EXHIBIT 10.1
AMENDMENT NO. 1 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
WILLIAMS ENERGY PARTNERS L.P.
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF WILLIAMS ENERGY PARTNERS L.P. (this "Amendment"), dated as of
April 11, 2002, is entered into and effectuated by Williams GP LLC, a Delaware
limited liability company, as the General Partner, pursuant to authority granted
to it in Section 5.6 of the Amended and Restated Agreement of Limited
Partnership of Williams Energy Partners L.P., dated as of February 9, 2001, as
amended (the "Partnership Agreement"). Capitalized terms used but not defined
herein are used as defined in the Partnership Agreement.
WHEREAS, Section 5.6 of the Partnership Agreement provides that the
General Partner, without the approval of any Limited Partners, may issue
additional Partnership Securities, or classes or series thereof, for any
Partnership purpose at any time and from time to time, and may issue such
Partnership Securities for such consideration and on such terms and conditions
as shall be established by the General Partner in its sole discretion; and
WHEREAS, Section 13.1 of the Partnership Agreement provides that the
General Partner, without the approval of any Partner (subject to the provisions
of Section 5.7 of the Partnership Agreement), may amend any provision of the
Partnership Agreement necessary or advisable in connection with the
authorization of issuance of any class or series of Partnership Securities
pursuant to Section 5.6 of the Partnership Agreement; and
WHEREAS, the General Partner deems it in the best interest of the
Partnership to effect this Amendment in order to provide for (i) the issuance of
the Class B Common Units to the General Partner in connection with the
contribution by the General Partner to the Partnership or its affiliate of all
of the membership interest in Williams Pipe Line Company, LLC pursuant to a
Contribution Agreement, dated as of the date hereof, among the General Partner,
the Partnership and Williams Energy Services, LLC and (ii) the redemption of the
Class B Common Units or, alternatively, for the exchange in accordance with the
terms described herein of the Class B Common Units for Common Units; and
WHEREAS, the Partnership is concurrently entering into a Credit
Agreement, dated as of the date hereof, between the Partnership, Williams Pipe
Line Company, LLC and certain lenders whereby such lenders have agreed to loan
the Partnership and Williams Pipe Line Company, LLC, as co-borrowers, an
aggregate of $700 million;
NOW, THEREFORE, the Partnership Agreement is hereby amended as follows:
1. Section 1.1 is hereby amended to add the following definition:
"Bank Loan" means the loan evidenced by the Credit Agreement, dated as
of the date hereof, among Williams Pipe Line Company, LLC, Williams Energy
Partners L.P., Bank of
Exhibit 10.1 - Amendment 1 to Amended Restated LP Agreement - conformed copy
America, N.A., Lehman Commercial Paper, Inc., Salomon Smith Barney, Inc., J.P.
Morgan Securities, Inc., and Merrill Lynch and Co., as the same may be extended,
amended and restated.
2. Section 1.1 is hereby amended to:
(a) add the following proviso to the end of the definition of
"Outstanding":
"; and provided, further, that none of the Class B Common
Units shall be deemed to be Outstanding for purposes of
determining if any Class B Common Units are entitled to
distributions of Available Cash unless such Class B Common
Units shall have been reflected on the books of the
Partnership as outstanding during such Quarter and on the
Record Date for the determination of any distribution of
Available Cash."
(b) add the following paragraph to the end of the definition of
"Subordination Period":
"Notwithstanding any of the provisions of clause (a) of this
definition, no Class B Common Unit shall be deemed Outstanding
in any Quarter if (1) such Class B Unit was issued after the
end of such Quarter or (2) such Class B Common Unit has been
redeemed by the Partnership prior to the Record Date for the
determination of any distributions of Available Cash from
Operating Surplus on the Class B Common Units for such
Quarter."
3. Section 5.2(b) of the Partnership Agreement is amended by changing the first
sentence thereof to read in its entirety as follows:
(b) Upon the issuance of any additional Limited Partner Interests by
the Partnership (other than the issuance of the Common Units issued in the
Initial Offering or pursuant to the Over-Allotment Option), the General Partner
shall be required to make additional Capital Contributions equal to 2% of any
amount contributed to the Partnership by the Limited Partners in exchange for
such additional Limited Partner Interests, but only to the extent necessary such
that the General Partner's Capital Account is equal to 2% of the total of all
Capital Accounts following such issuance.
4. Article V is hereby amended to add a new Section 5.12 creating a new series
of Units as follows:
Section 5.12 Establishment of Class B Common Units.
(a) The General Partner hereby designates and creates a series of
Units to be designated as "Class B Common Units" and consisting of a
total of [ ] Class B Common Units, and fixes the designations,
preferences and relative, participating, optional or other special
rights, powers and duties of holders of the Class B Units as set forth
in this Section 5.12.
(b) Each Class B Common Unit shall be convertible from time to
time, in whole or in part, at the option of the holders thereof, into
one Common Unit from and after such date as the Partnership has been
advised by the New York Stock Exchange that the Common
Exhibit 10.1 - Amendment 1 to Amended Restated LP Agreement - conformed copy 2
Units issuable upon any such conversion are eligible for listing on
the New York Stock Exchange. The General Partner will promptly notify
the holders of the Class B Common Units upon receipt of such advice.
Upon written notice to the General Partner from the holders of at
least a majority of the Outstanding Class B Common Units (a "Notice of
Intent to Convert") given not earlier than one year after the date of
this Amendment, the General Partner will use its reasonable best
efforts to cause the Partnership to meet any unfulfilled requirements
of the New York Stock Exchange for such listing, including obtaining
such approval of the Unitholders as may be required by the New York
Stock Exchange for the issuance of the Common Units, issuable upon
conversion of the Class B Common Units. If, 120 days after the date of
the Notice of Intent to Convert, the Common Units issuable upon such
conversion have not been approved for listing on the New York Stock
Exchange, then the terms of the Class B Common Units will be changed
so that each Class B Common Unit will become entitled to receive
quarterly cash distributions in an amount equal to 115% of the
quarterly cash distribution amount payable with respect to each Common
Unit. The Class B Common Units will not have the privilege of
conversion except as provided in this Section 5.12.
(c) After the repayment in full of the Bank Loan, the Partnership
may redeem the Class B Common Units for cash at any time by giving
notice in writing to the holders of the Class B Common Units (a
"Mandatory Redemption Notice") of the Partnership's intent to redeem
the Class B Common Units. Any Outstanding Class B Common Units to be
redeemed shall be redeemed as of the 30th day following date of such
Mandatory Redemption Notice unless such day is not a Business Day in
which case all such Outstanding Class B Common Units shall be redeemed
on the next Business Day following such 30th day.
(d) Upon any request by the General Partner or any of its
Affiliates to register all or any part of the Class B Common Units
pursuant to Section 7.12, the Class B Common Units for which
registration is so requested may be redeemed by the Partnership at its
election. The Partnership shall exercise its option to redeem the Class
B Common Units under this Section 5.12(d) by mailing written notice
thereof to the holders of the Class B Common Units for which
registration is so requested. Such notice shall be given not later than
15 days after the receipt by the General Partner of such registration
request and shall fix a date for redemption of such Class B Common
Units not less than 30 nor more than 60 days after the date of such
notice.
(e) Any redemption under Section 5.12(c) or Section 5.12(d) shall
be for a cash redemption price equal to the Current Market Price per
Common Unit as of the date fixed for redemption.
(f) Before any holder of Class B Common Units shall be entitled to
receive any redemption payment or to convert such holder's Class B
Common Units into Common Units, as the case may be, the holder shall
surrender the Certificates evidencing the Class B Common Units, duly
endorsed, at the office of the General Partner or of any transfer agent
for the Class B Common Units. In the case of any such conversion, the
Partnership shall, as soon as practicable thereafter, issue and deliver
at such office to such holder of Class B Common Units one or more
Certificates evidencing Common Units, registered in
Exhibit 10.1 - Amendment 1 to Amended Restated LP Agreement - conformed copy 3
the name of such holder, for the number of Common Units to which the
holder shall be entitled. Such conversion shall be deemed to have been
made as of the date of the surrender of the Class B Common Units to be
converted, and the person entitled to receive the Common Units
issuable upon such conversion shall be treated for all purposes as the
record holder of such Common Units on said date.
(g) From and after a redemption date (unless default shall be made
by the Partnership in providing money for the payment of the redemption
price), the Class B Common Units redeemed shall no longer be deemed
Outstanding, and all rights of the holders thereof as Partners in the
Partnership (except the right to receive from the Partnership the
redemption price) shall cease. Class B Common Units redeemed pursuant
to Section 5.12(c) or 5.12(d) shall be restored to the status of
authorized but unissued Units, without designation as to class.
(h) Except as otherwise provided in this Agreement, each Class B
Common Unit shall be identical to a Common Unit, and the holder of a
Class B Common Unit shall have the rights of a holder of a Common Unit
with respect to, without limitation, Partnership distributions, voting
and allocations of income, gain, loss or deductions; provided, however,
that during the period in which any portion of the Bank Loan is
outstanding, the Class B Common Units will not be paid a distribution
of any kind. Upon the repayment in full of the Bank Loan, the holders
of the Outstanding Class B Common Units will be entitled to receive a
distribution of Available Cash equal to the distributions of Available
Cash that were paid on or declared payable to the Common Units during
the term of the Bank Loan. Except as otherwise provided in this
Agreement, all Units shall vote or consent together as a single class
on all matters submitted for a vote or consent of the Outstanding
Units.
(i) The Class B Common Units will have voting rights that are
identical to the voting rights of the Common Units and will vote with
the Common Units as a single class, so that each Class B Common Unit
will be entitled to one vote on each matter with respect to which each
Common Unit is entitled to vote; provided, however, that the Class B
Common Units shall not be entitled to vote and shall not be deemed
outstanding for purposes of determining a quorum, with respect to
matters in which the requisite vote is determined by New York Stock
Exchange rules or New York Stock Exchange staff interpretations of such
rules for listing of the Common Units; each reference in the
Partnership Agreement to a vote of holders of Common Units shall be
deemed to be a reference to the holders of Common Units and Class B
Common Units.
(j) The Certificates evidencing Class B Common Units shall be
separately identified and shall not bear the same CUSIP number as the
Certificates evidencing Common Units.
Exhibit 10.1 - Amendment 1 to Amended Restated LP Agreement - conformed copy 4
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
WILLIAMS GP LLC
General Partner
By: /s/ Don R. Wellendorf
---------------------------------
Name: Don R. Wellendorf
Title: Senior Vice President
Exhibit 10.1 - Amendment 1 to Amended Restated LP Agreement - conformed copy 5