EXHIBIT 10
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
This ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT (this "Agreement"),
dated as of November 15, 2002, is entered into by and between Williams GP LLC, a
Delaware limited liability company (the "Company"), WEG GP LLC, a Delaware
limited liability company, ("New GP"), Williams Energy Partners L.P., a Delaware
limited partnership (the "Partnership"), Williams Energy Services, LLC, a
Delaware limited liability company ("WES") and Williams Natural Gas Liquids,
Inc., a Delaware corporation ("WNGL"). Unless otherwise defined herein, any
capitalized terms not defined in this Agreement shall have the meaning assigned
such term in the Second Amended and Restated Agreement of Limited Partnership of
Williams Energy Partners L.P. (the "Partnership Agreement").
RECITALS
WHEREAS, WES and WNGL own all of the outstanding limited liability company
interests in the Company;
WHEREAS, the Company is the sole general partner of the Partnership, and
the sole owner of the General Partner Interest and Incentive Distribution Rights
in the Partnership;
WHEREAS, the Company also owns certain Limited Partner Interests in the
Partnership;
WHEREAS, WES, WNGL and the Company have determined that separation of the
General Partner Interest and Incentive Distribution Rights owned by the Company
from the Limited Partner Interests owned by the Company is in the best interest
of WES, WNGL, the Company and the Partnership;
WHEREAS, Section 4.6 of the Partnership Agreement provides that the
General Partner Interest may be transferred if all, but not less than all, of
such General Partner Interest is transferred to an Affiliate of the General
Partner;
WHEREAS, Section 4.7 of the Partnership Agreement provides that the
Incentive Distribution Rights may be transferred without the consent of
Unitholders to an Affiliate of the General Partner;
WHEREAS, as an administrative convenience and in order to comply with the
requirements of the Partnership Agreement, WES, WNGL and the Company have
determined that the Company will transfer the General Partner Interest and
Incentive Distribution Rights directly to New GP, a newly formed Affiliate of
the Company that is owned by WES and WNGL in the same proportions as they own
the Company, in lieu of (i) distributing the General Partner Interest and
Incentive Distribution Rights to a newly formed holding company for WES' and
WNGL's interests in the Company, and (ii) then contributing the General Partner
Interest and Incentive Distribution Rights to New GP as the holding company's
wholly-owned subsidiary.
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
EXECUTION COPY
ARTICLE I
ASSIGNMENT OF GENERAL PARTNER INTEREST AND INCENTIVE DISTRIBUTION RIGHTS
1.1 Assignment by the Company to New GP. (a) WES and WNGL hereby approve
the Company's transfer of the General Partner Interest and Incentive
Distribution Rights to New GP in lieu of a distribution of the General Partner
Interest to a newly-formed parent of the Company that would then contribute the
General Partner Interest and Incentive Distribution Rights to New GP as its
wholly-owned subsidiary. WES, WNGL and the Company each acknowledges the
adequacy of the consideration received by it for the transfer of the General
Partner Interest and Incentive Distribution Rights to New GP.
(b) The Company hereby grants, distributes, transfers, assigns and conveys
to New GP all right, title and interest in and to one hundred percent (100%) of
the (i) General Partner Interest in the Partnership, being a two percent (2.0%)
general partner interest and (ii) Incentive Distribution Rights in the
Partnership, being all of the Incentive Distribution Rights of the Partnership,
and New GP hereby accepts the General Partner Interest and Incentive
Distribution Rights.
1.2 Habendum. TO HAVE AND TO HOLD the General Partner Interest and
Incentive Distribution Rights unto New GP, its successors and assigns, together
with all and singular the rights and appurtenances thereto in anywise belonging,
subject, however, to the terms and conditions stated in this Agreement, forever.
1.3 Opinion of Counsel. The Partnership acknowledges receipt of the
Opinion of Counsel required in Section 4.6(c) of the Partnership Agreement.
1.4 Further Assurances. From time to time after the date hereof, and
without any further consideration, the Company, WES and WNGL shall execute,
acknowledge and deliver all such additional assignments, instruments, notices,
releases, acquittances and other documents, and will do all such other acts and
things, all in accordance with applicable law, as may be necessary or
appropriate more fully and effectively to assure New GP, its successors and
assigns, all of the properties, rights, titles, interests, estates, remedies,
powers and privileges by this Agreement granted to New GP with respect to the
General Partner Interest and Incentive Distribution Rights or which are intended
so to be and to more fully and effectively carry out the purposes and intent of
this Agreement.
ARTICLE II
SUCCESSION OF GENERAL PARTNER OF THE PARTNERSHIP
2.1 New GP as Successor General Partner of the Partnership. Effective upon
the transfer of the General Partner Interest pursuant to Section 1.1 hereof and
pursuant to Section 4.6 of the Partnership Agreement, New GP agrees to assume
the rights and duties of the General Partner under the Partnership Agreement and
to be bound by the provisions of the Partnership Agreement in accordance with
Sections 4.6 and 10.3 of the Partnership Agreement, and New GP is, effective
immediately prior to the transfer of General Partner Interest, admitted as a
General
Partner of the Partnership. New GP hereby agrees to continue the business of the
Partnership without dissolution.
2.2 Withdrawal of the Company as General Partner of the Partnership.
Effective upon the assignment of the General Partner Interest pursuant to
Section 1.1 hereof and immediately after the admission of New GP as the General
Partner of the Partnership, and pursuant to Sections 10.3 and 11.1(a)(ii) of the
Partnership Agreement, the Company hereby withdraws as a General Partner of the
Partnership.
ARTICLE III
ASSUMPTION OF AND INDEMNIFICATION FOR CERTAIN LIABILITIES
3.1 Assumption of Certain Liabilities and Obligations. In connection with
the assignment of the General Partner Interest and the admission of New GP as
General Partner of the Partnership, New GP hereby assumes and agrees to duly and
timely pay, perform and discharge all liabilities and obligations of a general
partner of the Partnership incurred from the date of this Agreement; provided,
however, that such assumption by New GP is subject to the indemnification
provided in Section 3.2 below.
The Company hereby aggress to retain, pay, perform or discharge all
liabilities and obligations as General Partner of the Partnership incurred prior
to the date of this Agreement to the full extent that the Company, as General
Partner, has been or would have been in the future, were it not for the
execution of this Agreement, obligated to pay, perform and discharge.
3.2 Indemnification of New GP. Upon the transfer of the General Partner
Interest to New GP pursuant to Section 1.1 hereof, the Company hereby
indemnifies, defends and holds harmless New GP from and against any and all
claims, demands, costs liabilities and expenses (including court costs and
reasonable attorney's fees) arising from or relating to any liability of New GP,
whether as General Partner of the Partnership or pursuant to the assumption by
New GP of liabilities and obligations of the Partnership pursuant to Section 3.1
hereof, for liabilities of the Partnership existing at the time of the
assignment of the General Partner Interest to New GP pursuant to Section 1.1.
ARTICLE IV
AMENDMENTS TO THE PARTNERSHIP AGREEMENT
4.1 Amendments to the Partnership Agreement. In order further to implement
this Agreement, New GP, as General Partner of the Partnership, having determined
the following amendment would not adversely affect the Limited Partners
(including any particular class of Partnership Interests as compared to other
classes of Partnership Interests) in any material respect, hereby exercises its
rights and powers to amend the Partnership Agreement without the approval of any
Limited Partner or Assignee pursuant to Section 13.1(d)(i) of the Partnership
Agreement. Pursuant to Section 13.1(d)(i) of the Partnership Agreement,
references in the Partnership Agreement to the General Partner are hereby
amended to the extent applicable, to refer to "WEG GP LLC and its successors and
permitted assigns as general partner of the Partnership."
ARTICLE V
MISCELLANEOUS
5.1 Other Assurances. From time to time after the date hereof, and without
any further consideration, each of the parties to this Agreement shall execute,
acknowledge and deliver all such additional instruments, notices and other
documents, and will do all such other acts and things, all in accordance with
applicable law, as may be necessary or appropriate to more fully and effectively
carry out the purposes and intent of this Agreement.
5.2 Costs. The Partnership shall pay all sales, use and similar taxes
arising out of the contributions, assignments and deliveries to be made
hereunder, and shall pay all documentary, filing, recording, transfer, deed and
conveyance taxes and fees required in connection therewith.
5.3 Headings; References; Interpretation. All Article and Section headings
in this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any of the provisions hereof. All
references herein to Articles and Sections shall, unless the context requires a
different construction, be deemed to be references to the Articles and Sections
of this Agreement, respectively. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders, and the singular shall include the plural and vice versa. The use
herein of the word "including" following any general statement, term or matter
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not non-limiting language (such as "without limitation,"
"but not limited to," or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that
could reasonably fall within the broadest possible scope of such general
statement, term or matter.
5.4 Successors and Assigns. The Agreement shall be binding upon and inure
to the benefit of the parties signatory hereto and their respective successors
and assigns.
5.5 No Third Party Rights. The provisions of this Agreement are intended
to bind the parties signatory hereto as to each other and are not intended to
and do not create rights in any other Person or confer upon any other Person any
benefits, rights or remedies and no Person is or is intended to be a third party
beneficiary of any of the provisions of this Agreement.
5.6 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties to this Agreement.
5.7 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware applicable to contracts made
and to be performed wholly within such state without giving effect to conflict
of law principles thereof.
5.8 Severability. If any of the provisions of this Agreement are held by
any court of competent jurisdiction to contravene, or to be invalid under, the
laws of any political body having jurisdiction over the subject matter hereof,
such contravention or invalidity shall not invalidate the entire Agreement.
Instead, this Agreement shall be construed as if it did not contain the
particular provision or provisions held to be invalid, and an equitable
adjustment
shall be made and necessary provision added so as to give effect to the
intention of the parties as expressed in this Agreement at the time of execution
of this Agreement.
5.9 Amendment or Modification. This Agreement may be amended or modified
from time to time only by the written agreement of all the parties hereto.
5.10 Integration. This Agreement, together with the Partnership Agreement,
supersedes all previous understandings or agreements between the parties,
whether oral or written, with respect to its subject matter. This document,
together with the Partnership Agreement, is an integrated agreement which
contains the entire understanding of the parties. No understanding,
representation, promise or agreement, whether oral or written, is intended to be
or shall be included in or form part of this Agreement or the Partnership
Agreement unless it is contained in a written amendment hereto or to the
Partnership Agreement executed by the parties hereto after the date of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
WILLIAMS GP LLC
By: /s/ DON R. WELLENDORF
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Name: Don R. Wellendorf
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Title: President and Chief Executive Officer
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WEG GP LLC
By: /s/ DON R. WELLENDORF
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Name: Don R. Wellendorf
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Title: President and Chief Executive Officer
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WILLIAMS ENERGY PARTNERS L.P.
By: Williams GP LLC, its general partner
By: /s/ DON R. WELLENDORF
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Name: Don R. Wellendorf
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Title: President and Chief Executive Officer
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WILLIAMS ENERGY SERVICES, LLC
By: /s/ PHILLIP D. WRIGHT
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Name: Phillip D. Wright
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Title: President and Chief Executive Officer
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WILLIAMS NATURAL GAS LIQUIDS, INC.
By: /s/ PHILLIP D. WRIGHT
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Name: Phillip D. Wright
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Title: Chairman of the Board, CEO and President
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