitted as a Limited Partner of the Partnership pursuant to
this Agreement, but does not include any Person who has ceased to be a Limited
Partner.
"Liquidator" means the Person in charge of the liquidation of the
Partnership's assets which shall be the Management Committee unless a
SuperMajority in Interest of Partners designates another Person as Liquidator.
"Major Decision" shall have the meaning set forth in Section 3.5 of this
Agreement.
"Management Committee" means the Management Committee described in Article
III of this Agreement.
"Management Committee Approval" shall have the meaning set forth in
Section 3.3 of this Agreement.
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"NOARK Debt" means (a) the debt incurred by NOARK pursuant to the terms of
that certain Credit Agreement and related documents dated as of February 26,
1993 among NOARK, the lenders and The First National Bank of Chicago, as Agent,
as amended by the First Amendment to NOARK Pipeline System, Limited Partnership
Credit Agreement dated February 1, 1994 and (b) the debt incurred by NOARK
pursuant to the terms of that certain Construction Loan and Note Purchase
Agreement and related documents dated as of October 10, 1991 and as amended by
Amendment No. 1 and Amendment No. 2 to the Construction Loan and Note Purchase
Agreement dated as of January 29, 1993 and February 24, 1993, respectively,
between NOARK and The Prudential Insurance Company of America.
"NOARK Related Entity" means any Person which is wholly owned by the
Partnership.
"Omnibus Agreement" means that certain Omnibus Project Agreement dated as
of January 12, 1998, by and among EAPC, SWPL, Southwestern Energy Company and
Enogex Inc.
"Ozark" means Ozark Pipeline, Inc., a Delaware corporation.
"Ozark Acquisition" means the transaction in which Enogex Interstate
Transmission, L.L.C. will acquire all of the pipeline assets of Ozark or all of
the issued and outstanding capital stock of Ozark.
"Partners" or "Partner" means the General Partners and the Limited
Partner, or any of them individually.
"Partnership" means NOARK Pipeline System, Limited Partnership, an
Arkansas limited partnership.
"Partnership Agreement" or "Agreement" means this Amended and Restated
Agreement of Limited Partnership.
"Partnership Interest" means that interest of a Partner in the
Partnership, as described in this Agreement.
"Partnership Percentage" means the percentage of each Partner in the
Partnership as the same may change from time to time in accordance with the
terms of this Agreement. As of the date of this Agreement, the Partnership
Percentage of each Partner is as set forth below:
SWPL 60% (entirely as a General Partner)
EAPC 40% (39% as a General Partner and 1% as a Limited Partner)
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At such time as the Ozark Acquisition is consummated and all of the ownership
interests of Enogex Interstate Transmission, L.L.C. are contributed to the
Partnership as provided for in Section 3 of the Omnibus Agreement, the
Partnership Percentage of each Partner shall be changed to the following:
SWPL 32% (entirely as a General Partner)
EAPC 68% (67% as a General Partner and 1% as a Limited Partner)
On the Inservice Expansion Date, the Partnership Percentage of each
Partner shall be changed to the following:
SWPL 25% (entirely as a General Partner)
EAPC 75% (74% as a General Partner and 1% as Limited Partner)
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint stock company,
trust, unincorporated organization or other entity.
"Profits" and "Losses" means, for each fiscal year or other period, an
amount equal to the Partnership's taxable income or loss for such year or period
determined in accordance with Code Section 703(a) (for this purpose, all items
of income, gain, loss, or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(a) Any income of the Partnership that is exempt from Federal income tax
and not otherwise taken into account in computing Profits or Losses pursuant to
this definition of Profits and Losses shall be added to such taxable income or
loss;
(b) Any expenditures of the Partnership described in Code Section 705(a)
(2)(B)or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treas.
Reg. Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits or Losses pursuant to this definition of Profits and Losses,
shall be subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Partnership asset is
adjusted as required by the terms of subsections (c), (d) or (e) of the
definition of Gross Asset Value hereof, the amount of such adjustment shall be
taken into account as gain or loss from the disposition of such asset for
purposes of computing Profits or Losses;
(d) Gain or loss resulting from any disposition of Partnership assets with
respect to which gain or loss is recognized for Federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property disposed
of, notwithstanding that the adjusted tax basis of such property differs from
its Gross Asset Value; and
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(e) In lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation for such fiscal year or other period in
accordance with the definition of Depreciation herein.
(f) Any items of gross income specially allocated pursuant to Section 5.4
or interest expense allocated pursuant to Section 5.3 shall not be considered
when calculating "Profits" or "Losses" because such items are specially
allocated.
"Project Leader" means the person designated as Project Leader in
accordance with Section 3.6 hereof.
"Proposing Partner" shall have the meaning set forth in Section 4.2(b) of
this Agreement.
"SWPL" means Southwestern Energy Pipeline Company, an Arkansas corporation
and its permitted successors and assigns.
"Service" means the Internal Revenue Service of the United States of
America.
"Substituted Partner" shall refer to a Transferee of a Partner's
Partnership Interest who is admitted to the Partnership as a Partner in
accordance with the provisions of Section 7.4 of this Agreement.
"SuperMajority in Interest" means such of the Partners as have, at the
time of determination, eighty percent (80%) or more of the Partnership
Percentages of all Partners.
"System" shall mean the pipeline system and related equipment and property
owned, directly or indirectly, by the Partnership (including any NOARK Related
Entity) on the date hereof together with the pipeline assets and related
equipment and property to be contributed to the Partnership under the terms of
the Omnibus Agreement (whether directly or indirectly through contributions of
ownership interests), and all pipeline facilities and related equipment and
property hereafter acquired directly or indirectly, by the Partnership
(including any NOARK Related Entity), all as same may be modified or expanded
pursuant to the provisions of this Agreement.
"Transfer" means, as a noun, any voluntary or involuntary transfer,
assignment, sale, pledge, gift, hypothecation or other disposition and, as a
verb, voluntarily or involuntarily to transfer, assign, sell, pledge, gift,
hypothecate or otherwise dispose of.
"Transferee" shall have the meaning set forth in Section 7.1 hereof.
"Transferor" shall have the meaning set forth in Section 7.1 hereof.
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"Treasury Regulations" or "Treas. Reg." means the income tax regulations,
including proposed and temporary regulations, promulgated under the Code, as
such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
1.2 Other Terms. Other terms may be defined elsewhere in the text of this
Agreement and shall have the meaning indicated therein.
ARTICLE II
FORMATION OF LIMITED PARTNERSHIP
2.1 Formation. The Partnership has been formed pursuant to the Act, and
shall be governed by the Act and the terms and conditions set forth
herein.
2.2 Name. The name of the Partnership shall be, and the business of the
Partnership shall be conducted under the name of, NOARK Pipeline System, Limited
Partnership. The Partnership's business may be conducted under any other name or
names deemed advisable by the Management Committee.
2.3 Offices and Registered Agent. The principal offices of the Partnership
shall be at such place or places as the Management Committee may determine;
provided, that, such place or places shall as soon as reasonably practicable
after the date of this Agreement be established in Oklahoma City, Oklahoma, in
an office which is separate from that of any Partner. The Partnership shall
maintain a registered agent and a registered office in Arkansas as the
Management Committee shall designate from time to time on the Partnership's
Certificate of Limited Partnership. As of the date of this Agreement, the
principal office shall be located at 600 Central Park Two, 515 Central Park
Drive, Oklahoma City, Oklahoma 74124-0300 and the registered agent and
registered office shall be The Corporation Company, 417 Spring Street, Little
Rock, AR 72201. The Partnership may maintain offices at such other place or
places as the Management Committee deems advisable.
2.4 Term of Partnership. The Partnership commenced as of the date of the
filing of the Certificate of Limited Partnership as required under the Act and
shall continue for a period ending the earlier of:
(a) September 30, 2047;
(b) The date on which all of the assets acquired by the Partnership have
been sold and converted to cash (or to cash equivalents, or securities tradeable
on a national securities exchange) or otherwise disposed of and all installment
obligation receivables have been collected;
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(c) The date on which the Partnership is voluntarily dissolved upon
approval by a SuperMajority in Interest of the Partners;
(d) The date on which the Partnership is dissolved by operation of law or
judicial decree; or
(e) The date on which the Partnership no longer has any General Partners.
2.5 Purpose. The purpose and business of the Partnership shall be any
business which may lawfully be conducted by a limited partnership organized
pursuant to the Act. In particular, and not by way of limitation, the
Partnership (including any NOARK Related Entity) shall engage in the gathering,
processing, compression, transmission and marketing of natural gas and natural
gas liquids.
2.6 Representations and Warranties Concerning Partnership. Each Partner
represents and warrants that (i) the execution and delivery of this Agreement by
such Partner and the performance thereof by such Partner of its obligations will
not contravene any provision of, or constitute a default under, any indenture,
mortgage or other agreement of such Partner, any applicable law or regulation or
any order of any court, commission or governmental agency having jurisdiction,
(ii) this Agreement is a legal, valid and binding obligation of such Partner
enforceable against such Partner in accordance with its terms, except insofar as
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether enforcement
is considered in equity or at law), and (iii) it is acquiring its interest in
the Partnership for its own account for investment, and not with a view to the
sale or distribution thereof.
ARTICLE III
MANAGEMENT OF THE PARTNERSHIP
3.1 Management Committee. The Partnership (including all NOARK Related
Entities) shall be managed by the Management Committee, which, except as
otherwise provided in this Agreement (including without limitation, those
matters which under Section 3.5 require the approval of a SuperMajority in
Interest of Partners) shall have exclusive authority with respect to all affairs
of the Partnership (including any NOARK Related Entities).
3.2 Composition of Management Committee. The Management Committee shall be
composed of five (5) members. One member shall be the Project Leader as
determined in Section 3.6 below. EAPC (together with any Substituted Partner(s)
succeeding to EAPC's Partnership Interest) shall designate two of the four
remaining members of the Management Committee, and SWPL, (together with any
Substituted Partner(s) succeeding to SWPL's Partnership Interest) , shall
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designate the two remaining members of the Management Committee. Each Partner
shall notify all other Partners in writing of their designations to the
Management Committee, including any alternate members they may choose to
designate. Such alternate members shall have full authority to act in the
absence of a primary member. The Partners shall have authority to remove their
respective designees to the Management Committee at any time and to replace them
with new designees at any time upon giving written notice to the other Partners.
3.3 Meetings of Management Committee. The Project Leader shall preside at
all meetings of the Management Committee, which shall meet at least quarterly.
Special meetings of the Management Committee may be called at such times and
places, and in such manner, as the Project Leader or any Partner deems necessary
and requests in writing, and at such times as requested in writing by any member
of the Management Committee. Unless notice is waived by all members of the
Management Committee, notice of all meetings shall be given by the Project
Leader to all Management Committee members and to all Partners at least five (5)
days in advance of the time set for the meeting. The notice will be accompanied
by an agenda of the matters the proponent of the meeting intends to present at
the meeting; provided, that, the scope of the issues to be discussed at the
Management Committee meeting need not be limited to the matters stated in the
notice. Any member of the Management Committee may require that items be added
to the agenda by notice to all other Management Committee members and Partners
given at least forty-eight (48) hours prior to the meeting. Items may be added
to the agenda at a Management Committee meeting only if all members of the
Management Committee are present at such meeting and agree to the addition of
such items. Although discussions of other matters may take place, only agenda
items may be formally decided at any Management Committee meeting. All meetings
of the Management Committee shall be held in person or by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. The members of the Management
Committee may act through written proxies, and the Management Committee may take
action in lieu of a meeting through a written consent signed by all of the
members of the Management Committee. The presence in person, by proxy or through
alternates of not less than fifty percent (50%) of the members of the Management
Committee shall be necessary to constitute a quorum at any meeting for the
transaction of business. Unless otherwise provided herein, the affirmative vote
of a majority of the members in attendance at a meeting of the Management
Committee at which a quorum is present ("Management Committee Approval") shall
be necessary and sufficient to take any action on behalf of the Management
Committee. Each member on the Management Committee shall have one vote. In the
absence of a quorum, a majority of the members present at the meeting may
adjourn such meeting from time to time until a quorum is present. Written
minutes of all Management Committee meetings shall be maintained and distributed
promptly to all members of the Management Committee.
3.4 Partners Meetings.
(a) Immediately upon execution of this Agreement, each Partner shall
designate, by notice given to each other Partner and to the Partnership,
an individual to serve as its
11
primary representative to vote at meetings of the Partners. By like
notice, each Partner may designate not more than one alternative
representative who shall have authority to act in lieu of its primary
representative. In the absence of a primary representative, the designated
alternate may serve in the place of the primary representative. Any
Partner may at any time, by written notice to all other Partners and to
the Partnership, remove its primary representative or alternate
representative and designate a new primary representative or alternate
representative.
(b) The Project Leader shall preside at all meetings of the
Partners. Meetings of the Partners may be called at such times and places,
and in such manner, as requested in writing by a representative of any
Partner. Such request shall identify the items the Partner proposes to be
placed on the agenda for such meeting. Unless notice is waived by the
representatives of all Partners, notice of all meetings shall be given by
the Project Leader to all representatives and alternates at least five
days in advance of the time set for the meeting. The notice will be
accompanied by an agenda of matters to be presented by the Project Leader.
Any representative may require that items be added to the agenda by notice
to the representatives of all other Partners given at least two days prior
to the date of the meeting. Although discussion of other matters may take
place, only agenda items may be formally decided; provided, that by
unanimous vote of the representatives at a meeting in which at least a
SuperMajority in Interest of the Partners are represented, items may be
added to the agenda. All meetings of the Partners shall be held in person
or by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other. All expenses of the meeting and notification shall be borne by the
Partnership. Representatives of Partners (or their respective designated
alternates) holding at least 80% of the Partnership Percentages shall be
necessary to constitute a quorum at any meeting for the transaction of
business. In the absence of a quorum, a majority of the representatives
present at the meeting may adjourn such meeting from time to time until a
quorum is present. Written minutes of all meetings shall be maintained and
distributed promptly to all representatives.
(c) Each representative at a meeting of Partners shall have a vote
equal to the Partnership Percentages of the Partner he represents.
(d) Personal presence of Partners' representatives shall not be
required, provided that at or prior to the meeting time either (i) an
effective written consent to or rejection of such proposed action is
submitted to the Project Leader or (ii) a proxy is submitted to the
Project Leader. Attendance by the representatives of the Partner (or its
respective designated alternate) and voting in person at any meeting shall
revoke any written consents or rejections of such Partner or any proxies
previously submitted with respect to the action proposed to be taken at
such meeting.
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(e) Any matter on which the Partners are authorized to take action
under this Agreement or under law may be taken by the Partners without a
meeting and shall be as valid and effective as action taken by the
Partners at a meeting assembled, if written consents to such action by the
Partners are signed by the Partners entitled to vote upon such action at a
meeting who hold the Partnership Percentages required to authorize such
action, and are delivered to the Project Leader.
3.5 Restrictions on Authority of the Management Committee. Notwithstanding
anything to the contrary in this Agreement (other than Section 3.6(j)),
including the provisions set forth in Section 3.1, the following actions of the
Management Committee (a "Major Decision") shall require the consent of a
SuperMajority in Interest of Partners and without such consent, may not be taken
by the Partnership (nor any Partner or other Person on behalf of the
Partnership), unless such actions are approved as a result of arbitration
pursuant to Section 13.13 below):
(a) Admitting any General Partner or Limited Partner.
(b) Any incurrence of indebtedness for borrowed money other than the NOARK
Debt, the loan entered into with Enogex Inc. as contemplated by Section 9 of the
Omnibus Agreement, or in the ordinary course of business. A borrowing, or series
of borrowings for purposes that are operationally related and that take place in
a consecutive 24 month period, shall be considered other than in the ordinary
course of business only if such borrowing or series of borrowings involves more
than $150,000.
(c) Entering into any gas transportation, gas purchase or gas sales
contract or any other contract or transaction between i) any Partner or any of
its Affiliates and ii) the Partnership (including any NOARK Related Entity),
other than contracts or transactions satisfying the parameters of the applicable
policy established by the Partners under Section 3.5(p).
(d) Amending this Agreement.
(e) Changing the nature of the Partnership's business.
(f) Establishing the nature and scope of the business of any NOARK Related
Entity including NOARK Energy Services L.L.C. and Ozark Gas Gathering, L.L.C.,
including, without limitation, their operating parameters, functions and
activities.
(g) Selling, exchanging, leasing, mortgaging, pledging or otherwise
transferring Partnership (including any NOARK Related Entity) assets other than
in the ordinary course of business. For purposes of this Section 3.5(g), a sale,
exchange, lease, mortgage, pledge or other transfer of assets or a series of
such transactions that are operationally related and that take place in a
consecutive 24 month period, shall be considered other than in the ordinary
course of business only if such transaction or series of transactions involves
more than $250,000.
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(h) Dissolving or winding up the Partnership.
(i) Amending the Certificate of Limited Partnership of the Partnership
except as otherwise permitted under this Agreement.
(j) Forming or dissolving any Partnership committee or changing the
authority or responsibilities of any committee.
(k) Except for expenditures, commitments, or contracts involving
Expansions or matters for which EAPC has agreed to make contributions to the
Partnership pursuant to Section 10(c) of the Omnibus Agreement:
(i) Entering into any contract which involves expenditures or
commitments by the Partnership in excess of $100,000 for projects not
included in any approved Budget or accepting performance under such
contract.
(ii) Entering into any contract which involves expenditures or
commitments by the Partnership in excess of $500,000 for projects included
in any approved Budget or accepting performance under such contract.
(iii) Entering into any contract (x) for the transportation,
purchase, sale, exchange or balancing of natural gas or (y) which creates
any material restrictions, conditions or impediments to the Partnership,
and which in the case of either (x) or (y) has a term in excess of one
year.
(l) Approving or amending the Budget.
(m) Acquiring assets for the Partnership involving an amount more than
$100,000 (for matters not included in any approved Budget) or $500,000 (for
matters included in any approved Budget), other than i) for purposes of an
Expansion, which shall be governed by Section 4.2(b), or ii) for matters for
which EAPC has agreed to make contributions to the Partnership pursuant to
Section 10(c) of the Omnibus Agreement, provided, however, that any such
acquisition involves terms that are standard and customary in the industry and
would not have a material adverse effect on the Partnership.
(n) Determining any matter which any contract to which the Partnership is
a party expressly provides shall be approved, decided, determined, or otherwise
resolved or acted upon by the Management Committee.
(o) Determining any material Partnership tax policy, other than that fixed
by this Agreement and approving the annual federal and state income tax returns
of the Partnership. For purposes of the foregoing material Partnership tax
policy shall include without limitation the making
14
of any material tax election and the adoption of a method of accounting with
respect to any material item.
(p) Approving any material policy decisions of the Partnership and changes
thereof, which approvals shall not be unreasonably withheld. For purposes of the
foregoing, material policy decisions shall include without limitation i) the
making of any decision regarding actions to be taken with any governmental
agency which would have a material effect on the Partnership or the System, ii)
the establishment of parameters for the Partnership (including any NOARK Related
Entity) to enter into gathering or transportation agreements on the System and
iii) the establishment of parameters for the Partnership (including any NOARK
Related Entity) to engage in gas marketing activities. The Partners hereby
acknowledge and agree that it is not their intent to use this provision to
micro-manage the operations of the Partnership.
(q) Determining the gross fair market value of the Partnership assets as
provided for in subsection (c) of the definition of Gross Asset value.
(r) Determining the form of a nominee agreement as contemplated by Section
6.4.
(s) Approving appointment of directors, managers or officers of NOARK
(except for the Project Leader whose approval shall be subject to Section
3.6(e)) or any NOARK Related Entity who are employees of any Partner or their
Affiliates; and the Project Leader shall consult with the Partners regarding the
appointment of any director, manager or officer of NOARK or any NOARK Related
Entity who is not an employee of any Partner or their Affiliates, but no
approval of such appointment shall be required.
(t) Approving the final design of the interconnection, integration and
expansion of the pipeline facilities of NOARK and Ozark described on Exhibit "A"
and any contracts for the supply of fuel or electricity to power the compressor
operations of the System. For purposes of the foregoing, the "final" design
shall mean those aspects of the design which would significantly impact future
operating expenses, or future operations, of the System.
(u) The decision to settle or to litigate and defend a claim against the
Partnership as provided in Section 3.9.
3.6 Project Leader.
(a) The Project Leader shall be the chief executive officer of the
Partnership (including the NOARK Related Entities) and, subject to directives of
the Management Committee and the other provisions of this Agreement, shall have
general supervision of the affairs of the Partnership (including the NOARK
Related Entities) and shall have all power and authority reasonably necessary to
perform or cause to be performed the general operation and conduct of the
Partnership. The Project Leader shall preside when present at meetings of the
Partners and the Management Committee. He shall have general authority to
execute bonds, deeds and contracts in the name of the
15
Partnership (including the NOARK Related Entities) and in general to exercise
all the powers usually appertaining to the office of president of a company,
except as otherwise provided by statute or this Agreement.
(b) The Project Leader shall manage the day-to-day operations of the
Partnership (including the NOARK Related Entities); provided, that, the Project
Leader shall undertake no Major Decision without the approval of a SuperMajority
in Interest of the Partners. Subject at all times to the control and direction
of the Management Committee, the Project Leader shall oversee the executive,
administrative and operating level services of the Partnership (including the
NOARK Related Entities). The Project Leader's executive level management
responsibilities shall include, without limitation: (1) implementation of
decisions of the Management Committee; (2) supervision and oversight of the
System's operations and financial affairs; and (3) such other duties and
services reasonably incidental to the foregoing which the Management Committee
may request the Project Leader to provide. The Project Leader's oversight of
administrative and operating level responsibilities shall include, without
limitation, oversight of: (i) contract and gas management services; (ii) finance
and accounting services; (iii) marketing services; (iv) engineering services;
(v) data systems and operations oversight; (vi) gathering activities and (vii)
day-to-day operating services necessary for the System.
(c) By way of illustration and not by way of limitation, the powers of the
Project Leader shall include: (i) executing, acknowledging and delivering any
and all agreements and instruments on behalf of the Partnership (including any
NOARK Related Entity); (ii) preparing and submitting annual Budgets to the
Partners for approval; (iii) employing or contracting with Persons in the
operations and management of the business of the Partnership (including any
NOARK Related Entity) on such terms and for such compensation as the Project
Leader shall determine, subject to the constraints and restrictions established
by the Budget, and, in the case of Persons employed by or affiliated with any
Partner or an Affiliate of any Partner, the provisions of the Accounting
Procedures attached hereto as Exhibit B; (iv) preparing or causing to be
prepared reports, statements and other relevant information for distribution to
the Partners; (v) opening accounts and deposits and maintaining funds in the
name of the Partnership (including any NOARK Related Entity) in banks or other
financial institutions or investing such funds; and (vi) making all reports and
filings required by governmental authorities.
(d) The Project Leader shall initially be E. Keith Mitchell who shall
serve in such capacity until the earlier of his death, resignation or removal.
In order for the Project Leader to receive the benefits he has heretofore
received, the Project Leader shall be employed by EAPC, but shall be dedicated
full time to the Partnership. The Project Leader shall maintain his office at
the principal business office of the Partnership.
(e) The Project Leader shall be subject to removal with or without cause
at any time by EAPC (or any Substituted Partner succeeding to all of EAPC's
Partnership Interest); provided such removal shall not be arbitrary or
capricious. If a vacancy occurs in the office of Project Leader,
16
whether through death, resignation, removal or otherwise, the Partners shall
consult regarding the appointment of a new Project Leader. After such
consultation, EAPC (or any Subsequent Partner succeeding to all of EAPC's
Partnership Interest) shall have the authority to propose the new Project Leader
who shall become the Project Leader upon the consent of SWPL (or any Subsequent
Partner(s) succeeding to SWPL's Partnership Interest), which consent shall not
be unreasonably withheld. It shall be deemed unreasonable for SWPL (or any
Subsequent Partner(s) succeeding to SWPL's Partnership Interest) to withhold its
consent by reason of the fact that the proposed Project Leader is or was an
employee of EAPC (or any Subsequent Partner succeeding to all of EAPC's
Partnership Interest) or of an Affiliate of EAPC.
(f) The Project Leader shall have power to contract with third parties on
behalf of and in the name of the Partnership (including any NOARK Related
Entity) when the contract is approved by the Management Committee (or is within
the approval levels delegated to him by the Management Committee), and to make
expenditures on behalf of the Partnership (including any NOARK Related Entity)
when such expenditures have been approved by the Management Committee (subject,
where applicable, to the provisions of Section 3.5) or when such expenditures do
not exceed that permitted under the approved annual Budget by more than ten
percent (10%) for the line item or items in question (based on a Budget format
similar to that historically used by the Partnership) or $50,000. Upon execution
of this Agreement, the Project Leader shall have authority to make expenditures
in fiscal year 1998 in accordance with the existing Budget of the Partnership
for fiscal year 1997 until a new Budget is approved.
(g) The Project Leader shall submit to the Partners for approval an annual
Budget setting forth on a monthly basis the anticipated costs to be incurred in
connection with the Partnership (including the NOARK Related Entities),
including without limitation the cost of operating and field personnel providing
day-to-day operations of the System, and the anticipated capital costs to be
incurred in connection with the System based on a Budget format similar to that
historically used by the Partnership. A proposed Budget shall be provided to the
Partners as soon as practicable following execution of this Agreement for the
period covering calendar year 1998 and by December 1st for each year thereafter
during the term of this Agreement. Such Budgets shall be subject to the approval
requirements of Section 3.5. In the event Partner approval of any Budget as
required by Section 3.5 is not obtained by the commencement of the year to which
such Budget applies, the most recently approved Budget shall be utilized until
such new Budget is approved.
(h) The Project Leader may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Project Leader may consult with
legal counsel, accountants, appraisers, management consultants, investment
bankers and other consultants and advisers selected by it and any act taken or
omitted in reliance upon an opinion including, without limitation, a written
opinion of counsel (who shall be regular or special counsel to the Partnership)
acceptable to the Project Leader of such persons as to matters that the Project
Leader
17
reasonably believes to be within such person's professional or expert competence
shall be conclusively presumed to have been done or omitted in good faith and in
accordance with such opinion.
(i) The Project Leader shall have the right, in respect of any of his
powers or duties hereunder, to delegate same to any employee of the Partnership
or, to any Partner. Each such Person shall have full power and authority to do
and perform each and every act and duty that is so delegated to such Person.
(j) In the event the Project Leader incurs expenditures in emergency
situations to safeguard life or property or to maintain the operational
integrity of the System at design capacity, the Project Leader shall notify the
Management Committee and the Partners of the emergency situation as soon as
reasonably possible after any such emergency situation. Such costs so incurred
by the Project Leader shall not require the prior approval of the Management
Committee or the Partners; provided, however, that any expenditures or
transactions undertaken shall involve terms that are standard and customary in
the industry and do not expose or subject the Partnership to any inordinate,
unusual or unreasonable risks, liabilities or obligations given the facts and
circumstances which exist at the time of the Project Leader committing to any
such expenditures or transactions. The Partners acknowledge that the facts and
circumstances of an emergency situation may require terms, expenditures or
transactions which under normal situations would be different.
3.7 Delegation
(a) The Management Committee shall have the authority to delegate any of
its duties and authority to any Partner, the Project Leader, or, subject to
Section 3.5, a committee. Any such delegation shall be in writing and shall be
revocable at any time by the Management Committee.
(b) The Partners shall make available to the Partnership (including any
NOARK Related Entity) executive, administrative and operating personnel with the
appropriate backgrounds and experience to provide such services as the
Management Committee may reasonably delegate for them to provide and to make
available to the Management Committee sufficient time of such executives,
administrative and operating personnel to promptly, faithfully and
professionally provide such services. A Partner may utilize the personnel and
resources of not only itself, but also of its Affiliates and other Persons in
the performance of such services.
(c) The Partners shall be reimbursed by the Partnership in accordance with
the Accounting Procedures attached hereto as Exhibit B, for all direct and
indirect costs and expenses incurred in providing services delegated by the
Management Committee to be provided by them.
(d) Subject to the provisions of this Section 3.7, the Management
Committee shall be deemed to have delegated i) to SWPL the continued performance
of the accounting services for the Partnership and the performance of field
operations and field operations support services SWPL has
18
historically provided to the Partnership in Arkansas as well as the performance
of field operations and field operations support services in those areas where
the facilities of NOARK and Ozark are in close proximity for which the Partners
agree SWPL should provide such services and ii) to EAPC the performance of
operations and operations support services to provide support, direction and
assistance to the Project Leader in the operation of the Partnership (including
the NOARK Related Entities) and the System.
(e) Subject to Section 3.5, the Management Committee may designate one or
more committees (including, specifically, an executive committee), each of which
shall be comprised of one or more of its members, and may designate one or more
of its members as alternate members of any committee, who may, subject to any
limitations imposed by the Management Committee, replace absent or disqualified
members at any meeting of that committee. Any such committee, to the extent
provided in such resolution, shall have and may exercise the authority delegated
to it by the Management Committee in the management of the business and affairs
of the Partnership, subject to the limitations set forth in the Act and this
Agreement.
3.8 Officers.
(a) Except for the chief executive officer, who shall be the Project
Leader, the Management Committee may appoint such officers and agents as it
deems necessary or appropriate, who shall be appointed for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Management Committee. Any two or more offices may be held by the
same person.
(b) Any officer, agent or member of a committee elected or appointed by
the Management Committee may be removed by the Management Committee at any time
with or without cause.
3.9 Claims. The Project Leader shall be responsible for overseeing the
settlement or litigation and defending of any and all claims, damages, or causes
of action in favor of any one other than the Partners arising out of the
Operation of the System (as defined in the Accounting Procedures) which are not
covered by insurance; provided, that Project Leader shall report to the
Management Committee from time to time with respect to such claims, damages or
causes of action and the disposition thereof. The decision to settle or to
litigate and defend against any such claim, demand or cause of action may be
made by Project Leader in accordance with its best judgment and discretion when
the amount involved is $50,000 or less, provided, however, that if the aggregate
of the amounts payable by the Partnership in connection with any final judgment
against the Partnership and/or the settlement of any claim or claims against the
Partnership during any fiscal year exceeds $250,000, any subsequent settlements
shall be effected during such fiscal year only with the approval
19
of a SuperMajority in Interest of the Partners. Decisions to settle or to defend
and litigate (i) any single claim which involves any amount in excess of
$50,000, (ii) any claim which is commenced against the Partnership during any
fiscal year when the aggregate of all claims commenced against the Partnership
during the same fiscal year have involved amounts in excess of $250,000, and
(iii) any claim in which the Project Leader is named as a defendant or
respondent or has an interest in the claim or the proceedings which is adverse
to the Partnership, shall be made only with the approval of a SuperMajority in
Interest of the Partners.
3.10 Disputed Charges. Within the time provided in the Accounting
Procedures and regardless of whether the applicable Budget has been exceeded,
the Management Committee or any Partner may take written exception to all or any
portion of any bill or statement rendered by a Partner to the Partnership on the
ground that the same was not a reasonable expense or expenditure incurred in
good faith in connection with the Operation of the System (as such term is
defined in the Accounting Procedures). NOARK shall nevertheless pay in full when
due the amount of all statements submitted by a Partner. Thereafter, at its
discretion on the vote of Partners representing at least 70% of the Partnership
Interests remaining after excluding the Partner's Partnership Interest whose
bill or statement is in dispute, the Management Committee may submit the dispute
to the dispute resolution procedures set forth in Article XIII, and, in such
event the Partners agree to utilize such procedures in resolving such dispute.
If the amount as to which such written exception is taken or any part thereof is
ultimately determined in arbitration not to be a reasonable expense or
expenditure incurred in good faith in connection with the Operation of the
System, such amount or portion thereof (as the case may be) shall be refunded to
NOARK together with interest thereon at one hundred basis points over the prime
rate from time to time charged by Citibank, N.A., New York, N.Y. to responsible
commercial and industrial borrowers, not in excess of the maximum lawful rate,
for the period from the date of payment by NOARK to the date of refund.
ARTICLE IV
FINANCING OF THE PARTNERSHIP
4.1 Existing Capital Accounts Balances. Schedule 4.1 hereto sets forth the
Capital Accounts of the Partners as of the date of this Agreement which have
been agreed to by the Partners.
4.2 Capital Contributions.
(a) In order to meet the funding requirements of the Partnership
(including any NOARK Related Entity), the Management Committee shall have
authority to make mandatory capital calls on the Partners for cash contributions
in amounts that the Management Committee deems necessary or advisable to fund
capital and operational needs of the Partnership (including any NOARK Related
Entity). With respect to each mandatory capital call, each Partner shall within
thirty (30) days of
20
receiving such written notice contribute to the Partnership in cash that portion
of the total call equal to its Partnership Percentage.
(b) Notwithstanding the language of Section 4.2(a) above, the Management
Committee shall not have authority to issue mandatory capital calls to fund a
proposed Expansion of the System, other than Expansions included within an
approved Budget. Any such Expansion shall be subject to the consent of a
SuperMajority in Interest of the Partners; provided, that, if such consent is
not obtained within thirty (30) days of the submittal to the Partners of a
proposal for such an Expansion (which consent of any Partner may be conditioned
upon approval of such Partner's board of directors to be obtained (i.e. approved
or rejected) within sixty (60) days of the submittal to the Partners of the
proposed Expansion), but one of the Partners (the "Proposing Partner") desires
to pursue such Expansion, the Proposing Partner shall contribute to the capital
of the Partnership all of the funds necessary to finance such Expansion (such
contribution a "Special Capital Contribution") and shall following such
contribution receive, in addition to any other distributions provided for in
this Agreement, an additional cash distribution equal to all of the additional
net operating income attributable to the Expansion (which shall not include any
revenues realized from the replacement of volumes being transported on the
System prior to the Expansion) until the Proposing Partner has received an
amount equal to 200% of the Special Capital Contribution made by the Proposing
Partner.
(c) The Partners agree that the Existing Loans, including applicable
interest, shall be repaid as follows: (i) sixty percent (60%) of the Existing
Loans, including applicable interest, shall be repaid out of any amounts
otherwise distributable to SWPL, before taking into account debt service on the
Existing Loans, under this Agreement and (ii) forty percent (40%) of the
Existing Loans, including applicable interest, shall be repaid out of any
amounts otherwise distributable to EAPC, before taking into account debt service
on the Existing Loans, under this Agreement. If such amounts are insufficient to
pay a Partner's percentage share (i.e. 60% or 40% as set forth above) of the
debt service on the Existing Loans, including applicable interest, in accordance
with their terms, then such Partner shall be responsible to contribute to the
capital of the Partnership amounts sufficient to pay its percentage share (i.e.
60% or 40% as set forth above) of the debt service on the Existing Loans,
including applicable interest, and shall do so upon notice from the Project
Leader. Such Capital Contributions by the Partners shall not alter the
Partnership Percentages of the Partners. Default by a Partner in the making of
such Capital Contributions shall cause it to be deemed a Delinquent Partner
subject to the provisions of Section 4.3 hereof.
(d) Notwithstanding anything to the contrary in Section 4.2(c) above or
elsewhere in this Agreement, it is understood and agreed that the terms of any
Existing Loans may in the future (but do not currently) provide that the
amortization of the principal amount thereof shall be borne or allocated in a
manner different from the percentages set forth in Section 4.2(c) or any Partner
may direct the Project Leader to apply amounts of Partnership cash otherwise
distributable to such Partner (except amounts to be paid to other Partners
pursuant to the other provisions of this Agreement) to the repayment or
prepayment of the principal amount of the Existing Loans in excess of the
amounts
21
required to be repaid under the terms of the Existing Loans, provided such
Partner bears all costs and penalties of doing so. Consequently, a Partner may
thereby pay or bear more than its attributable percentage (i.e. 60% or 40%) of
the principal amount of the Existing Loans to be repaid. In such event, the
percentages of the then outstanding principal amount of the Existing Loans
payable out of the distributable amounts attributable to the Partners set forth
in Section 4.2(c) shall be adjusted as appropriate to reflect the resulting
percentage of the aggregate outstanding principal amount of the Existing Loans
then attributable to each Partner.
4.3 Failure to Contribute. If any Partner fails to make a Capital
Contribution as required under Section 4.2(a) or (c) above, the Partnership may,
in addition to the other rights and remedies the Partnership may have under the
Act or applicable law, take such enforcement action (including, the commencement
and prosecution of court proceedings) against such Partner as the Management
Committee considers appropriate and such Partner shall be deemed to be
delinquent ("Delinquent Partner"). Moreover, each remaining Partner who is not
delinquent shall have the right, but not the obligation, to contribute that
portion of the amount defaulted by the Delinquent Partner equal to such
remaining Partner's Partnership Percentage expressed as a percentage of the
Partnership Percentage of all such remaining Partners who elect to contribute
their applicable portion of the defaulted Capital Contribution. In such an
event, the Partner(s) who contributes on behalf of the Delinquent Partner
("Contributing Partner") will be entitled to a priority distribution out of the
first cash distributions which would otherwise be distributable to the
Delinquent Partner equal to three hundred percent (300%) of the amount which the
Contributing Partner contributed on behalf of the Delinquent Partner. Following
satisfaction of this priority distribution, and any other priority distributions
provided for in this Agreement, distributions would be made in accordance with
Section 5.7 hereof. The amount contributed on behalf of a Delinquent Partner
shall be secured by such Delinquent Partner's interest in the Partnership. Each
Partner who may hereafter be deemed delinquent hereby grants to each
Contributing Partner, a security interest in such Delinquent Partner's
Partnership Interest.
4.4 Capital Accounts. A separate Capital Account shall be established and
maintained by the Partnership for each Partner in the manner described in the
definition of the term "Capital Account" in Article I hereof.
4.5 Loans by Partners. No Partner shall be required to make loans to the
Partnership. Loans may be made, however, with the approval of the Management
Committee, by any Partner to the Partnership and such loans shall not be
considered contributions to the capital of the Partnership. To the extent loans
are made by any Partner to the Partnership, they shall be made on terms, as to
interest rates and other finance charges, as are comparable to amounts that are
charged by unrelated banks and other financial institutions on comparable loans
for the same purpose.
4.6 Interest. No interest shall be paid to any Partner on the initial or
any subsequent Capital Contribution to the Partnership.
22
4.7 Time for Return of Contributions. No Partner shall be entitled to
compel the return of its Capital Contribution. Upon the full and complete
winding up and liquidation of the business and affairs of the Partnership, the
Partners shall be entitled to distributions as set forth in Article X.
4.8 Limited Liability of the Limited Partners. Notwithstanding anything to
the contrary contained herein, the liability of a Limited Partner for any of the
debts, losses or obligations of the Partnership shall be limited to the Limited
Partner's Capital Contributions. No Limited Partner shall have any personal
liability whatsoever, whether to the Partnership or any third party, for the
debts of the Partnership or any of its losses.
4.9 Benefits of Agreement. Nothing in this Agreement, and, without
limiting the generality of the foregoing, in this Article IV, expressed or
implied, is intended or shall be construed to give to any creditor of the
Partnership or any creditor of any Partner or of any other Person, other than
the Partners and the Partnership, any legal or equitable right, remedy or claim
under or in respect to this Agreement or any covenant, condition or provisions
herein contained, and such provisions are and shall be held to be for the sole
and exclusive benefit of the Partners and the Partnership.
ARTICLE V
CAPITAL AND INCOME ALLOCATIONS AND DISTRIBUTIONS
5.1 Allocations Controlling for Capital Account Purpose. The Partners
agree that all items of Partnership income, gain, loss and deduction realized by
the Partnership from its operation or upon the sale or other disposition of its
assets shall be credited or charged to the Capital Accounts of the Partners and
further, to the extent allowed by the law, among the Partners for Federal income
tax purposes in accordance with Sections 5.2 through 5.6. The allocation of
Partnership income, gain, loss and deduction to a Partner whose interest in the
Partnership terminates or to a newly admitted Partner shall be based upon an
actual closing of the books of the Partnership for the period ending on the date
of such termination or admission except as otherwise determined by the
Management Committee. In addition, upon the closing of the Ozark Acquisition,
there shall be an actual closing of the books of the Partnership for the period
ending on the date of the closing of the Ozark Acquisition, when the Partnership
Percentages will change as specified in the definition of Partnership
Percentage. Further, upon the Inservice Expansion Date, there shall be an actual
closing of the books of the Partnership for the period ending on the date of the
Inservice Expansion Date, when the Partnership Percentages will change as
specified in the definition of Partnership Percentages. For purposes of making
the allocations under this Agreement for the periods ending on the Ozark
Acquisition and the Inservice Expansion Date, the allocation of Partnership
income, gain, loss and deduction to a Partner shall be based upon such dates.
5.2 General Allocation of Profits and Losses. After giving effect to the
special allocations set forth in Sections 5.3 through 5.6 hereof, the Profits
and Losses for any fiscal year, or portion thereof, as applicable, shall be
allocated to the Partners in accordance with the Partnership Percentages of the
respective Partners.
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5.3 Special Interest Expense. The Partnership interest expense deductions
incurred with regard to the Existing Loans as referenced in Section 4.2(c) shall
be allocated to Partners as follows:
SWPL 60%
EAPC 40%
In the event the percentages of the outstanding principal amounts of the
Existing Loans payable out of the distributable amounts attributable to each
Partner are adjusted pursuant to Section 4.2(d), the foregoing percentages shall
be subject to adjustment to reflect the same percentages as the percentages
established pursuant to Section 4.2(d).
5.4 Preferential Allocations.
(a) During each fiscal year of the period commencing on the Inservice
Expansion Date and ending on December 31, 2009 (the "Special Allocation Period")
SWPL shall receive a special allocation of Partnership gross revenues (items of
gross income and gain) in accordance with the formula set forth below. For
purposes of this Section 5.4(a), a fiscal year shall be a calendar year except
that the first fiscal year of the above described period shall commence on the
Inservice Expansion Date and end on December 31 of the calendar year in which
the Inservice Expansion Date occurs.
Special Revenue Allocation = Base Amount - Increased Volume
Amount, where:
(1) Base Amount = for each fiscal year during the Special
Allocation Period, the amount specified on Schedule 5.4(a) for
such fiscal year
(2) Increased Volume Amount =
(a) the product of (i) the average daily quantity of gas (in
MMBtu's) moved on the System during the fiscal year less
the Firm Quantities (as defined below) for such year
(but not less than 244,000 MMBtu's per day less the Firm
Quantities), multiplied by (ii) 25% of the average
margin (per MMBtu) realized by (x) EIT (which, upon the
Inservice Expansion Date, will be a NOARK Related Entity
and will own the integrated interstate transmission
facilities of Ozark and the Partnership), (y) NES L.L.C.
(as defined in the Omnibus Agreement) the average margin
of which may be negative, and (z) OGG L.L.C. (as defined
in the Omnibus Agreement) but only to the extent of the
Searcy Gathering Assets (as defined in the Omnibus
Agreement) and the average margin realized from such
assets as they will exist on the date of their
contribution to the System (the entities and assets
24
specified in items (x), (y) and (z) herein collectively
referred to as the "Preferential Allocation Group") from
the movement of such average daily quantity of gas on
the System as the System exists on the Inservice
Expansion Date, and as it may be modified by only the
contribution of the Searcy Gathering Assets (as defined
in the Omnibus Agreement) as they exist on the date of
their contribution to the Partnership, whether from
transportation revenues or sales revenues (which average
margin shall not be less than $.16 per MMBtu),
multiplied by (iii) the number of days in such fiscal
year minus
(b) the product of (i) 244,000 MMBtu's per day less the Firm
Quantities for such fiscal year multiplied by (ii) $.04
per MMBtu, multiplied by (iii) the number of days in
such fiscal year.
(b) For purposes of Section 5.4(a) above, the following shall apply:
(1) The calculation of the Increased Volume Amount shall not
include quantities of gas (in MMBtu's) received from supply
sources in existence on January 1, 1998 located behind those
supply points identified on Schedule 5.4(b), or average
margins attributable to those quantities.
(2) Firm Quantities shall mean the average daily quantity of gas
(in MMBtu's) moved on the System under Firm Business
Agreements (as hereinafter defined) in any fiscal year.
(3) For purposes of the foregoing, Firm Business Agreements shall
mean firm gas transportation or sales agreements having a
primary term of one (1) year or more between any member of the
Preferential Allocation Group and customers (such customers
being other than Affiliates which are NOARK Related Entities).
(4) For purposes of this Section 5.4, the "average margin"
realized by the Preferential Allocation Group shall mean (i)
in the case of transportation or gathering revenues, the
average gross revenues received (per MMBtu) from shippers for
the movement of gas on the System (including any demand
charges received under firm transportation agreements which
are not Firm Business Agreements), and (ii) in the case of
sales revenues, the average gross revenues received (per
MMBtu) from the sale of gas after subtracting therefrom the
average costs (per MMBtu) directly incurred in making such
sales, including without limitation gas costs, gathering
costs, transportation costs and any related imbalance
penalties. In addition, for purposes of calculating the
Special Revenue Allocation, in the event the Preferential
25
Allocation Group engages in multiple transactions involving
the same gas, such transactions shall be considered a single
transaction in determining the "average daily quantities" from
such transaction and the "average margin" realized from such
transaction.
(c) The Special Revenue Allocation for any fiscal year shall be determined
within sixty (60) days following the end of the fiscal year to which such
Special Revenue Allocation is applicable, but shall be effective for the fiscal
year in which the revenues were received. In no event will the Special Revenue
Allocation be less than zero.
(d) Schedule 5.4(d) attached hereto, sets forth several examples of the
calculation of the Special Revenue Allocation.
5.5 Special Profits Allocations.
(a) After making the special allocation of Partnership gross revenues
(items of gross income and gain) pursuant to Section 5.4 hereof and the special
allocation of Partnership deductions pursuant to Section 5.3 hereof, the
Partnership Profits shall be specially allocated to the Partners which have
received additional cash distributions in the current or prior years related to
contributions by Contributing Partners pursuant to Section 4.3 above in the
following manner and amount: Partnership Profits otherwise allocable to the
Delinquent Partner (i.e. Profits which would have been allocated to the
Delinquent Partner if this Section 5.5(a) did not exist) shall be allocated to
the Contributing Partners until the cumulative amount of Partnership Profits
allocated pursuant to this Section 5.5(a) equals the cumulative amount of the
cash distributions otherwise distributable to the Delinquent Partner, but which
are made to the Contributing Partners as provided in Section 4.3.
(b) After making the special allocation of Partnership gross revenues
(items of gross income and gain) pursuant to Section 5.4 hereof, the special
allocation of Partnership deductions pursuant to Section 5.3 hereof and the
special allocation of Partnership Profits pursuant to Section 5.5(a) hereof, the
Partnership Profits shall be specially allocated to the Partners which have
received additional cash distributions in the current or prior years related to
an Expansion pursuant to Section 4.2(b) above until the cumulative amount of
Partnership Profits allocated pursuant to this Section 5.5(b) equals the
cumulative amount of such additional cash distributions received by the
respective Partners.
26
5.6 Other Allocation Rules.
(a) Section 754 Adjustments. To the extent an adjustment to the adjusted
tax basis of any Partnership asset pursuant to Code Section 734(b) or Code
Section 743(b) is required, pursuant to Treas. Reg. Section 1.704-1(b)(2)(iv)
(m), to be taken into account in determining Capital Accounts, the amount of
such adjustment shall increase the basis of the asset or loss (if the adjustment
decreases such basis) and such gain or loss shall be specially allocated to the
Partners in a manner consistent with the manner in which their Capital Accounts
are required to be adjusted pursuant to such section.
(b) Code Section 704(c) Tax Allocations. In accordance with Code Section
704(c) and the Regulations thereunder, income, gain, loss and deduction with
respect to any property contributed to the capital of the Partnership shall,
solely for tax purposes, be allocated among the General Partners and Limited
Partners so as to take account of any variation between the adjusted basis of
such property to the Partnership for Federal tax purposes and its initial Gross
Asset Value using the "traditional method with curative allocations" as set
forth in Treas. Reg. Section 1.704-3(c). In the event the Gross Asset Value of
any Partnership asset is adjusted as required by the definition of "Gross Asset
Value" as contained in this Agreement, subsequent allocations of income, gain,
loss and deduction with respect to such asset shall take account of any
variation between the adjusted basis of such asset for Federal income tax
purposes and its Gross Asset Value in the same manner as under Code Section
704(c) and the Regulations thereunder. Any elections or other decisions relating
to such allocations shall be made by the General Partners in any manner that
reasonably reflects the purpose and intention of this Agreement. Allocations
pursuant to this Section 5.6(b) are solely for purposes of federal, state, and
local income taxes and shall not affect, or in any way be taken into account in
computing, any Partner's Capital Account or share of Profits, Losses, other
items, or distributions pursuant to any provision of this Agreement.
5.7 Cash Distributions. Except as otherwise provided in this Agreement,
the Management Committee in its sole discretion shall have the authority to
cause the Partnership to allocate and distribute cash or other property to the
Partners monthly on a basis in accordance with this Agreement. All distributions
shall be made in accordance with the Partnership Percentages of the respective
Partners, net of each Partner's required share of payments on the Existing
Loans, including interest thereon, as provided in Section 4.2(c), except for i)
distributions related to the funding of Expansions under Section 4.2(b), ii)
distributions under Section 4.3 and iii) distributions in liquidation pursuant
to Article X. It shall be a policy of the Partnership to distribute the maximum
amount of cash available after taking into account anticipated future sources of
cash and the working capital and cash requirements to meet the current and
anticipated future obligations of the Partnership.
5.8 Amounts Withheld. All amounts withheld pursuant to the Code or any
provision of any state or local tax law with respect to any payment or
distribution to the Partnership or the Partners shall be treated as distributed
to the Partners pursuant to Section 5.7 for all purposes under
27
this Agreement. The Management Committee shall allocate such amounts among the
Partners in a manner that is consistent with Article V hereof and applicable
law.
5.9 Reimbursements. The Project Leader and any Partner performing services
or providing goods to the partnership, in accordance with the provisions of this
Agreement, shall be reimbursed by the Partnership for all reasonable direct and
indirect costs and expenses incurred on behalf of the Partnership in the
performance of their duties hereunder in accordance with the Accounting
Procedures attached hereto as Exhibit B.
ARTICLE VI
RELATIONS OF THE PARTNERS
6.1 Restricted Transactions.
(a) Except as set forth in Section 6.1(a)(i) below, during the period of
time that a person is a Partner, no Partner shall, nor shall it to the extent
possible permit its Affiliates to, engage in any transactions involving,
directly or indirectly any business activity which is within the scope of the
business activities of any NOARK Related Entity as established by the Partners
pursuant to Section 3.5(f) (a "Restricted Transaction") without first giving the
Partnership a right of first refusal in accordance with the terms set forth in
Section 6.1(b) below with respect to such Restricted Transaction. Any such
business activities of any NOARK Related Entity so established by the Partners
shall be restricted to business activities on the System.
(i) A person who is a Partner, or who is an Affiliate of a Partner,
shall be permitted to (u) conduct gas marketing activities without restriction,
(v) continue to own and/or operate facilities for the gathering, transportation,
processing, compression or storage of natural gas or liquid hydrocarbons which
they owned and/or operated on December 31, 1997 (the "Existing Facilities"), (w)
continue to conduct transactions involving such Existing Facilities, (x) expand
and extend such facilities (by construction, purchase or otherwise) and
transactions involving such facilities (y) expand and/or extend those businesses
or operations and (z) conduct any other business activities which are not
conducted on the System. It is the intent of this Section (6)(a)(i) to permit
Partners and their Affiliates to continue to engage in those businesses and
operations (in which they were engaged on December 31, 1997) and to expand
and/or extend those businesses and operations. Any projects or businesses,
however, which do not involve such businesses or operations as they may be so
expanded or extended and which would otherwise meet the requirements of Section
6.1(a), are to be offered to the Partnership under Section 6.1(b).
(b) Should any Partner or its Affiliate desire to engage in a Restricted
Transaction, such Partner (the "Submitting Partner") shall submit to the
Partnership and to each Partner written notice (a "Submission") of the
Restricted Transaction, including a copy of any contract or agreement setting
28
forth the terms of the Restricted Transaction. The Partnership (whether itself
or through a NOARK Related Entity) acting upon the unanimous approval of all the
Partners except the Submitting Partner (who shall have no right to vote on the
Restricted Transaction) shall then have sixty (60) days from the delivery to it
of the Submission in which to elect to pursue the Restricted Transaction on the
terms set forth in the Submission. The Partnership shall evidence its election
to pursue the Restricted Transaction by giving written notice of such election
to the Submitting Partner within such sixty (60) day period, and the Submitting
Partner shall no longer have any separate interest in the Restricted Transaction
but shall fully cooperate in assisting the Partnership to pursue the Restricted
Transaction. If the Partnership does not elect in a timely manner to pursue the
Restricted Transaction, then the Partnership shall be deemed to have rejected
the Restricted Transaction and the Submitting Partner shall be free to pursue
the Restricted Transaction for its own separate account; provided, that, the
terms upon which the Submitting Partner shall pursue the Restricted Transaction
shall be the same as those set forth in the Submission to the Partnership. If
the terms of the Restricted Transaction shall vary from those set forth in the
Submission, then the Submitting Partner shall be required to commence again the
right of first refusal process by submitting a new Submission setting forth the
revised terms to the Partnership and the Partners and the Partnership shall have
the right to accept or reject the Restricted Transaction in accordance with the
procedure set forth in this Section 6.1 (b).
(c) Subject to the restrictions contained in Section 6.1(a), (i) the
Partners recognize that each of the Partners, directly or through its respective
Affiliates, may be currently engaged in numerous businesses in the gas industry
including, without limitation, buying, selling, gathering, transporting,
processing, compressing or storing natural gas or liquid hydrocarbons for
profit; and (ii) each Partner agrees that each other Partner may continue such
activities, may form new Affiliates to engage in such activities, and may expand
the present scope of such activities, in each case irrespective of whether such
be deemed in competition with the business and activities of the Partnership,
without in any manner being obligated to disclose such activities to the
Partnership or the other Partners, or to permit the Partnership or the Partners
to participate therein, and without any liability to the Partnership or the
Partners for breach of any duty arising out of such other Partner's position as
a Partner in the Partnership.
6.2 Exculpation from Liability.
(a) The Project Leader, shall have no liability whatsoever to the
Partnership (including any NOARK Related Entity) or to any Partner for loss
caused by any act or by failure to do any act if the loss suffered by the
Partnership (including any NOARK Related Entity) or any Partner arises out of an
action taken, or not taken, by the Project Leader in the course of the
Partnership's (including any NOARK Related Entity) business in good faith and
not contrary to the terms of this Agreement even if such action or failure to
act constitutes negligence.
(b) Neither the Management Committee, nor any member thereof (other than
the Project Leader to whom Section 6.2(a) applies), shall have any liability
whatsoever to the Partnership
29
(including any NOARK Related Entity) or to any Partner for loss caused by any
act or by failure to do any act if the loss suffered by the Partnership
(including any NOARK Related Entity) or any Partner arises out of an action
taken, or not taken by the Management Committee, or a member thereof in the
course of the Partnership's (including any NOARK Related Entity) business in
good faith and not contrary to the terms of this Agreement even if such action
or failure to act constitute negligence; provided, that, this shall not apply
where the Person's action or failure to act constitute willful misconduct or
gross negligence.
6.3 Indemnification.
(a) To the fullest extent permitted by law but subject to the limitations
expressly provided in this Agreement, each Indemnitee shall be indemnified and
held harmless by the Partnership (including any NOARK Related Entity) from and
against any and all losses, claims, damages, liabilities (joint or several),
expenses (including without limitation, reasonable legal fees and expenses),
judgments, fines, settlements and other amounts arising from any and all claims,
demands, actions, suits or proceedings, whether civil, criminal, administrative
or investigative (other than claims by or on behalf of the Partnership,
including any NOARK Related Entity), in which any Indemnitee may be involved, or
is threatened to be involved, as a party or otherwise, by reason of its status
as an Indemnitee arising out of or relating to the performance of this Agreement
or its actions (or failures to act) with respect to the business of the
Partnership (including any NOARK Related Entity); provided, that in each case
the Indemnitee acted in good faith, in a manner which such Indemnitee believed
to be in, or not opposed to, the best interests of the Partnership (including
any NOARK Related Entity) and, with respect to any criminal proceeding, had no
reasonable cause to believe its conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
the Indemnitee acted in a manner contrary to that specified above.
(b) To the fullest extent permitted by law, expenses (including without
limitation, reasonable legal fees and expenses) incurred by an Indemnitee in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Partnership (including any NOARK Related Entity) prior
to the final disposition of such claim, demand, action, suit or proceeding upon
receipt by the Partnership of an undertaking by or on behalf of the Indemnitee
to repay such amount if it shall be determined that the Indemnitee is not
entitled to be indemnified as authorized in this Section 6.3.
(c) The indemnification provided by this Section 6.3 shall be in addition
to any other rights to which an Indemnitee may be entitled under this Agreement,
as a matter of law or otherwise, as to actions in the Indemnitees' capacity as
an Indemnitee and shall continue as to an Indemnitee who has ceased to serve in
such capacity as to actions during its capacity as an Indemnitee.
(d) The Partnership shall purchase and maintain insurance on the
Partnership (including the NOARK Related Entities) and the assets of the
Partnership (including any NOARK Related
30
Entities). Such insurance shall at a minimum include the insurance specified on
Schedule 6.3(d) attached hereto. The Partnership may purchase and maintain
insurance (in such amounts and for such purposes as the Partnership shall
determine), on behalf of the Partners, the Project Leader and such other Persons
as the Partnership shall determine, against any liability that may be asserted
against or expense that may be incurred by any such Person in connection with
the Partnership's activities, whether or not the Partnership would have the
power to indemnify such Person against such liabilities under the provisions of
this Agreement.
(e) In no event may an Indemnitee subject a Limited Partner to personal
liability by reason of the indemnification provisions set forth in this
Agreement.
(f) An Indemnitee shall not be denied indemnification in whole or in part
under this Section 6.3 because the Indemnitee had an interest in the transaction
with respect to which the indemnification applies if the transaction was
otherwise permitted by the terms of this Agreement.
(g) The provisions of this Section 6.3 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons.
(h) No amendment, modification or repeal of this Section 6.3 or any other
provision hereof shall in any manner terminate, reduce or impair the right of
any Indemnitee, or former Indemnitee, to be indemnified by the Partnership, nor
the obligation of the Partnership to indemnify any such Indemnitee under and in
accordance with the provisions of this Section 6.3 as in effect immediately
prior to such amendment, modification or repeal with respect to claims arising
from or relating to matters occurring, in whole or in part, prior to such
amendment modification or repeal, regardless of when such claims may arise or be
asserted.
6.4 Title to Partnership Assets. Title to assets of the Partnership
(including any NOARK Related Entity), 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, individually or collectively, shall have any
ownership interest in such assets of the Partnership or any portion thereof.
Title to any or all of the assets of the Partnership (including any NOARK
Related Entity) may be held in the name of the Partnership (including any NOARK
Related Entity), or one or more nominees as the Management Committee may
determine under the terms of a nominee agreement the form of which shall be
approved by a SuperMajority in Interest of the Partners. All assets of the
Partnership (including any NOARK Related Entity) shall be recorded as the
property of the Partnership in its books and records, irrespective of the name
in which record title to such assets are held.
31
ARTICLE VII
ASSIGNABILITY OF PARTNERS' INTERESTS
7.1 Restrictions on Transfer of Partner's Interest. Except as set forth in
Section 7.7, no Partner may Transfer all or a portion of its Partnership
Interest (the "Transferor"), unless the Transferor and transferee (the
"Transferee"), comply with the provisions of Section 7.2. No portion of a
Partner's right to receive its allocable share of income and losses and
distributions of the Partnership may be Transferred without the Transfer of the
same portion of a Partner's Partnership Interest. Failure to comply with the
provisions of this Article VII shall render the purported Transfer null and void
and of no force or effect for any purpose.
7.2 Right of First Refusal. At any time, a Transferor may offer to sell
for cash all or a portion of its Partnership Interest (but any such portion may
not be less than ten percent (10 %) of the total Partnership Interests)to any or
all of the other Partner(s) by delivering to them a written offer (the "Sales
Offer") specifically referring to this Section 7.2, stating the Transferor's
desire to sell, specifying the portion of such Partnership Interest to which the
Sales Offer applies, stating that such portion is to be sold in its entirety and
setting forth the cash purchase price. Within thirty (30) days following the
receipt of the Sales Offer, each other Partner may elect to accept the Sales
Offer at the purchase price set forth therein. Such acceptance may be
conditioned upon approval by the board of directors of the accepting Partner to
be obtained within sixty (60) days following receipt of the Sales Offer by the
accepting Partner. If more than one of the other Partners elect to accept the
Sales Offer, the purchase shall be made pro rata in accordance with the
accepting Partners' respective Partnership Interests. Payment for such
Partnership Interest shall be made within thirty (30) days after the final date
on which a Partner elects to accept the Sales Offer; provided, however, if any
waiting periods are imposed by applicable law, payment shall, if necessary, be
deferred to the first business day occurring after the expiration of the last
day of such waiting period. In the event that the Partners do not elect to
acquire or do not acquire the entire portion of the Partnership Interest
specified in a Sales Offer within the time periods referred to above, the
Transferor shall be entitled to Transfer to a third party (including an
Affiliate of the Transferor) the Partnership Interest stated in the Sales Offer
for a consideration in cash or other property having equal or greater value than
the cash purchase price stated in the Sales Offer during the six (6) month
period commencing with the day following the expiration of the 60-day time
period referred to above. If the consideration is other than all cash, the
Transferor shall provide the other Partners with the report of a qualified
appraiser concluding that the total value of the consideration to be paid for
the Partnership Interest is equal to or exceeds the value of the cash purchase
price stated in the Sales Offer. Prior to any Transfer becoming effective, the
Transferor shall provide written notice to all of the Partners and shall settle
all unpaid accounts with the Partnership.
7.3 Opinion of Counsel. The Transferor shall deliver to the Project Leader
evidence satisfactory to the Project Leader (including, if requested by the
Project Leader an opinion of counsel in form and substance satisfactory to
counsel to the Partnership), that:
(a) such Transfer and any offerings made in connection therewith are in
compliance with applicable federal and state securities laws; and
32
(b) the Transfer will comply with all applicable rules and regulations of
government authorities.
(c) such Transfer and offerings will not cause the Partnership to be a
publicly traded partnership within the meaning of Section 7704 of the Code.
7.4 Substituted Partner. A Transferee shall become a Substituted Partner
of the Partnership in the event a SuperMajority in Interest of the Partners
consent in writing to the Transferee becoming a Substituted Partner or if the
Transferor and Transferee have complied with all of the requirements of this
Article VII and:
(a) The Transferor states its intention in writing to have the Transferee
become a Substituted Partner as concerns the portion of its Partnership Interest
to be Transferred;
(b) The Transferee agrees to pay any filing fees, reasonable counsel fees,
and other reasonable expenses of the Partnership in connection with its becoming
a Substituted Partner;
(c) The Transferee agrees in writing to be bound by all of the terms and
provisions of the Agreement and any other document or instrument executed by or
otherwise binding upon the Partners as if an original party to the Agreement or
other such document or instrument and to assume all the duties, liabilities and
obligations of the Transferor in respect of such Partnership Interest, provided,
that, the Transferor shall not be released from any liabilities of or to the
Partnership arising prior to the date of the Transfer; and
(d) The Transferee executes a statement satisfactory to the Project Leader
that it is acquiring such Partnership Interest for its own account for
investment and not with a view to the distribution or resale thereof.
7.5 Recognition of Transferee as Partner. Upon the effective Transfer of a
Partnership Interest, compliance with the other provisions of this Article VII,
and admission of the Transferee as a Substituted Partner, the Project Leader
shall, to the extent required by law execute, file and record with the
appropriate governmental agencies such documents as are required to accomplish
the substitution of the Transferee as a Substituted Partner. If required by law,
the Certificate of Limited Partnership shall be amended and recorded not more
often than quarterly, to recognize the admission of Substituted Partners.
Nothing contained herein is meant to require the filing of a Certificate of
Limited Partnership (or amendment thereto) which includes the names of all
Partners and Substituted Partners, if under applicable state law the inclusion
of such names is discretionary. In all events the Project Leader shall amend
this Agreement to reflect the admittance to the Partnership of the Substituted
Partner. The Partnership shall treat a Transferee who becomes a Substituted
Partner pursuant to the provisions of this Article VII as a Substituted Partner
with respect to the Partnership Interest, or part thereof, assigned from the
last business day of the calendar quarter following the acceptance by the
Project Leader of the Transfer, notwithstanding the time consumed in preparing
33
and filing the necessary documents with governmental agencies necessary to
effectuate the substitution.
7.6 Binding Effect. Any Transferee admitted to the Partnership as a
Substituted Partner shall be subject to and bound by all the provisions of the
Agreement as if an original party to the Agreement.
7.7 Permitted Transfers of Partnership Interests. Notwithstanding any
provision of this Article VII or the Agreement to the contrary, a Partner may
transfer its Partnership Interest in accordance with the following, provided the
transfer does not cause a termination of the Partnership under Section 708 of
the Code:
(a) any Partner may transfer all or any part of its Partnership Interest
to its Affiliate, which is directly or indirectly wholly-owned by the Partner;
provided such wholly-owned Affiliate complies with the requirements of Section
7.4 and that, any such transfer shall not relieve the assigning Partner of any
of its past or future obligations under this Agreement;
(b) the Partners may pledge or otherwise encumber their Partnership
Interests to secure indebtedness of the Partnership or of the Partners;
provided, that, any Person who acquires a Partnership Interest by reason of such
pledge or encumbrance shall not in any event be admitted as a Substituted
Partner unless approved in writing by a SuperMajority in Interest.
7.8 Succession to Capital Account. Any valid Transferee of a Partnership
Interest in accordance with the terms of this Agreement shall succeed to the
balance of its Transferor's Capital Account.
ARTICLE VIII
WITHDRAWAL AND REMOVAL;
ADMISSION OF SUCCESSOR AND ADDITIONAL GENERAL PARTNERS
8.1 Voluntary Withdrawal. Each Partner hereby agrees that it may withdraw
from the Partnership only in connection with a Transfer of the entirety of its
Partnership Interest in accordance with Article VII hereof or with the prior
written consent of all other Partners. Any withdrawal not permitted under the
preceding sentence shall constitute a breach of this Agreement by the
withdrawing Partner.
8.2 Other Withdrawal Events. The occurrence of any of the events described
in Subsection 4-43-402(4) and (5) of the Act shall not effect the withdrawal of
a General Partner.
8.3 Removal of a Partner. A Partner may not be removed as a Partner.
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8.4 Liability of a Withdrawn General Partner. Any General Partner which
shall for any reason withdraw from the Partnership, whether voluntarily or
involuntarily, or shall Transfer all or a portion of its Partnership Interest,
shall be and remain liable for all obligations and liabilities incurred by such
General Partner (including liabilities of the Partnership or any NOARK Related
Entity) prior to the time such withdrawal or Transfer has become effective, but
shall be free of any obligation or liability incurred on account of the
activities of the Partnership (including any NOARK Related Entity) from and
after the time such withdrawal or Transfer becomes effective except for any
liabilities or damages attributable to its action in withdrawing from the
Partnership.
8.5 Additional or Successor Partners.
(a) The Management Committee may admit additional or successor General
Partners in connection with a Transfer of all or a part of a General Partner's
Partnership Interest subject to compliance with Article VII above.
(b) If a General Partner withdraws pursuant to this Agreement and if such
removal would leave the Partnership without a General Partner, then prior to the
effective date of such removal or withdrawal, the Limited Partners shall meet to
select and appoint one or more successor General Partners to continue the
business of the Partnership, which selection and appointment shall be effected
by the approval of a Majority in Interest of the Limited Partners and become
effective prior to the removal or withdrawal of a sole General Partner. A one
percent (1%) partnership interest shall be reallocated from the Limited
Partners, pro rata, to any successor General Partner(s) required pursuant to
this Section 8.5, unless the successor General Partner makes a capital
contribution to the Partnership equal to or greater than one percent (1%) of the
total of the Capital Contributions to the Partnership.
8.6 Continuation of Partnership. In the event of an event which causes the
dissolution of the Partnership by the provisions of this Agreement, the
Partnership may be reconstituted and its business continued without being wound
up by the agreement in writing of all Partners.
8.7 Automatic Suspension of the Vote and Right to Participate in
Management of Partnership Affairs: A Partner's right to participate in the
management of Partnership affairs shall be suspended in the event of such
Partner's failure to make a capital contribution required to be made under
Section 4.2 above, when such failure continues for a period of ten (10) days
following receipt of notice from the Project Leader of such failure to make such
capital contribution; provided, however, if the capital contribution required to
be made is being disputed by such Partner in good faith and the Partner
contributes that portion, if any, of the capital contribution not in dispute,
such Partner's right to participate in the management of Partnership affairs
shall not be suspended.
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ARTICLE IX
DISSOLUTION AND LIQUIDATION
9.1 Dissolution. The Partnership shall be dissolved:
(a) upon the expiration of its term as provided in Section 2.4;
(b) upon the approval of a SuperMajority in Interest of the Partners
pursuant to Section 3.5; and
(c) upon any other event that, under this Agreement or Section 4-43-801 of
the Act, causes its dissolution, except that an event of withdrawal of a General
Partner shall not cause a dissolution of the Partnership unless there are no
remaining General Partners and the Limited Partners do not appoint a successor
General Partner in accordance with Section 8.5 hereof.
9.2 Liquidation. Upon dissolution of the Partnership, unless the
Partnership is continued pursuant to the provisions of this Agreement, the
Liquidator shall proceed with the winding up of the business and the liquidation
of the Partnership as set forth under Article X.
ARTICLE X
ALLOCATIONS AND DISTRIBUTIONS ON LIQUIDATION
10.1 Liquidation and Termination.
(a) In the event of the dissolution of the Partnership in accordance with
Section 9.1 above, unless the remaining Partners, if any, elect to continue the
business of the Partnership as provided by the terms of this Agreement, the
Liquidator of the Partnership shall proceed with the winding up of the affairs
of the Partnership. Upon the dissolution of the Partnership no further business
shall be conducted, except for such action as shall be necessary for the winding
up of the affairs of the Partnership and the distribution of its assets to the
Partners pursuant to the provisions of this section. The Liquidator may appoint
in writing one or more liquidating trustees who shall have full authority to
wind up the affairs of the Partnership and to make final distribution as
provided herein.
(b) Upon dissolution of the Partnership, the Liquidator may sell any or
all Partnership property at the best price available or it may distribute those
properties in kind at their Gross Asset Values. Any Partner or an Affiliate of a
Partner may purchase Partnership property upon liquidation following thirty (30)
days prior public notice of the proposed sale. The price paid by a Partner or
its Affiliates for any Partnership property shall in no event be less than the
greater of (i) the highest bid
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received from a third party or (ii) the fair market value of such property as
determined by an independent third party appraiser.
(c) The Liquidator shall apply and distribute the assets of the
Partnership as follows:
(i) First, to the payment and discharge of all of the Partnership's
debts and liabilities to creditors, including the Existing Loans but excluding
other debts to the Partners;
(ii) Second, to the payment and discharge of all of the
Partnership's other debts and liabilities to the Partners.
(iii) Third, after giving effect to all contributions, distributions
and allocations for taxable years including the taxable year in which the
liquidation occurs, to the Partners in accordance with the positive balances in
their respective Capital Accounts; and
(iv) The balance, if any, according to the Partners' respective
Partnership Percentages.
10.2 Capital Account Deficits. If any General Partner has a deficit
balance in its Capital Account (after giving effect to all contributions,
distributions and allocations for all taxable years, including the year during
which such liquidation occurs and Sections 10.1(c)(i) through (iii), but
excluding Section 10.1(c)(iv)) at the time of the dissolution and liquidation of
the Partnership, such General Partner shall contribute to the capital of the
Partnership the amount necessary to restore such deficit balance to zero in
compliance with Treas. Reg. Section 1.704-1(b)(2)(ii)(b)(3). If any Limited
Partner has a deficit balance in its Capital Account (after giving effect to all
contributions, distributions and allocations for all taxable years, including
the year during which such liquidation occurs and Sections 10.1(c)(i) through
(iii), but excluding Section 10.1(c)(iv)) such Limited Partner shall have no
obligation to make any contribution to the capital of the Partnership with
respect to such deficit, and such deficit shall not be considered a debt owed to
the Partnership or to any other Person for any purpose whatsoever.
10.3 Special Distributions. In the discretion of the Liquidator, a portion
of the distributions that would otherwise be made pursuant to this Article X may
be:
(a) distributed to a trust established for the benefit of the Partners for
the purposes of liquidating Partnership assets, collecting amounts owed to the
Partnership, and paying any contingent or unforeseen liabilities or obligations
of the Partnership. The assets of any such trust shall be distributed to the
Partners from time to time, in the reasonable discretion of the Liquidator, in
the same proportions as the amount distributed to such trust by the Partnership
would otherwise have been distributed to the Partners pursuant to this
Agreement; or
(b) withheld to provide a reasonable reserve for Partnership liabilities
(contingent or otherwise) and to reflect the unrealized portion of any
installment obligations owed to the
37
Partnership, provided that such withheld amounts shall be distributed to the
Partners as soon as practicable.
10.4 Deemed Distribution and Recontribution. Notwithstanding any other
provision of this Article X, in the event the Partnership is liquidated within
the meaning of Treas. Reg. Section 1. 704- 1(b)(2)(ii)(g) (regarding when a
liquidation occurs) but it has not dissolved pursuant to Section 9.1 hereof, the
Partnership shall not be liquidated, the Partnership's liabilities shall not be
paid or discharged, and the Partnership's affairs shall not be wound up.
Instead, pursuant to Treas. Reg. Section 1.708-1(b)(1)(iv), the Partnership for
federal income tax purposes shall be deemed to have contributed all of its
property and liabilities to a new partnership in exchange for a partnership
interest in such new partnership pursuant to Treas. Reg. Section
1.708-1(b)(1)(iv). Immediately thereafter, the Partnership for federal income
tax purposes shall be deemed to have distributed the interests in the new
partnership to the Partners in proportion to their interests as if the
Partnership were liquidated.
ARTICLE XI
CERTIFICATES AND OTHER DOCUMENTS
11.1 Project Leader as Attorney for Partners.
(a) Each Partner hereby constitutes and appoints the Project Leader and
any successor of the Project Leader, the true and lawful attorney of, and in the
name, place and stead of said Partner from time to time:
(i) To make all agreements amending this Agreement, as now or
hereafter amended, that may be appropriate to reflect solely:
(1) A change of the name or the location of the principal
place of business of the Partnership;
(2) The disposal by a Partner of his Partnership Interest in
any manner permitted by this Agreement and any return of the Capital
Contribution of a Partner (or any part thereof), if any, provided for by this
Agreement;
(3) A person becoming a Partner of the Partnership, as
permitted by this Agreement;
(4) A change in any provision of this Agreement or the
exercise by any person of any right or rights thereunder, not requiring the
consent of any Partners; and
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(5) The exercise by any person of any right or rights under
this Agreement requiring the consent or approval of all or a portion of the
Partners when the required consent or approval has been given;
(ii) To make such certificates, instruments and documents, including
fictitious business name statements, as may be required by, or may be
appropriate under, the laws of the State of Arkansas in connection with the use
of the name of the Partnership by the Partnership and to make such applications
and filings to transact business as a foreign limited partnership in those
jurisdictions where the nature of the Partnership's properties or business makes
such action advisable;
(iii) To make such certificates, instruments and documents,
including those referenced in Section 11.2 below, and also including amendments
to this Agreement, as said Partner may be required or as may be appropriate for
said Partner to make, by the laws of any state or other jurisdiction solely to
reflect:
(1) A change of address of such Partner;
(2) Any changes in or amendments to this Agreement or the
Certificate of Limited Partnership, or pertaining to the Partnership, of any
kind referred to in Section 11.1(a); and
(3) Any other changes in or amendments to this Agreement or the
Certificate of Limited Partnership, but only if and when such Partner has agreed
to such other changes or amendments by signing, either personally or by duly
appointed attorney (other than the power of attorney set forth herein), an
agreement amending this Agreement.
(b) Each of such agreements, certificates, instruments and documents shall
be in such form as such attorney and counsel for the Partnership shall deem
appropriate. The powers hereby conferred to make agreements, certificates,
instruments and documents shall be deemed to include the powers to sign,
execute, acknowledge, swear to, verify, deliver, file, record and publish the
same.
(c) Each Partner authorizes such attorney to take any further action which
such attorney shall consider necessary or convenient in connection with any of
the foregoing and hereby gives such attorney full power and authority to do and
perform each and every act and thing whatsoever requisite and necessary to be
done in and about the foregoing as fully as such Partner might or could do if
personally present, and hereby ratifies and confirms all that such attorney
shall lawfully do or cause to be done by virtue hereof.
(d) The powers hereby conferred shall continue from the date such Partner
becomes a Partner in the Partnership until such Partner shall cease to be a
Partner and, being coupled with an interest, shall be irrevocable.
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11.2 Making and Filing of Certificate. The Project Leader agrees, when
authorized pursuant to Section 11.1 hereof, or otherwise, to make, file or
record with the Secretary of State of the State of Arkansas or any other
appropriate public authority and (if required) to publish the certificate, any
amendments thereof, and such other certificates, instruments and documents as
may be required or appropriate in connection with the business and affairs of
the Partnership.
11.3 Cancellation of Certificates Evidencing Partnership Interests. On the
date hereof, the Partners shall surrender to the Project Leader all outstanding
certificates evidencing their Partnership Interests which shall be canceled. The
Partnership shall no longer issue such certificates.
ARTICLE XII
BOOKS OF ACCOUNT, FINANCIAL
STATEMENTS AND FISCAL MATTERS
12.1 Books of Account. The Partners intend that the Partnership shall be a
partnership for federal, state and local income tax purposes and to the extent
possible for federal, state and local income tax purposes each NOARK Related
Entity will be treated as set forth in Treas. Reg. Section 301.7701-3(b)(1)(ii).
Each Partner agrees not to make the election described in Section 761 (a) of the
Code to be excluded from the application of the provisions of Subchapter K of
Chapter I of Subtitle A of the Code. Moreover, each Partner agrees not to make
an election to be excluded from the partnership provisions of any applicable
state or local taxation statute. The Management Committee shall, to the extent
permissible under existing law, for income tax purposes, keep or cause to be
kept on an accrual basis, adequate books of account of the Partnership wherein
there shall be recorded and reflected all of the Capital Contributions and all
of the expenses and transactions of the Partnership. Such books of account shall
be kept at the principal place of business of the Partnership (or at the place
where accounting services for the Partnership are performed), and each Partner
and his authorized representatives shall have at all times, during reasonable
business hours, free access to and the right to inspect and copy such books of
account and all records of the Partnership, including the right to obtain by
mail or to inspect a list of the names and addresses and Partnership Interests
owned by the Partners. All books and records of the Partnership shall be kept on
the basis of an annual accounting period ending December 31, except for the
final accounting period which shall end on the dissolution or termination of the
Partnership without reconstitution. Accelerated methods of depreciation may be
elected by the Partnership with respect to its assets for purposes of reporting
federal or state taxes.
12.2 Reports and Financial Statements. The Partner who is maintaining the
accounting records of the Partnership shall maintain a system of accounting
established and administered in accordance with Generally Accepted Accounting
Principles and FERC system of accounts, as applicable, shall maintain a
calculation of Capital Accounts according to the terms of this Agreement, and
shall provide the following reports and financial statements to the Partners:
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(a) Annual Report. Within ninety (90) days after the end of each calendar
year, (i) a balance sheet as of the end of such calendar year, together with a
statement of income or loss and a statement of changes in cash flows for the
Partnership for such year, (ii) a report summarizing the fees and other
remuneration (including reimbursable expenses) paid by the Partnership to each
of the Partners during the preceding year; and (iii) a statement showing each
Partner's estimated allocation of income, gains, losses and credits for Federal
income tax purposes. The balance sheet and financial statements described in
clause (i) of this Section 12.2(a) shall be audited by a nationally recognized
certified public accounting firm appointed by the Management Committee;
(b) Monthly Reports. Within thirty (30) days after the end of each month,
the balance sheet of the Partnership as of the end of such month and the
statement of income of the Partnership for such month and for the period
commencing at the end of the previous fiscal year and ending with the end of
such month, all in reasonable detail; and
(c) Income Tax Information. Within one hundred sixty-five (165) days after
the end of each calendar year, the Partnership will also furnish each Partner
(and each transferee of a Partnership Interest who shall have not become a
Substituted Partner) with the required income tax information based upon the
Partnership's tax return which will be prepared and filed with the Service and
other applicable taxing authorities. Within ninety (90) days after the end of
each calendar year, the Partnership will furnish to each Partner (and each
transferee of a Partnership Interest who shall have not become a Substituted
Partner) an estimate of the required income tax information.
12.3 Tax Returns and Other Reports. The Project Leader, at the
Partnership's expense, shall cause income tax returns for the Partnership to be
prepared and timely filed with the appropriate authorities. The Project Leader,
at Partnership expense, shall cause to be prepared and timely filed, with
appropriate federal and state regulatory and administrative bodies, all reports
required to be filed with such entities under then current applicable laws,
rules and regulations. Such reports shall be prepared on the accounting or
reporting basis required by such regulatory bodies. Any Partner shall be
provided with a copy of any such report upon request without expense to it.
12.4 Fiscal Year. The fiscal year of the Partnership shall begin with the
first day of January and end on the last day of December in each year.
12.5 Bank Accounts, Funds and Assets. The funds of the Partnership shall
be invested in such accounts and investments as described herein and such funds
shall be withdrawn only by the Project Leader or his duly authorized agents. The
Project Leader shall have fiduciary responsibility for the safekeeping and use
of all funds of the Partnership, whether or not in his immediate possession or
control, and he shall not employ such funds or assets in any manner except for
the exclusive benefit of the Partnership.
12.6 Tax Elections. The Partnership shall make the following elections
under the Code and Treasury Regulations and any similar state or local statutes
subject to modification at the
41
direction of the Management Committee (which modification shall be subject to
any applicable Partner approvals required to be obtained under Section 3.5):
(a) To adopt the calendar year as the annual accounting period, unless
otherwise required by law;
(b) To adopt the accrual method of accounting;
(c) To compute the allowance for depreciation utilizing the shortest life
and fastest method permissible under the Modified Accelerated Cost Recovery
System under Code Section 168(j) or other applicable depreciation system;
(d) To amortize start-up expenditures, if any, over a sixty (60) month
period in accordance with Code Section 195(b) and any similar state statute;
(e) To amortize organization expenses and syndication fees if any, over a
sixty (60) month period in accordance with Code Section 709(b) and any similar
state statute;
(f) To make such other elections as it may deem advisable to reduce
Partnership (including the NOARK Related Entities) taxable income to the maximum
extent possible and to take deductions in the earliest taxable year possible;
and
(g) To make the election provided under Code Section 754, upon the request
of any Partner, if there is a distribution of property as described in Code
Section 734 or if there is a transfer of an interest as described in Code
Section 743.
12.7 Other Partnership Records. The Partnership shall keep and maintain in
its principal office all records as required by Section 4-43-105 of the Act.
Such records shall include the following:
(a) A current list that states the name and mailing address of each
Partner, separately identifying in alphabetical order the General Partners and
the Limited Partners;
(b) Copies of the Partnership's federal, state and local information or
income tax returns and copies of the Partnership's financial statements for each
of the Partnership's three most recent years, if applicable;
(c) A copy of the Agreement and the Certificate of Limited Partnership,
all amendments or restatements, executed copies of any powers of attorney under
which the Agreement and the Certificate of Limited Partnership and all
amendments or restatements to the Agreement and the Certificate of Limited
Partnership have been executed; and
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(d) A written statement of: (i) all Capital Contributions made to the
Partnership, including cash amounts and a description and statement of the
agreed value of any non-cash Capital Contributions, and similar information with
respect to all Capital Contributions which the Partners have agreed to make in
the future; and (ii) all capital calls issued to the Partners.
Any Partner shall have the right to inspect and, at its own expense, copy and
audit any of the books and records of the Partnership upon giving reasonable
advance notice to the other Partners.
12.8 Survival of Tax Provision. The provisions of the Agreement relating
to tax matters shall survive the termination of the Agreement and the
termination of any Partner's Partnership Interest and shall remain binding on
that Partner for the period of time necessary to resolve any tax matters
regarding the Partnership with any federal, state and local tax authority.
12.9 Deposit of Funds. Funds of the Partnership shall be deposited in such
banks or other depositories as shall be designated by the Project Leader.
Pending the application of such funds to the cash needs of the Partnership, the
Partnership's funds shall, to the extent practicable, be continuously invested.
Funds of the Partnership may only be placed in the following types of
investments; provided, that such investments shall not preclude the timely
distribution of excess cash; and provided, further, that any investment of
working capital shall not preclude the timely payment of the Partnership's
obligations when and as due:
12.9.1 Cash in the form of U.S. currency.
12.9.2 Evidence of indebtedness, maturing not more than one year
after the date of issue, issued or guaranteed by the United States of
America, or agencies thereof.
12.9.3 Collateralized repurchase agreements in respect of the
obligations described in Section 12.9.2 with the banks in which the
Partnership maintains its operating accounts or with a related trust
company.
12.9.4 Such other investments as the members on the Management
Committee representing the General Partners shall determine by unanimous
decision.
ARTICLE XIII
DISPUTE RESOLUTION
13.1 Invoking Procedure. In the event of a dispute between the Partners
arising out of or related to this Agreement or related to the business or
affairs of the Partnership, or in the event a SuperMajority in Interest of the
Partners do not agree on a matter requiring such approval under Section 3.5 of
this Agreement and such lack of approval results in a Stalemate (as hereinafter
defined in Section 13.2), either Partner may invoke the procedures specified in
this Article by giving written
43
notice to the other Partners. Such written notice will describe briefly the
nature of the dispute, or the matter for which approval has not been obtained
under Section 3.5, and shall identify an individual with authority to settle
such dispute or matter on behalf of that Partner. The Partner receiving such
notice shall have ten (10) days within which to designate an individual with
authority to settle such dispute or matter on its behalf and to give written
notice to the other Partner of its designation (the individuals so designated
shall be referred to as the "Authorized Individuals"). Unless otherwise
notified, the Authorized Individual of each Partner shall be its President. For
purposes of this Section 13.1, any matter which would otherwise be a Stalemate
if a meeting of the Partners had been held and requisite SuperMajority in
Interest approval not obtained, or a proposal submitted pursuant to Section
3.4(e) and the requisite SuperMajority in Interest approval not given, shall be
deemed ripe for resolution under this Article XIII if the proponent has (i)
called a meeting of the Partners and has included in the Agenda included with
the notice of the meeting a full and complete description of the proposal along
with all information reasonably required for a determination or vote by the
other Partners(s) and the other Partner(s) does not attend the meeting and does
not, prior to the time scheduled therefor, request a postponement or adjournment
thereof for up to ten days, or if the Partner(s) requests such a postponement or
adjournment but does not attend the postponed meeting or a new Partner meeting
within such ten (10) day period, or (ii) submitted such proposal to the other
Partner(s) for approval pursuant to Section 3.4(e) hereof and such other
Partner(s) does not provide such consent within fifteen (15) days from the later
of its receipt of such request or the date that it shall receive all additional
information regarding such proposal that it may have reasonably requested in a
written notice submitted to the proponent not more than ten (10) days after the
receipt of the proponent's request for such consent.
13.2 Stalemate Defined. For purposes of this Article XIII, a "Stalemate"
shall mean any situation in which one or more proposals have been submitted to
the Partners relating to action reasonably considered by the proponent to be
required to be taken by the Partnership, or the Project Leader on behalf of the
Partnership, in order to avoid or substantially mitigate (i) a cessation of, or
material disruption or impediment in, the conduct of its ongoing operations and
affairs to any material extent, or (ii) potential material harm or damage to the
Partnership, its business, operations, affairs, properties or other assets, but
which proposal or proposals are not able to be implemented because there has not
been an approval thereof by a SuperMajority in Interest of the Partners as
required by Section 3.5. In this regard, the failure to approve a Budget by the
end of the first quarter of a fiscal year to which it relates and which has been
presented to the Partners in material compliance with Section 3.6(g) hereof
shall be considered to be a Stalemate and approval of the Budget, or specific
items thereof which are then in dispute, as then proposed may be presented for
dispute resolution pursuant to this Article XIII.
13.3 Investigation. The Authorized Individuals shall make whatever
investigation each deems appropriate and promptly thereafter, but no later than
thirty (30) days from the date of the original notice invoking these procedures,
shall commence discussions concerning resolution of the dispute or matter. If
the dispute or matter has not been resolved within sixty (60) days from the date
44
of the original notice invoking these procedures, the Partners shall submit the
dispute or matter to ADR in accordance with the following procedure.
13.4 Neutral. The Partners shall have ten (10) days from the expiration of
the sixty (60) day period referred to in Section 13.2 above, or the agreement of
the Partners, to submit the dispute or matter to ADR, whichever occurs first,
within which to agree upon a mutually acceptable person not affiliated with
either party ("Neutral"). If no Neutral has been selected within that time
period, the Partners agree jointly to request the American Arbitration
Association or other mutually agreed-upon organization, to supply within ten
(10) days a list of at least three (3) potential Neutrals with qualifications as
specified by the Partners in the joint request. Within seven (7) days of receipt
of the list, the Partners shall rank the proposed candidates independently,
exchange rankings and select as the Neutral the individual who received the
highest combined ranking who is available to serve.
13.5 Schedule. In consultation with the Neutral, the Partners shall
designate a mutually convenient time and place for the ADR, and unless
circumstances require otherwise, such time shall be not later than forty-five
(45) days after the selection of the Neutral.
13.6 Discovery. In the event one or both Partners have substantial need
for information in the possession of the other Partner or a need to take certain
limited depositions and/or production of principal documents in order to prepare
for the ADR, the Partners shall attempt in good faith to agree on a plan for the
expeditious exchange of such information. Should they fail to reach agreement,
either Partner may request a meeting with the Neutral who shall assist them in
reaching an accommodation.
13.7 Written Submission. One week prior to the first scheduled session of
the ADR, each Partner shall deliver to the Neutral and to the other Partner a
written summary of its views on the dispute or matter in issue. The summary
shall be no longer than twenty (20) double-spaced pages unless the Partners
agree otherwise.
13.8 Representatives. In the ADR, each Partner shall be represented by the
Authorized Individual and by counsel. In addition, each Partner may bring
additional persons as necessary to respond to questions or contribute
information as needed. The number of such additional persons to be allowed shall
be mutually agreed by the Partners with the assistance of the Neutral, if
necessary.
13.9 Structure. The Neutral is authorized to conduct joint and separate
meetings with the Partners and to help the Partners structure whatever form of
presentation of the dispute or matter in issue is most likely to facilitate
resolution. Notwithstanding the form of the presentation, it is the intent of
the Partners to provide an opportunity for their Authorized Individuals, with or
without the assistance of counsel, and with the assistance of the Neutral, to
negotiate a resolution of the dispute or matter in issue. In the event the
Neutral holds separate private caucuses with either Partner, he or she shall
keep confidential all information learned in such private caucuses unless
specifically
45
authorized to make disclosure of the information to the other Partner. There
shall be no stenographic, visual, or audio record made of the ADR.
13.10 Mandatory. The Partners agree to participate in the ADR to its
conclusion as designated by the Neutral and not to terminate negotiations
concerning resolution of the dispute or matter in issue until at least two (2)
weeks thereafter. Each Partner agrees not to commence arbitration or seek other
remedies prior to the conclusion of the two-week post-ADR negotiation period,
provided that either Partner may commence arbitration on any date after which
the commencement of litigation could be barred by an applicable statute of
limitations or in order to request an injunction to prevent irreparable harm. In
such event, the Partners agree (except as prohibited by court order) to continue
to participate in the ADR to its conclusion.
13.11 Fees. The fees of, and authorized costs incurred by, the Neutral
shall be advanced by the Partnership and shared equally by the Partners who
shall reimburse the Partnership. The Neutral shall be disqualified as a witness,
consultant, expert, or counsel for any Partner with respect to the dispute or
matter in issue and any related matters.
13.12 Later Proceedings. The ADR is a compromise negotiation for purposes
of the Federal Rules of Evidence and the Rules of Evidence of the State of
Oklahoma. The entire procedure is confidential. All conduct, statements,
promises, offers, views, and opinions, whether oral or written, made in the
course of the ADR by any of the Partners, their agents, employees,
representatives, or other invitees to the ADR and by the Neutral, who is the
parties' joint agent for the purposes of these compromise negotiations, are
confidential and shall, in addition and where appropriate, be deemed to be work
product and privileged. Such conduct, statements, promises, offers, views, and
opinions shall not be discoverable or admissible for any purposes, including
impeachment, in any litigation or other proceeding involving the Partners and
shall not be disclosed to anyone not an agent, employee, expert, witness, or
representative for any of the Partners. Evidence otherwise discoverable or
admissible is not excluded from discovery or admission as a result of its use in
the ADR.
13.13 Dispute Resolution
(a) In the event the Partners are unable to resolve the dispute or matter
in issue in accordance with the foregoing provision of this Article XIII, the
dispute or matter in issue shall be submitted to final and binding arbitration.
The arbitration shall be administered by the American Arbitration Association
("AAA") in accordance with and in the following order of priority: (i) the terms
of these arbitration provisions; (ii) the Commercial Arbitration Rules of the
AAA; (iii) the Federal Arbitration Act (Title 9 of the United States Code); (iv)
the Oklahoma Uniform Arbitration Act (15 O.S. Section 801, et seq.); and (v) to
the extent the foregoing are inapplicable, unenforceable or invalid, the laws of
the State of Oklahoma. The validity and enforceability of these arbitration
provisions shall be determined in accordance with the same order or priority. In
the event of any inconsistency between these arbitration provisions and such
rules and statutes, these arbitration provisions shall control. Judgment upon
any award rendered hereunder shall be entered in any court having jurisdiction
thereof, and the parties' consent to the jurisdiction of any state or federal
court in
46
Oklahoma. Commencement of and demand for arbitration shall be made by written
notice by the initiating party (claimant) to the other party (respondent) which
contains a statement of the nature of the dispute or matter in issue, the amount
involved and the relief or remedy sought ("Notice").
(b) The arbitration shall be conducted by a panel of three (3) arbitrators
(the "Arbitration Panel"). Each Partner will nominate one (1) arbitrator, who is
experienced and knowledgeable in the areas involved in the dispute or matter in
issue, within ten (10) working days of their receipt of Notice that arbitration
has been demanded and commenced, and each will notify the other party of the
name of its selected arbitrator within that same time period. In the case of a
matter which is subject to Section 3.5 which results in a Stalemate, the
arbitrator nominated by each Partner shall not be an attorney. If a Partner
refuses to name an arbitrator, application will be made to the Chief Judge of
the United States District Court for the Northern District of Oklahoma
requesting that the Chief Judge appoint an arbitrator. If the Chief Judge
declines to name an arbitrator, application will be made to the AAA. The two
arbitrators thus selected will confer within ten (10) working days of their
final selection and agree upon a third arbitrator. If the two arbitrators are
unable to agree on a third arbitrator within sixty (60) working days of their
first contact, the nomination of the third arbitrator will follow the same
procedure as the nomination of a party arbitrator for a party refusing to make a
selection. AAA Rules regarding the selection, qualification, and challenge or
arbitrator shall only apply to the second or third arbitrators if those
arbitrators are selected by the AAA. No member of the Arbitration Panel may be
involved in the controversy, be or have been an officer, director,
representative, employee or agent of or for either party. The third arbitrator
shall act as Chairman of the Arbitration Panel.
(c) The costs and fees of the arbitrators selected by the Partners shall
be borne by the Partners selecting such arbitrator, unless otherwise awarded by
the Arbitration Panel. The costs and fees attributable to the third arbitrator
shall be shared equally by the Partners, unless otherwise awarded by the
Arbitration Panel.
(d) The Arbitration Panel may engage engineers, accountants or other
consultants that the Arbitration Panel deems necessary to render a decision in
the Arbitration Proceeding. All fees of any such consultants shall be borne
equally by the Partners, unless otherwise awarded by the Arbitration Panel.
(e) The arbitration will be governed by the Federal Arbitration Act, 9
U.S.C. Sections et seq., and the Oklahoma Uniform Arbitration Act, 15 Okla.
Stat. Sections 801 et seq. The arbitrators will establish a schedule that will
result in a final arbitration award to be rendered in written form not later
than one hundred eighty (180) days following the appointment of the third
arbitrator. The place of the arbitration shall be Tulsa, Oklahoma.
(f) The Partners agree that pre-arbitration hearing discovery is
necessary. Within twenty (20) working days after the appointment of the third
arbitrator, the Partners agree to exchange lists of the witnesses and exhibits
each then plans to call and use in the Arbitration Hearing. Within twenty
47
(20) working days after the exchange of witness and exhibit lists, each Partner
may request additional discovery, if any is necessary, from the other Partner.
The Partners agree to respond to any such additional request for documents from
the other Partner within thirty (30) days after receiving such request, and each
agrees to attempt in good faith to schedule the depositions of witnesses
requested by the other side by agreement. If the Partners are unable to agree on
any aspect of discovery requested, such discovery issue shall be presented to
and resolved by the Arbitration Panel.
(g) Any dispute relating to or arising under this arbitration provision,
including interpretation thereof, shall be solely and finally resolved by
submission to the Arbitration Panel.
(h) A written decision by two (2) of the arbitrators will be final and
binding on the Partners. An arbitration award will be in writing and signed by
the arbitrators. An arbitration award entered herein can be confirmed by either
of the Partners in the United States District Courts for the Northern or Western
Districts of Oklahoma or the Western District of Arkansas or any state district
court for the States of Oklahoma or Arkansas, and a judgment may be entered on
the arbitration award by the same court.
(i) Punitive damages may not be awarded by the Arbitration Panel. The
Arbitration Panel shall have the power to award recovery to the prevailing party
of all or part of its costs, expenses and attorneys' fees incurred in
conjunction with such Arbitration Proceeding.
(j) The Partners, their Affiliates, employees, contractors, attorneys, and
auditors shall keep the substance of these final and binding arbitration
proceedings confidential to the extent the same is permissible, consistent with
the responsibilities of the attorneys under the pertinent Codes of Professional
Responsibility or obligations which may reasonably require disclosure to
financial institutions, consultants for evaluation purposes or as may be ordered
by the federal or state government or a court of competent jurisdiction. Under
no circumstances shall any documents memorializing the substance of any aspect
of these proceedings be disclosed or released to the newspaper or other media
absent the mutual agreement of the Partners. The Partners will use all
reasonable efforts to obtain protective orders before disclosing any terms of
these proceedings to any federal or state government or a court of competent
jurisdiction.
(k) Except for the internal costs of each party, all costs, fees and
expenses of any portion of this dispute resolution process shall be shared
equally by the Partners, unless otherwise specified herein.
48
ARTICLE XIV
LIMITATION OF AUTHORITY
Neither the Management Committee, the committees established by the
Management Committee, the Project Leader, nor the Partners shall have any
authority to take any action i) inconsistent with the terms of this Agreement or
ii) which will permit the Securities and Exchange Commission or any other
governmental agency to have jurisdiction with respect to the Partnership or any
Partner under the Public Utility Holding Company Act of 1935, U.S.C. Title 15,
Sections-6.
ARTICLE XV
LIMITATION OF LIABILITIES
No Partner shall be liable to third Persons for Partnership losses,
deficits, liabilities or obligations except as otherwise expressly agreed to in
writing by such Partners, unless the assets of the Partnership shall first be
exhausted; provided, however, that the Limited Partner shall not be liable for
any of the debts of the Partnership or any of its obligations except to the
extent provided under this Agreement or other applicable law. The provisions of
this Article XV shall not modify or alter the specific obligations of a Partner
under this Agreement or the Omnibus Agreement.
ARTICLE XVI
MISCELLANEOUS
16.1 Notices. Any notice, request, instruction, correspondence or other
document to be given hereunder by any party (herein collectively called
"Notice") shall be in writing and delivered in person or by courier service
requiring acknowledgment of receipt of delivery or mailed by certified mail,
postage prepaid and return receipt requested, or by telecopier, as follows:
if to EAPC,
Enogex Arkansas Pipeline Corporation
600 Central Park Two
515 Central Park Drive
Oklahoma City, OK 73105
Attention: President
Facsimile No.: (405) 557-5205
with copy to (which copy shall not constitute notice to):
Enogex Inc.
49
600 Central Park Two
515 Central Park Drive
Oklahoma City, OK 73105
Attention: General Counsel
Facsimile No.: (405) 557-5205
if to SWPL,
Southwestern Energy Pipeline Company
c/o Southwestern Energy Services Company
2200 MidContinent Tower
401 S. Boston Ave.
Tulsa, Oklahoma 74103
Attention: Senior Vice President
Facsimile No.: (918) 584-4222
with copy to (which copy shall not constitute notice to):
Southwestern Energy Company
1083 Sain Street
P.O. Box 1408
Fayetteville, Arkansas 72702-1408
Attention: Executive Vice President - Finance & Corporate Development
Facsimile No.: (501) 521-1147
if to any other Partner, addressed to the applicable address provided by such
Partner in writing to all other Partners.
Notice given by personal delivery, courier service or mail shall be effective
upon actual receipt. Notice given by telecopier shall be confirmed by
appropriate answer back and shall be effective upon actual receipt if received
during the recipient's normal business hours, or at the beginning of the
recipient's next business day after receipt if not received during the
recipient's normal business hours. All Notices by telecopier shall be confirmed
promptly after transmission in writing by certified mail or personal delivery.
All Notices by mail shall be deemed received on the fifth business day following
the date on which the same is mailed. Any party may change any address to which
Notice is to be given to it by giving Notice as provided above of such change of
address.
16.2 Captions and Pronouns. Any titles or captions or articles or
paragraphs contained in this Agreement are for convenience only and shall not be
deemed part of the context of this Agreement. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular or
plural, as the identification of the person or persons, firm or firms,
corporation or corporations may require.
50
16.3 Binding Effect. Except as otherwise herein provided, this Agreement
shall be binding upon and inure to the benefit of the parties hereto, their
heirs, executors, administrators, successors and all Persons hereafter having or
holding a Partnership Interest, whether as assignees, Substituted Partners, or
otherwise. Nothing in this Agreement, express or implied, is intended to confer
upon any person or entity other than the parties hereto and their respective
permitted successors and assigns, any rights, benefits or obligations hereunder.
16.4 Amendment of the Agreement. Except as otherwise provided in this
Agreement, an amendment to this Agreement shall require the unanimous consent of
the Partners.
16.5 Governing Law. THE PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARKANSAS
(EXCLUDING ANY CONFLICTS-OF-LAW RULE OR PRINCIPLE THAT MIGHT REFER SAME TO THE
LAWS OF ANOTHER JURISDICTION), EXCEPT TO THE EXTENT THAT SAME ARE MANDATORILY
SUBJECT TO THE LAWS OF ANOTHER JURISDICTION PURSUANT TO THE LAWS OF SUCH OTHER
JURISDICTION.
16.6 Counterparts and Execution. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original Agreement, and
all of which shall constitute one Agreement, by each of the parties hereto on
the dates respectively indicated in the signatures of said parties,
notwithstanding that all of the parties are not signatories to the original or
to the same counterpart, to be effective as of the day and year hereinabove set
forth.
16.7 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future state or federal laws
or rules and regulations promulgated thereunder effective during the term
hereof, such provision shall be fully severable, and the Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid, or unenforceable provision, there shall be
automatically as a part of this Agreement a provision similar in terms to such
illegal, invalid, or unenforceable provision as may be possible and be legal,
valid and enforceable.
16.8 Waiver. None of the requirements of this Agreement may be waived
unless waived in writing by the named party or all parties to this Agreement.
Failure by any party to enforce its rights hereunder shall not subsequently act
as a waiver of those or any other rights. The waiver by any party of a breach of
any provision of this Agreement shall not operate or be construed as a waiver by
such party of any subsequent breach.
16.9 Attorneys' Fees. In any suit to enforce this Agreement, the
prevailing party shall have the right to recover its costs and reasonable
attorneys' fees and
51
expenses, including costs, fees and expenses on appeal if the finder of facts,
including an arbitrator, determines that the non-prevailing party's arguments
were frivolous or substantially without merit.
16.10 Construction. This Agreement was drafted jointly by the Parties, and
no presumption shall operate in favor of or against any Party as a result of any
responsibility that any Party may have had in drafting this Agreement or any
part thereof.
52
IN WITNESS WHEREOF, the Partners have executed this Agreement on the date
first set forth above.
GENERAL PARTNERS:
ENOGEX ARKANSAS PIPELINE CORPORATION
By: ____________________________
Name: Roger A. Farrell
Title: Vice President
SOUTHWESTERN ENERGY PIPELINE
COMPANY
By: ______________________________
Name: Stanley D. Green
Title: Executive Vice President - Finance &
Corporate Development
LIMITED PARTNER:
ENOGEX ARKANSAS PIPELINE
CORPORATION
By: ______________________________
Name: Roger A. Farrell
Title: Vice President
53
EXHIBIT A
DESCRIPTION OF
INTERCONNECTION, INTEGRATION AND EXPANSION OF PIPELINE
FACILITIES OF NOARK AND OZARK
Following are capital improvements proposed to combine and expand the
existing Ozark and NOARK systems.
PIPELINE
Tie NOARK and Ozark systems together at their farthest west crossing in
Sebastian County, Arkansas. This tie-in would include approximately 600 feet of
10-inch piping, relocation of existing pigging facilities to the terminus of the
10-inch addition and conversion of the existing 10 inch Ft. Chaffee suction line
to interconnect discharge service. This will give the existing NOARK compressor
station in Franklin County, Arkansas a common suction to both systems. The
improvements for this connection will also include appropriate crossover
valving, bypass valving, crossover risers and interconnection site as necessary.
Construct two, 20-inch diameter pipeline segments, approximately 4.75
miles each, to integrate the Ozark and NOARK systems through the existing NOARK
compression. One 20-inch pipeline, which will serve as a suction connection from
Ozark to the NOARK station, will span from the area of milepost 123 on the Ozark
system to the suction of the existing NOARK compression in Franklin County. The
other 20-inch pipeline will follow the same corridor and will serve as a
discharge pipeline back to the existing Ozark system near milepost 123. These
improvements will also include the appropriate block valve, crossover piping,
crossover risers and interconnect site as necessary.
COMPRESSION
Upgrade the existing Ozark Lequire compressor station to handle more volume.
Installation of between 7,000 and 11,000 horsepower of additional compression at
the Lequire station, dependent on final design and utilization of existing
turbine compression. Installation to include related station yard piping,
valving, electrical switchgear, and electric facilities as required.
Upgrade the existing NOARK compressor station to handle more volume.
Installation of approximately 13,000 horsepower of additional compression at the
NOARK station. Station manifold and yard piping will be adapted as necessary to
accept the new suction and discharge lines to the Ozark system including 20 inch
pig launcher and receiver facilities. Appropriate valving and piping will also
be added to provide flexibility to discharge into either or both systems.
A-1
MEASUREMENT
Upgrade receipt metering stations to provide additional design receipt capacity
from the existing Enogex and Transok metering points into the Ozark pipeline
system. Facilities to include additional valving, meter tubes and telemetry to
meet AGA standards.
SCADA
Upgrade existing Ozark and/or NOARK Scada system(s) to provide interconnect
communication between the Ozark and NOARK pipeline systems consistent with FERC
requirements and sound operating practices.
A-2
EXHIBIT B
ACCOUNTING PROCEDURES
TO
AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
NOARK PIPELINE SYSTEM, LIMITED PARTNERSHIP
DATED JANUARY 12, 1998
These Accounting Procedures are a part of, and are to be interpreted and
applied in conjunction with the above referenced Amended and Restated Agreement
of Limited Partnership (the "Partnership Agreement"). To the extent of any
inconsistencies in or conflicts between the provisions of these Accounting
Procedures and the Partnership Agreement, the provisions of the Partnership
Agreement will control.
I.
GENERAL PROVISIONS
1. Statements and Billings
Each Partner shall render all bills and statements to the Partnership on
or before the last day of each month for the costs, expenses and expenditures
for the preceding months. Such bills will be accompanied by a statement of all
charges and credits to the Partnership, including discounts, if any, summarized
by appropriate classifications indicative of the nature thereof.
2. Payment by Partnership
The Partnership shall pay all bills within fifteen (15) days after receipt
thereof. If payment is not made or cash funds are not made available to the
Partnership within such time for amounts owed, the unpaid balance shall bear
interest until paid at one (1) percentage point over the prime rate from time to
time charged by Citibank, N.A., New York, N.Y. to responsible commercial and
industrial borrowers, not in excess of the maximum lawful rate.
3. Adjustments
Payment of any bill shall not prejudice the right of the Partnership to
protest or question the correctness thereof; provided, however, all bills and
statements rendered to the Partnership during any calendar year shall
conclusively be presumed to be true and correct after twenty-four (24) months
following the end of such calendar year, unless prior to the end of said
twenty-four (24) month period the Partnership takes written exception thereto
and makes claim for
B-1
adjustment. The provisions of this paragraph shall not prevent adjustments
resulting from a physical inventory of the assets of the Partnership or
mathematical errors.
4. Audits
Any auditor, inspector or auditing committee appointed by the Partnership
shall have the right to audit the accounts and records of each Partner relating
to the accounting hereunder after due notice and during the usual working hours.
II.
COSTS, EXPENSES AND EXPENDITURES
Subject to the limitations hereinafter prescribed and the provisions of
the Agreement to which this Accounting Procedures is an exhibit, each Partner
shall charge the Partnership for all costs, expenses and expenditures incurred
by it and its affiliated persons and entities, collectively as though solely its
costs, in connection with the administration, accounting, legal, operation,
maintenance, upkeep, repair, replacement, development, expansion, enlargement,
improvement or abandonment of the System or the Partnership (including any NOARK
Related Entity) (hereinafter referred to as "Operation of the System"),
including the following items:
1. Rentals
All rentals paid or the portion thereof attributable to the Operation of
the System.
2. Labor Costs
A. Salaries and wages of employees engaged in connection with the
Operation of the System, and, in addition, amounts paid as salaries and wages of
others temporarily employed in connection therewith. Employees engaged less than
full time in connection with the Operation of the System shall keep an accurate
daily log of the time spent on behalf of the Partnership contemporaneously with
the work being done, including the specific services rendered. Such log shall be
delivered to the Partnership upon request. Said salaries and wages shall not
exceed the going rate for the technical expertise of the employee so engaged.
B. Costs of holiday, vacation, sickness and jury service benefits and
other customary allowances paid to persons whose salaries and wages are
chargeable under Paragraph 2A of this Part II. Costs under this Paragraph 2B
shall be charged on the basis of a percentage assessment on the amount of
salaries and wages chargeable under Paragraph 2A of this Part II.
C. Expenditures or contributions made pursuant to assessments imposed by
governmental authority which are applicable to salaries, wages and costs
chargeable under Paragraphs 2A and 2B of this Part II. Costs under this
Paragraph 2C shall be charged on the
B-2
basis of a percentage assessment on the amount of salaries and wages chargeable
under Paragraph 2A of this Part II.
D. The costs of plans for employees group life insurance, hospitalization,
disability, pension, retirement, thrift and other benefit plans, applicable to
labor costs chargeable under Paragraph 2A of this Part II. Costs under this
Paragraph 2D shall be charged on the basis of a percentage assessment on the
amount of salaries and wages chargeable under Paragraph 2A of this Part II.
3. Reimbursable Expenses of Employees
Reasonable personal expenses of employees whose salaries and wages are
chargeable under Paragraph 2A of this Part II. Personal expenses shall include
the usual out-of-pocket expenditures incurred by employees in the performance of
their duties directly related to the Operation of the System and for which such
employees are reimbursed, including without limitation travel, hotel,
transportation and meal expenses.
4. Material, Equipment and Supplies
Material, equipment and supplies purchased or furnished from a Partner's
warehouse or other properties for use in the Operation of the System. So far as
it is reasonable, practical and consistent with efficient and economical
operation, only such material shall be obtained for the Operation of the System
as may be required for immediate use, and the accumulation of surplus stock
shall be avoided.
5. Transportation
Transportation of employees, equipment, material and supplied necessary
for the Operation of the System. However, unless otherwise previously agreed to,
the Management Committee may require that charges for transportation of
equipment, material and supplies furnished from a Partner's warehouse or other
properties be recalculated and reduced if such charges are in excess of the
transportation which would have been charged for movement of property from the
nearest reliable supply store or railroad receiving point.
6. Services
A. The cost of contract services and utilities procured from outside
sources, not to exceed $50,000 per occurrence without the approval of the
Management Committee.
B. Use and service of vehicles, equipment and facilities as provided in
Paragraph 5 of Part III.
B-3
7. Legal Expenses and Claims
All costs and expenses of handling, investigating and settling claims
arising by reason of the Operation of the System or necessary to protect or
recover any Partnership (including any NOARK Related Entity) property,
including, but not limited to, attorneys' fees, court costs, costs of
investigation or procuring evidence and any judgments paid or amounts paid in
settlement or satisfaction of any such claims. Expenditures in excess of $50,000
for any single item of cost shall require the approval of the Management
Committee as provided in the Partnership Agreement.
8. Taxes
All taxes of every kind and nature assessed or levied upon or incurred in
connection with the Operation of the System or the Partnership (including any
NOARK Related Entity) property, and which taxes have been paid by a Partner for
the benefit of the Partnership.
9. Insurance
Premiums paid or allocated for insurance carried under this Agreement for
the benefit of the Partners and the Partnership.
10. Permits, Licenses and Bonds
Costs of permits, licenses and bond premiums necessary in the performance
of a Partner's duties.
11. Government Compliance Costs
All costs incurred in connection with the Partnership (including any NOARK
Related Entity) or the System as a result of or in compliance with governmental
or regulatory requirements, including without limitation those relating to
Federal Energy Regulatory Commission regulation and environmental, health or
safety considerations applicable to the System. Such costs may include, but are
not limited to, disposal of wastes, surveys of an ecological or archaeological
nature and pollution prevention or control as required by applicable legal
requirements.
12. Land Right Acquisition Costs
All land right acquisition costs, including those for rights-of-way,
surface leases, permits, fee purchases, etc.
13. Other Costs, Expenses and Expenditures
B-4
Any other costs, expenses and expenditures not covered or dealt with in
the foregoing provisions of this Part II which are incurred in the Operation of
the System, not to exceed $50,000 per occurrence without approval of the
Management Committee as provided in the Partnership Agreement.
14. Overhead Charges
Each Partner authorized by the Partnership to undertake a capital project
on behalf of the Partnership shall charge an amount as set forth below as
overhead.
A. In connection with all capital expenditures in excess of $50,000 per
project (except the interconnection of the NOARK and the Ozark pipeline systems
and the expansion of those pipeline systems as contemplated by the Omnibus
Agreement and Exhibit I thereto), such Partner shall charge an additional amount
equal to the sum of the amounts obtained by applying the following percentages
to the expenditures for a project monthly as they are incurred:
Project Direct Cost Overhead Percentage
- --------------------- -------------------
$000 to $2,000,000 5.00%
Costs over $2,000,000 2.00%
The above overhead percentages for capital expenditures do not include
engineering, right-of-way, or other construction services directly attributable
to the project even though performed in the Partner's principal business office.
B. As provided in Section 3.7(d)(i), the Management Committee has
delegated to SWPL the continued performance of the accounting services for the
Partnership. In connection with the provision of those services, SWPL shall
receive an amount equal to $5,000 per month as reimbursements for all overhead
amounts related to the performance of such services. This overhead amount is in
addition to all direct or other costs incurred by SWPL in the performance of
such services and chargeable under these Accounting Procedures; provided under
no circumstances will there be any double collection of costs.
III.
BASIS OF CHARGES
l. Purchases
Material purchased and services procured shall be charged at the price
paid after deduction of all discounts actually received.
2. Material Furnished from a Partner's warehouse or other properties
B-5
A. New Material
1. Tubular goods, two inch and over, shall be priced on competitive bids
from at least three suppliers. In addition a Partner shall be permitted to
include loading and unloading costs actually sustained.
2. Other material shall be priced at the current replacement cost of the
same kind of material, effective at the date of movement by the Partner and
f.o.b. the supply store or railway receiving point nearest the System where
material of the same kind is available.
3. The Partnership shall be credited with cash discounts applicable to
prices provided for in this Paragraph 2 of Part III.
B. Used Material
1. Used material in sound and serviceable condition and suitable for reuse
shall be priced at seventy-five percent (75%) of the current price of new
material as determined in Paragraph 2A above.
2. Used material which cannot be classified as being in a sound and
serviceable condition and which is no longer suitable for its original purpose,
but usable for some other purpose, shall be priced on the basis comparable with
that of items normally used for such other purpose,
3. Premium Prices
Whenever material is not readily obtainable at the prices contemplated by
a Partner for a project (which project has received all necessary approvals as
provided in this Agreement) because of national emergencies, strikes or other
unusual causes over which such Partner has no control, such Partner may charge
for the required material at the premium price (including the cost of making it
suitable for use and of moving it to the System), provided that further approval
therefor has been obtained from the Management Committee.
4. Warranty of Material Furnished
A Partner shall not be required to warrant any material furnished beyond,
or in addition to, the warranty or guaranty of the manufacturer or its agent. In
the case of defective material, credit shall not be passed to the Partnership
until adjustment from such manufacturer or agent has been received by the
Partner.
5. Equipment and Facilities Furnished
B-6
A. A Partner shall charge for the use of its vehicles, equipment and
facilities at rates commensurate with the cost of ownership and operation. Such
rates shall include the cost of operation, maintenance, repairs, insurance,
taxes and other necessary and usual expenses and depreciation. Rates for
automotive equipment shall generally be in line with rates currently prevailing
in the area. Rates for laboratory services shall not exceed those currently
prevailing if performed by outside service laboratories. Rates for trucks and
tractors may include wages and expenses of the operators of such trucks and
tractors.
B. When requested, a Partner shall inform the Management Committee in
advance of the rates it proposes to charge.
C. Rates shall be revised and adjusted from time to time when found to be
either insufficient or excessive by the Management Committee.
Any other provision of this Article III notwithstanding, all materials
furnished from a Partner's warehouse for an amount in excess of $5,000 per item
shall be billed on the basis of competitive bids obtained from at least three
(3) suppliers in the System area.
IV.
DISPOSAL OF MATERIAL
A Partner may purchase, but shall be under no obligation to purchase, the
interest of the Partnership in material which has become surplus material. The
disposition of such surplus material, if not purchased by a Partner, shall be
subject to disposition as directed by the Management Committee, provided, that,
the Project Leader shall dispose of normal accumulations of junk scrap material.
The Project Leader will give notice to the Management Committee of surplus
materials for sale. In connection with the disposal of surplus material, the
following provisions shall apply:
1. Material Purchased by a Partner
Material purchased by a Partner shall be paid for by such Partner in the
month in which the material is removed by such Partner.
2. Sales to Outsiders
Sales of material to outsiders shall be credited by the Project Leader to
the Partnership at the net amount collected by the Project Leader from vendee.
The Project Leader shall take all reasonable and necessary steps to collect such
proceeds. Any claim by vendee related to such sale shall be charged back to the
Partnership if and when paid.
V.
BASIS OF PRICING SURPLUS MATERIAL
B-7
TRANSFERRED TO A PARTNER
Material purchased by a Partner, unless otherwise agreed to between such
Partner and the Management Committee, shall be priced after taking at least
three (3) competitive bids on the following basis:
1. New Price Defined
New price as used in this Part V shall be the price determined for new
material in Part III.
2. New Material
New Material, being material procured for the System but never used - at
one hundred percent (100%) of current new price (plus sales tax, if any).
3. Used Material
A. Used material which is in sound and serviceable condition and suitable
for reuse - at seventy-five percent (75%) of current new price or at such lesser
amount as is agreed upon by the parties.
B. Used material which cannot be classified as being in a sound and
serviceable condition and which is no longer suitable for its original purpose,
but usable for some other purpose - at a price comparable with that of items
normally used for such other purpose, or at such lesser amounts as is agreed
upon by the parties.
C. Junk material, being obsolete and scrap material - at prevailing
prices.
4. Temporarily Used Material
When new material has been used for less than one (1) year and its service
to the System does not justify the reduction in price contemplated by Paragraph
3 of this Part V, such material shall be priced on a basis that will leave a net
charge to the Partner consistent with the value of the service rendered.
B-8
SCHEDULE 4.1
INITIAL CAPITAL ACCOUNT BALANCES
Partner Capital Account Balance
- ------- -----------------------
SWPL <$12,000,000>
EAPC <$ 8,000,000>
SCHEDULE 5.4(A)
SPECIAL REVENUE ALLOCATION BASE AMOUNTS
Fiscal Year Base Amount *
- ----------- -------------
1998 $ 1,345,800
1999 $ 1,284,600
2000 $ 1,225,750
2001 $ 1,164,400
2002 $ 1,103,050
2003 $ 1,045,300
2004 $ 979,100
2005 $ 919,000
2006 $ 857,700
2007 $ 796,300
2008 $ 736,750
2009 $ 672,900
- ------------------
* If a fiscal year is less than 12 months, the Base Amount for such fiscal
year shall be reduced proportionately. For example, if the 1998 fiscal
year is 6 months, the Base Amount of $1,345,800 would be reduced to
$672,900.
SCHEDULE 5.4(B)
SUPPLY RECEIPT POINTS ON NOARK PIPELINE SYSTEM
Receipt Meter Mile Post
- -------------------- ---------
00010 Ft. Chaffee 0.0
00011 SES 0.0
00020 AOG/Prairie 5.7
00021 Kengla/Freedom 5.7
00022 AOG/Lavaca 0.0
00030 Brashears 25.3
00050 AWG 26.3
00060 Huck C.P. 14.4
00070 Dickerson #5 19.5
00101 Xeric 98.6
XXXX AWG (P-282) 21.5
SCHEDULE 5.4(D)
EXAMPLE 1
SPECIAL REVENUE ALLOCATION
Year: 2001
Avg. Daily Quantity of Gas: 275,000 MMBtu per day
Firm Quantity: 175,000 MMBtu per day
Avg. Margin for all other Volume: $0.20/MMBtu
Base Amount = $1,164,400
Increased Volume Amount = (a) - (b)
(a) 275,000 - 175,000 = 100,000 MMBtu per day
times 25% x $0.20 x 365 days per year
= $1,825,000
(b) 244,000 - 175,000 = 69,000 MMBtu per day
times $0.04 x 365 days per year
= $1,007,400
Allocation Amount = $1,164,400 - ($1,825,000 - $1,007,400)
= $1,164,400 - $817,600
$346,800
SCHEDULE 5.4(D)
EXAMPLE 2
SPECIAL REVENUE ALLOCATION
Year: 1999
Avg. Daily Quantity of Gas: 275,000 MMBtu per day
Firm Quantity: 125,000 MMBtu per day
Avg. Margin for all other Volume: $0.15/MMBtu
Base Amount = $1,284,600
Increased Volume Amount = (a) - (b)
(a) 275,000 - 125,000 = 150,000 MMBtu per day
times 25% x $0.16 x 365 days per year
= $2,190,000
(b) 244,000 - 125,000 = 119,000 MMBtu per day
times $0.04 x 365 days per year
= $1,737,400
Allocation Amount = $1,284,600 - ($2,190,000 - $1,737,400)
= $1,284,600 - $452,600
$832,000
SCHEDULE 5.4(D)
EXAMPLE 3
SPECIAL REVENUE ALLOCATION
Year: 2001
Avg. Daily Quantity of Gas: 220,000 MMBtu per day
Firm Quantity: 160,000 MMBtu per day
Avg. Margin for all other Volume: $0.18/MMBtu
Base Amount = $1,164,400
Increased Volume Amount = (a) - (b)
(a) 244,000 - 160,000 = 84,000 MMBtu per day
times 25% x $0.18 x 365 days per year
= $1,379,700
(b) 244,000 - 160,000 = 84,000 MMBtu per day
times $0.04 x 365 days per year
= $1,226,400
Allocation Amount = $1,164,400 - ($1,379,700 - $1,226,400)
= $1,164,400 - $153,300
$1,011,100
SCHEDULE 5.4(D)
EXAMPLE 4
SPECIAL REVENUE ALLOCATION
Year: 1999
Avg. Daily Quantity of Gas: 300,000 MMBtu per day
Firm Quantity: 125,000 MMBtu per day
Avg. Margin for all other Volume: $0.20/MMBtu
Base Amount = $1,284,600
Increased Volume Amount = (a) - (b)
(a) 300,000 - 125,000 = 175,000 MMBtu per day
times 25% x $0.20 x 365 days per year
= $3,193,750
(b) 244,000 - 125,000 = 119,000 MMBtu per day
times $0.04 x 365 days per year
= $1,737,400
Allocation Amount = $1,284,600 - ($3,193,750 - $1,737,400)
= $1,284,600 - $1,456,350
-0-
SCHEDULE 5.4(D)
EXAMPLE 5
SPECIAL REVENUE ALLOCATION
Year: 2001
Avg. Daily Quantity of Gas: 220,000 MMBtu per day
Firm Quantity: 180,000 MMBtu per day
Avg. Margin for all other Volume: $0.14/MMBtu
Base Amount = $1,164,400
Increased Volume Amount = (a) - (b)
(a) 244,000 - 180,000 = 64,000 MMBtu per day
times 25% x $0.16 x 365 days per year
= $934,400
(b) 244,000 - 180,000 = 64,000 MMBtu per day
times $0.04 x 365 days per year
= $934,400
Allocation Amount = $1,164,400 - ($934,400 - $934,400)
= $1,164,400 - $0
$1,164,400
SCHEDULE 6.3(D)
INSURANCE
Primary Insurance. Unless otherwise determined by a SuperMajority in
Interest of the Partners, the following insurance shall be carried and
maintained in force for the benefit of the Partnership, the Project Leader and
the Partners.
1. Workmen's Compensation with Statutory Limits and Employer's Liability
Insurance with $1,000,000 per accident or occupational disease covering
employees engaged in connection with the Partnership or the System, in
compliance with the laws of the State of Oklahoma and Arkansas, as applicable.
2. Comprehensive General Liability Insurance in connection with the
Partnership and the System, with bodily injury and death limits of $500,000 for
injury to or the death of one person and $1,000,000 for the death or injury of
more than one person in one occurrence and property damage limits of $1,000,000
for each occurrence.
3. Automobile Public Liability Insurance with bodily injury or death and
property damage in an amount of at least $1,000,000 combined single limit.
4. Excess Comprehensive General Liability Coverage (including automobile)
in excess of the primary limits of Paragraphs 2 and 3 with limits which are
approved by the Partnership.
5. All risk property coverage in an amount of not less than $50,000,000.
Other Insurance. If requested by the Management Committee and if
available, the following insurance shall be procured on behalf of the
Partnership, the Project Leader and the Partners, and maintained in force for
the benefit of the Partnership, the Project Leader and the Partners; fire and
extended coverage insurance or all risk insurance and other forms of insurance
upon the Partnership and the System, upon the gas it handles and upon operations
pertaining to the Partnership or the System, in such amounts as the Management
Committee may request.
Requirements Relating to Policy. The Partnership, the Project Leader and
the Partners, shall be named insurers on all policies obtained in satisfaction
of this Schedule 6.3(d), and shall be provided with copies of the policies. All
such insurance policies shall provide for material change or cancellation only
after thirty (30) days written notice.
Waiver of Recovery. With respect to claims and losses for damage, injury
or destruction of property, which is a part of the Partnership or the System and
is covered by insurance other than insurance provided for in the first paragraph
of this Schedule 6.3(d), it is agreed that neither the Partnership, nor the
Partners, nor the insurers of either of them, shall have any right of recovery
against the other, and their rights of recovery are mutually waived, except in
cases of gross negligence or willful neglect. All such policies of insurance
purchased to cover the Partnership or the System or any part thereof or any
interest in the Partnership or the System or in any part thereof, or the
Operation of the System or any part thereof, or any gas transported or handled
therein, shall be properly endorsed to effectuate this waiver of recovery;
provided, no such endorsement shall be required if such policies provide for
such waivers if such waivers are in writing and made prior to a claim or loss.
SCHEDULE 6.3(D) (CONTINUED)
INSURANCE
Purchase of Insurance.
1. All insurance under the above headings of Primary Insurance and Other
Insurance shall be purchased by the Partnership, and not by one of the Partners
for the Partnership, unless a Partner is agreeable to purchasing such insurance
and a SuperMajority in Interest of the Partners authorizes such Partner to
acquire such insurance. In such event, such Partner shall be reimbursed for the
cost of such insurance pursuant to the Accounting Procedures.
2. Any Partner shall have the right to purchase insurance, at its expense
without reimbursement from the Partnership, to cover the System, the Partnership
and/or its interest in the Partnership.