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Agreement of Limited Partnership [Amended and Restated No. 2]
Agreement of Limited Partnership [Amended and Restated No. 2] (381K)
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SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WILLIAMS ENERGY PARTNERS L.P.
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions................................................................................. 5
Section 1.2. Construction................................................................................ 24
ARTICLE II. ORGANIZATION
Section 2.1. Formation................................................................................... 25
Section 2.2. Name........................................................................................ 25
Section 2.3. Registered Office; Registered Agent; Principal Office; Other Offices........................ 25
Section 2.4. Purpose and Business........................................................................ 25
Section 2.5. Powers...................................................................................... 26
Section 2.6. Power of Attorney........................................................................... 26
Section 2.7. Term........................................................................................ 27
Section 2.8. Title to Partnership Assets................................................................. 28
Section 2.9. Certain Undertakings Relating to the Separateness of the Partnership........................ 28
ARTICLE III.
RIGHTS OF LIMITED PARTNERS
Section 3.1. Limitation of Liability..................................................................... 29
Section 3.2. Management of Business...................................................................... 29
Section 3.3. Outside Activities of the Limited Partners.................................................. 30
Section 3.4. Rights of Limited Partners.................................................................. 30
ARTICLE IV.
CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS;
REDEMPTION OF PARTNERSHIP INTERESTS
Section 4.1. Certificates................................................................................ 31
Section 4.2. Mutilated, Destroyed, Lost or Stolen Certificates........................................... 31
Section 4.3. Record Holders.............................................................................. 32
Section 4.4. Transfer Generally.......................................................................... 32
Section 4.5. Registration and Transfer of Limited Partner Interests...................................... 33
Section 4.6. Transfer of the General Partner's General Partner Interest.................................. 34
Section 4.7. Transfer of Incentive Distribution Rights................................................... 34
Section 4.8. Restrictions on Transfers................................................................... 35
Section 4.9. Citizenship Certificates; Non-citizen Assignees............................................. 36
Section 4.10. Redemption of Partnership Interests of Non-citizen Assignees................................ 36
ARTICLE V.
CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS
Section 5.1. Organizational Contributions................................................................ 38
Section 5.2. Contributions by the General Partner and its Affiliates..................................... 38
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Section 5.3. Contributions by Initial Limited Partners and Reimbursement of the General Partner.......... 39
Section 5.4. Interest and Withdrawal..................................................................... 39
Section 5.5. Capital Accounts............................................................................ 40
Section 5.6. Issuances of Additional Partnership Securities.............................................. 42
Section 5.7. Limitations on Issuance of Additional Partnership Securities................................ 43
Section 5.8. Conversion of Subordinated Units............................................................ 45
Section 5.9. Limited Preemptive Right.................................................................... 47
Section 5.10. Splits and Combination...................................................................... 47
Section 5.11. Fully Paid and Non-Assessable Nature of Limited Partner Interests........................... 48
Section 5.12. Establishment of Class B Common Units....................................................... 48
ARTICLE VI.
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1. Allocations for Capital Account Purposes.................................................... 50
Section 6.2. Allocations for Tax Purposes................................................................ 58
Section 6.3. Requirement and Characterization of Distributions; Distributions to Record Holders.......... 60
Section 6.4. Distributions of Available Cash from Operating Surplus...................................... 60
Section 6.5. Distributions of Available Cash from Capital Surplus........................................ 62
Section 6.6. Adjustment of Minimum Quarterly Distribution and Target Distribution Levels................. 63
Section 6.7. Special Provisions Relating to the Holders of Subordinated Units............................ 63
Section 6.8. Special Provisions Relating to the Holders of Incentive Distribution Rights................. 64
Section 6.9. Entity-Level Taxation....................................................................... 64
ARTICLE VII.
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1. Management.................................................................................. 64
Section 7.2. Certificate of Limited Partnership.......................................................... 66
Section 7.3. Restrictions on General Partner's Authority................................................. 67
Section 7.4. Reimbursement of the General Partner........................................................ 68
Section 7.5. Outside Activities.......................................................................... 69
Section 7.6. Loans from the General Partner; Loans or Contributions from the Partnership;
Contracts with Affiliates; Certain Restrictions on the General Partner...................... 70
Section 7.7. Indemnification............................................................................. 71
Section 7.8. Liability of Indemnitees.................................................................... 73
Section 7.9. Resolution of Conflicts of Interest......................................................... 74
Section 7.10. Other Matters Concerning the General Partner................................................ 75
Section 7.11. Purchase or Sale of Partnership Securities.................................................. 76
Section 7.12. Registration Rights of the General Partner and its Affiliates............................... 76
Section 7.13. Reliance by Third Parties................................................................... 78
ARTICLE VIII.
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 8.1. Records and Accounting...................................................................... 79
Section 8.2. Fiscal Year................................................................................. 79
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Section 8.3. Reports..................................................................................... 79
ARTICLE IX.
TAX MATTERS
Section 9.1. Tax Returns and Information................................................................. 80
Section 9.2. Tax Elections............................................................................... 80
Section 9.3. Tax Controversies........................................................................... 80
Section 9.4. Withholding................................................................................. 80
ARTICLE X.
ADMISSION OF PARTNERS
Section 10.1. Admission of Initial Limited Partners....................................................... 81
Section 10.2. Admission of Substituted Limited Partner.................................................... 81
Section 10.3. Admission of Successor General Partner...................................................... 82
Section 10.4. Admission of Additional Limited Partners.................................................... 82
Section 10.5. Amendment of Agreement and Certificate of Limited Partnership............................... 82
ARTICLE XI.
WITHDRAWAL OR REMOVAL OF PARTNERS
Section 11.1. Withdrawal of the General Partner........................................................... 82
Section 11.2. Removal of the General Partner.............................................................. 84
Section 11.3. Interest of Departing Partner and Successor General Partner................................. 85
Section 11.4. Termination of Subordination Period, Conversion of Subordinated
Units and Extinguishment of Cumulative Common Unit Arrearages............................... 86
Section 11.5. Withdrawal of Limited Partners.............................................................. 86
ARTICLE XII.
DISSOLUTION AND LIQUIDATION
Section 12.1. Dissolution................................................................................. 86
Section 12.2. Continuation of the Business of the Partnership After Dissolution........................... 87
Section 12.3. Liquidator.................................................................................. 88
Section 12.4. Liquidation................................................................................. 88
Section 12.5. Cancellation of Certificate of Limited Partnership.......................................... 89
Section 12.6. Return of Contributions..................................................................... 89
Section 12.7. Waiver of Partition......................................................................... 89
Section 12.8. Capital Account Restoration................................................................. 89
ARTICLE XIII.
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE
Section 13.1. Amendment to be Adopted Solely by the General Partner....................................... 90
Section 13.2. Amendment Procedures........................................................................ 91
Section 13.3. Amendment Requirements...................................................................... 92
Section 13.4. Special Meetings............................................................................ 93
Section 13.5. Notice of a Meeting......................................................................... 93
Section 13.6. Record Date................................................................................. 93
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Section 13.7. Adjournment................................................................................. 93
Section 13.8. Waiver of Notice; Approval of Meeting; Approval of Minutes.................................. 94
Section 13.9. Quorum...................................................................................... 94
Section 13.10. Conduct of a Meeting........................................................................ 95
Section 13.11. Action Without a Meeting.................................................................... 95
Section 13.12. Voting and Other Rights..................................................................... 96
ARTICLE XIV.
MERGER
Section 14.1. Authority................................................................................... 96
Section 14.2. Procedure for Merger or Consolidation....................................................... 96
Section 14.3. Approval by Limited Partners of Merger or Consolidation..................................... 97
Section 14.4. Certificate of Merger....................................................................... 98
Section 14.5. Effect of Merger............................................................................ 98
ARTICLE XV.
RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
Section 15.1. Right to Acquire Limited Partner Interests.................................................. 99
ARTICLE XVI.
GENERAL PROVISIONS
Section 16.1. Addresses and Notices....................................................................... 100
Section 16.2. Further Action.............................................................................. 101
Section 16.3. Binding Effect.............................................................................. 101
Section 16.4. Integration................................................................................. 101
Section 16.5. Creditors................................................................................... 101
Section 16.6. Waiver...................................................................................... 102
Section 16.7. Counterparts................................................................................ 102
Section 16.8. Applicable Law.............................................................................. 102
Section 16.9. Invalidity of Provisions.................................................................... 102
Section 16.10. Consent of Partners......................................................................... 102
Section 16.11. Amendments to Reflect GP Reorganization Agreement........................................... 102
{/TABLE}
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{PAGE}
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WILLIAMS ENERGY PARTNERS L.P.
[NOTE: APPROPRIATE CHANGES WILL BE MADE WHEN THE GENERAL PARTNER INTEREST IS
TRANSFERRED TO A NEW GP.]
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
WILLIAMS ENERGY PARTNERS L.P. dated as of ___________ __, 2002, is entered into
by and among Williams GP LLC, a Delaware limited liability company, as the
General Partner, and Williams GP LLC, as the lawful agent and attorney-in-fact
for the Limited Partners, together with any other Persons who become Partners in
the Partnership or parties hereto as provided herein.
WHEREAS, the General Partner and the other parties thereto entered into
that certain Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of February 9, 2001 (the "2001 Agreement");
WHEREAS, the General Partner and the other parties thereto entered into
that certain Reorganization Agreement (the "GP Reorganization Agreement"), dated
as of March 4, 2002, pursuant to which the General Partner transferred its
general partner interest in the Operating Partnership to the Operating General
Partner;
WHEREAS, the General Partner effected Amendment No. 1 to the 2001
Agreement on April 11, 2002 to provide for the issuance of Class B Common Units;
WHEREAS, the General Partner desires to amend and restate the 2001
Agreement in its entirety to reflect each of the foregoing amendments together
with such other changes as the General Partner has determined are necessary and
appropriate; and
WHEREAS, Section 13.1 of the 2001 Agreement permits the General Partner,
without the approval of any Limited Partner or Assignee, to amend the 2001
Agreement to effect the intent hereof.
NOW, THEREFORE, the General Partner does hereby amend and restate the 2001
Agreement to provide, in its entirety, as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions.
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"Acquisition" means any transaction in which any Group Member acquires
(through an asset acquisition, merger, stock acquisition or other form of
investment) control over all or a
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portion of the assets, properties or business of another Person for the purpose
of increasing the operating capacity or revenues of the Partnership Group from
the operating capacity or revenues of the Partnership Group existing immediately
prior to such transaction.
"Additional Book Basis" means the portion of any remaining Carrying Value
of an Adjusted Property that is attributable to positive adjustments made to
such Carrying Value as a result of Book-Up Events. For purposes of determining
the extent that Carrying Value constitutes Additional Book Basis:
(i) Any negative adjustment made to the Carrying Value of an
Adjusted Property as a result of either a Book-Down Event or a Book-Up
Event shall first be deemed to offset or decrease that portion of the
Carrying Value of such Adjusted Property that is attributable to any prior
positive adjustments made thereto pursuant to a Book-Up Event or Book-Down
Event.
(ii) If Carrying Value that constitutes Additional Book Basis is
reduced as a result of a Book-Down Event and the Carrying Value of other
property is increased as a result of such Book-Down Event, an allocable
portion of any such increase in Carrying Value shall be treated as
Additional Book Basis; provided that the amount treated as Additional Book
Basis pursuant hereto as a result of such Book-Down Event shall not exceed
the amount by which the Aggregate Remaining Net Positive Adjustments after
such Book-Down Event exceeds the remaining Additional Book Basis
attributable to all of the Partnership's Adjusted Property after such
Book-Down Event (determined without regard to the application of this
clause (ii) to such Book-Down Event).
"Additional Book Basis Derivative Items" means any Book Basis Derivative
Items that are computed with reference to Additional Book Basis. To the extent
that the Additional Book Basis attributable to all of the Partnership's Adjusted
Property as of the beginning of any taxable period exceeds the Aggregate
Remaining Net Positive Adjustments as of the beginning of such period (the
"Excess Additional Book Basis"), the Additional Book Basis Derivative Items for
such period shall be reduced by the amount that bears the same ratio to the
amount of Additional Book Basis Derivative Items determined without regard to
this sentence as the Excess Additional Book Basis bears to the Additional Book
Basis as of the beginning of such period.
"Additional Limited Partner" means a Person admitted to the Partnership as
a Limited Partner pursuant to Section 10.4 and who is shown as such on the books
and records of the Partnership.
"Adjusted Capital Account" means the Capital Account maintained for each
Partner as of the end of each fiscal year of the Partnership, (a) increased by
any amounts that such Partner is obligated to restore under the standards set by
Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is deemed obligated to
restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and (b)
decreased by (i) the amount of all losses and deductions that, as of the end of
such fiscal year, are reasonably expected to be allocated to such Partner in
subsequent years under Sections 704(e)(2) and 706(d) of the Code and Treasury
Regulation Section 1.751-1(b)(2)(ii), and (ii) the amount of all distributions
that, as of the end of such fiscal year, are reasonably expected to be made to
such Partner in subsequent years in accordance with the terms
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 J.P. Morgan
As referenced in this Agreement of Limited Partnership [Amended and Restated No. 2]:
J.P. Morgan Securities, – Williams Pipe Line Company, LLC, Williams Energy Partners
L.P., Bank of 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.
"Book Basis Derivative Items" means any item
_____________
dt 98014
;
Energy Partners
As referenced in this Agreement of Limited Partnership [Amended and Restated No. 2]:
ENERGY PARTNERS L – EX-10.3
{SEQUENCE}5
{FILENAME}d01268exv10w3.txt
{DESCRIPTION}SECOND AMENDED/RESTATED AGREEMENT OF LP
{TEXT}
{PAGE}
EXHIBIT 10.3
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WILLIAMS ENERGY PARTNERS L .P.
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions................................................................................. 5
Section 1.2. Construction................................................................................ 24
ARTICLE II. ORGANIZATION
Section 2.1. Formation................................................................................... 25
_____________
ENERGY PARTNERS L – Section 16.10. Consent of Partners......................................................................... 102
Section 16.11. Amendments to Reflect GP Reorganization Agreement........................................... 102
{/TABLE}
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{PAGE}
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WILLIAMS ENERGY PARTNERS L .P.
[NOTE: APPROPRIATE CHANGES WILL BE MADE WHEN THE GENERAL PARTNER INTEREST IS
TRANSFERRED TO A NEW GP.]
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
WILLIAMS
_____________
ENERGY PARTNERS L – L.P.
[NOTE: APPROPRIATE CHANGES WILL BE MADE WHEN THE GENERAL PARTNER INTEREST IS
TRANSFERRED TO A NEW GP.]
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
WILLIAMS ENERGY PARTNERS L .P. dated as of ___________ __, 2002, is entered into
by and among Williams GP LLC, a Delaware limited liability company, as the
General Partner, and Williams GP LLC,
_____________
Energy Partners L – separate property on a basis proportional to the fair market value of
each Contributed Property.
-7-
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"Agreement" means this Second Amended and Restated Agreement of Limited
Partnership of Williams Energy Partners L .P., as it may be amended, supplemented
or restated from time to time.
"Assignee" means a Non-citizen Assignee or a Person to whom one or more
Limited Partner
_____________
Energy Partners
L – subsequent Quarter
shall equal zero.
-8-
{PAGE}
"Bank Loan" means the loan evidenced by the Credit Agreement, dated as of
April 11, 2002, among Williams Pipe Line Company, LLC, Williams Energy Partners
L .P., Bank of 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
_____________
dt 1527751
;
Williams
As referenced in this Agreement of Limited Partnership [Amended and Restated No. 2]:
Williams Companies, Inc. – of Election to Purchase" has the meaning assigned to such term in
Section 15.1(b).
"Omnibus Agreement" means that Omnibus Agreement, dated as of the Closing
Date, among The Williams Companies, Inc. , Williams Energy Services, LLC,
Williams Natural Gas Liquids, Inc., Williams Pipe Line Company, LLC, Williams
Information Services Corporation, the General Partner, the Partnership and the
Operating Partnership, as such
_____________
Williams Companies, Inc. – of 1933, as amended,
supplemented or restated from time to time and any successor to such statute.
"Services Agreement" means that Operating Services Agreement, dated as of
_________________ among The Williams Companies, Inc. , the General Partner, and
various of their Affiliates, as such agreement may be amended, supplemented or
restated from time to time.
"Share of Additional Book Basis Derivative Items" means
_____________
Williams Companies Inc. – except its
Subsidiaries, (iii) hold out its credit as being available to satisfy the
obligations of any other Person, except its Subsidiaries, (iv) acquire
obligations or debt securities of The Williams Companies Inc. , a Delaware
corporation and its Subsidiaries and Affiliates (other than the
Partnership or its Subsidiaries), or (v) pledge
-28-
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its assets for the benefit of any Person or
_____________
Williams Companies, Inc. – any Group Member
and (iii) except to the extent permitted in the Omnibus Agreement, shall not,
and shall cause its Affiliates not to, engage in any Restricted Business.
(b) The Williams Companies, Inc. and certain of its Affiliates have
entered into the Omnibus Agreement with the Partnership and the Operating
Partnership, which agreement sets forth certain restrictions on the ability of
The
_____________
Williams Companies, Inc. – Inc. and certain of its Affiliates have
entered into the Omnibus Agreement with the Partnership and the Operating
Partnership, which agreement sets forth certain restrictions on the ability of
The Williams Companies, Inc. and its Affiliates to engage in Restricted
Businesses.
(c) Except as specifically restricted by Section 7.5(a) and the
Omnibus Agreement, each Indemnitee (other than the General Partner)
_____________
dt 1475739
;
|
Williams
As referenced in this Agreement of Limited Partnership [Amended and Restated No. 2]:
Williams Companies, Inc. – of Election to Purchase" has the meaning assigned to such term in
Section 15.1(b).
"Omnibus Agreement" means that Omnibus Agreement, dated as of the Closing
Date, among The Williams Companies, Inc. , Williams Energy Services, LLC,
Williams Natural Gas Liquids, Inc., Williams Pipe Line Company, LLC, Williams
Information Services Corporation, the General Partner, the Partnership and the
Operating Partnership, as such
_____________
Williams Companies, Inc. – of 1933, as amended,
supplemented or restated from time to time and any successor to such statute.
"Services Agreement" means that Operating Services Agreement, dated as of
_________________ among The Williams Companies, Inc. , the General Partner, and
various of their Affiliates, as such agreement may be amended, supplemented or
restated from time to time.
"Share of Additional Book Basis Derivative Items" means
_____________
Williams Companies, Inc. – any Group Member
and (iii) except to the extent permitted in the Omnibus Agreement, shall not,
and shall cause its Affiliates not to, engage in any Restricted Business.
(b) The Williams Companies, Inc. and certain of its Affiliates have
entered into the Omnibus Agreement with the Partnership and the Operating
Partnership, which agreement sets forth certain restrictions on the ability of
The
_____________
Williams Companies, Inc. – Inc. and certain of its Affiliates have
entered into the Omnibus Agreement with the Partnership and the Operating
Partnership, which agreement sets forth certain restrictions on the ability of
The Williams Companies, Inc. and its Affiliates to engage in Restricted
Businesses.
(c) Except as specifically restricted by Section 7.5(a) and the
Omnibus Agreement, each Indemnitee (other than the General Partner)
_____________
Williams Companies, Inc. – election to dissolve the Partnership by the General Partner
that is approved by the holders of a Unit Majority and, if the General Partner
is then an Affiliate of The Williams Companies, Inc. , a Delaware corporation,
after obtaining Special Approval;
(c) the entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Delaware Act; or
(d)
_____________
dt 1475854
;
BofA
As referenced in this Agreement of Limited Partnership [Amended and Restated No. 2]:
Bank of America, – of
April 11, 2002, among Williams Pipe Line Company, LLC, Williams Energy Partners
L.P., Bank of America, N.A., Lehman Commercial Paper, Inc., Salomon Smith
Barney, Inc., J.P. Morgan Securities,
dt 40010
;
More... |
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Full Doc
| 2003 |
Limited Liability Company Agreement [Amended and Restated No. 3]
Limited Liability Company Agreement [Amended and Restated No. 3] (85K)
Doc #174630: Click preview link for longer preview.
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
PENN VIRGINIA RESOURCE GP, LLC
THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this Agreement) of Penn Virginia Resource GP, LLC, a Delaware limited liability company (the Company), dated as of the 19th day of December 2002 (the Effective Date), between Penn Virginia Resource GP Corp., a Delaware corporation and the managing member of the Company (the Managing Member), and Peabody Energy Corporation, a Delaware corporation and the special member of the Company (the Special Member).
RECITALS:
WHEREAS, Penn Virginia Holding Corp, a Delaware corporation (Holding), caused the Company, originally named Penn Virginia GP, LLC, to be formed as a limited liability company under the Delaware Limited Liability Company Act (the Act) on July 9, 2001 (the Original Filing Date) and a Certificate of Formation (the Delaware Certificate) was filed with the Secretary of State of the State of Delaware on such date;
WHEREAS, Holding entered into a Limited Liability Company Agreement relating to the Company on July 9, 2001;
WHEREAS, Holding entered into a First Amended and Restated Limited Liability Company Agreement relating to the Company on July 17, 2001 to, among other things, provide for a board of directors and officers of the Company;
WHEREAS, Holding caused the name of the Company to be changed to Penn Virginia Resource GP, LLC on September 6, 2001 by filing a Certificate of Amendment with the Secretary of State of the State of Delaware on such date;
WHEREAS, Holding contributed all of the Membership Interests (as defined below) in the Company to Penn Virginia Resource Holdings Corp., a Delaware corporation (Resource Holdings), and Resource Holdings in turn contributed all of the Membership Interests in the Company to the Managing Member on September 14, 2001;
WHEREAS, the Managing Member entered into a Second Amended and Restated Limited Liability Company Agreement relating to the Company on September 14, 2001 to, among other things, appoint two additional directors and to reflect the contribution made on September 14, 2001; and
WHEREAS, Penn Virginia Resource Partners, L.P., a Delaware limited partnership (the MLP), and the Special Member are parties to a Purchase and Sale Agreement, dated as of the date hereof (the Purchase Agreement), which provides for the purchase by the MLP and sale by the Special Member or its affiliates of certain coal reserves and related assets in West Virginia and New Mexico and which contemplates possible future sales of additional coal reserves to the MLP in consideration for increases in the Special Members Percentage Interest (as defined below).
NOW THEREFORE, in consideration of the premises and the mutual covenants and promises contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) As used in this Agreement, the following terms have the respective meanings set forth below or set forth in the Sections referred to below:
Acceptance Notice has the meaning given such term in the Purchase Agreement.
Act has the meaning given such term in the Recitals.
Affiliate means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For the purposes of this definition, control when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Agreed Value of any property contributed to the Company means the fair market value of such property or other consideration at the time of contribution as determined by the Managing Member using such reasonable method of valuation as it may adopt.
Agreement has the meaning given such term in the introductory paragraph above the Recitals.
Applicable Law means (a) any United States Federal, state or local law, statute, rule, regulation, order, writ, injunction, judgment, decree or permit of any Governmental Authority and (b) any rule or listing requirement of any applicable national stock exchange or Commission-recognized trading market on which securities issued by the MLP are listed or quoted.
Audit Committee has the meaning given such term in Section 4.10(b).
Board means the Board of Directors of the Company elected or approved in accordance with Article IV.
Business Day means any day other than a Saturday, a Sunday, or a day when banks in New York, New York are authorized or required by Applicable Law to be closed.
Capital Account means the capital account maintained for a Member pursuant to Section 3.06.
Carrying Value means (a) with respect to property contributed to the Company, the Agreed Value of such property reduced (but not below zero) by all depreciation, amortization
174630
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J.P. Morgan
As referenced in this Limited Liability Company Agreement [Amended and Restated No. 3]:
J.P. Morgan Securities, – Lehman Brothers Inc., UBS Warburg, LLC, Morgan Stanley & Co. Incorporated, Merrill, Lynch, Pierce, Fenner & Smith, Incorporated, Salomon Smith Barney Inc., Goldman Sachs & Co., J.P. Morgan Securities, Inc., A.G. Edwards & Sons, Inc. and RBC Capital Markets and their respective successors and assigns.
Exchange Act means Securities Exchange Act
_____________
dt 98139
;
Peabody
As referenced in this Limited Liability Company Agreement [Amended and Restated No. 3]:
Peabody Energy – the Effective Date), between Penn Virginia Resource GP Corp., a Delaware corporation and the managing member of the Company (the Managing Member), and Peabody Energy Corporation, a Delaware corporation and the special member of the Company (the Special Member).
RECITALS:
WHEREAS, Penn Virginia Holding Corp, a Delaware corporation (
_____________
Peabody Energy – of the MLP, dated October 30, 2001, as amended, modified, supplemented or restated from time to time, or any successor agreement.
Peabody means Peabody Energy Corporation and its successors.
6
Peabody Designee means an individual nominated by Peabody to serve as a Director in accordance with Section 4.
_____________
Peabody Energy – 100 Matsonford Road, Suite 200
Radnor, Pennsylvania 19087
Attn: General Counsel
Telephone: (610) 687-8900
Fax: (610) 687-3688
To the Special Member:
Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63102
Attn: Jeffery L. Klinger
Fax: (314) 342-3419
Section 9.03 Entire Agreement; Superseding Effect.
_____________
PEABODY ENERGY – the date first set forth above.
MANAGING MEMBER:
PENN VIRGINIA RESOURCE GP CORP.
By:
Name: Nancy M. Snyder
Title: Vice President
SPECIAL MEMBER:
PEABODY ENERGY CORPORATION
By:
Name: Richard A. Navarre
Title: Executive Vice President
28
EXHIBIT A
IDR PERCENTAGE INTERESTS
Date
Special Members
IDR Percentage
Interest
Managing
_____________
Peabody Energy – of December 2002, between Penn Virginia Resource GP Corp., a Delaware corporation and the managing member of the Company (the Managing Member), and Peabody Energy Corporation, a Delaware corporation and the special member of the Company (the Special Member). Capitalized terms used but not defined herein shall have
_____________
dt 94522
;
|
Penn Virginia
As referenced in this Limited Liability Company Agreement [Amended and Restated No. 3]:
Penn Virginia Resource Partners, L – Company Agreement relating to the Company on September 14, 2001 to, among other things, appoint two additional directors and to reflect the contribution made on September 14, 2001; and
WHEREAS, Penn Virginia Resource Partners, L .P., a Delaware limited partnership (the MLP), and the Special Member are parties to a Purchase and Sale Agreement, dated as of the date hereof (the Purchase Agreement), which
_____________
dt 1396970
;
UBS Warburg
As referenced in this Limited Liability Company Agreement [Amended and Restated No. 3]:
UBS Warburg, LLC – has the meaning given such term in the introductory paragraph above the Recitals.
Eligible Investment Bank shall mean any of Lehman Brothers Inc., UBS Warburg, LLC , Morgan Stanley & Co. Incorporated, Merrill, Lynch, Pierce, Fenner & Smith, Incorporated, Salomon Smith Barney Inc., Goldman Sachs & Co., J.P. Morgan Securities, Inc.,
_____________
dt 106528
;
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| 2002 |
Deposit Agreement
Deposit Agreement (40K)
Doc #399301: Click preview link for longer preview.
DEPOSIT AGREEMENT
(Class G-1)
Dated as of August 5, 2002
between
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow Agent
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
as Depositary
TABLE OF CONTENTS
. . .
399301
|
J.P. Morgan
As referenced in this Deposit Agreement:
J.P. Morgan Securities Inc – issued (the date of such
issuance, the "Issuance Date");
WHEREAS, Northwest and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc ., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together
_____________
dt 999062
;
Royal Bank
As referenced in this Deposit Agreement:
Royal Bank of Scotland plc – USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together with their respective transferees and assigns as
registered owners of the Certificates, the "Investors") have entered into an
Underwriting Agreement dated as of July
_____________
dt 1019281
;
|
BNP Paribas
As referenced in this Deposit Agreement:
BNP Paribas
Securities Corp. – First Boston Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp. , and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together with their respective transferees and assigns as
registered owners of the Certificates, the "Investors") have entered into
_____________
dt 1040436
;
Credit Lyonnais
As referenced in this Deposit Agreement:
Credit Lyonnais Securities (USA) Inc – 1 Certificates
referred to therein (the "Certificates") are being issued (the date of such
issuance, the "Issuance Date");
WHEREAS, Northwest and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Credit Lyonnais Securities (USA) Inc ., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal
_____________
dt 1010642
;
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| 2002 |
Deposit Agreement
Deposit Agreement (38K)
Doc #399302: Click preview link for longer preview.
DEPOSIT AGREEMENT
(Class G-2)
Dated as of August 5, 2002
between
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow Agent
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
as Depositary
TABLE OF CONTENTS
. . .
399302
|
J.P. Morgan
As referenced in this Deposit Agreement:
J.P. Morgan Securities Inc – Certificates
referred to therein (the "Certificates") are being issued;
WHEREAS, Northwest and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc ., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together
_____________
dt 999063
;
Royal Bank
As referenced in this Deposit Agreement:
Royal Bank of Scotland plc – USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together with their respective transferees and assigns as
registered owners of the Certificates, the "Investors") have entered into an
Underwriting Agreement dated as of July
_____________
dt 1019282
;
|
BNP Paribas
As referenced in this Deposit Agreement:
BNP Paribas
Securities Corp. – First Boston Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp. , and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together with their respective transferees and assigns as
registered owners of the Certificates, the "Investors") have entered into
_____________
dt 1040437
;
Credit Lyonnais
As referenced in this Deposit Agreement:
Credit Lyonnais Securities (USA) Inc – Northwest Airlines Pass Through Trust, Series 2002-1G-2 Certificates
referred to therein (the "Certificates") are being issued;
WHEREAS, Northwest and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Credit Lyonnais Securities (USA) Inc ., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal
_____________
dt 1010643
;
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| 2002 |
Deposit Agreement
Deposit Agreement (40K)
Doc #399303: Click preview link for longer preview.
DEPOSIT AGREEMENT
(Class C-1)
Dated as of August 5, 2002
between
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow Agent
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
as Depositary
TABLE OF CONTENTS
. . .
399303
|
J.P. Morgan
As referenced in this Deposit Agreement:
J.P. Morgan Securities Inc – issued (the date of such
issuance, the "Issuance Date");
WHEREAS, Northwest and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc ., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together
_____________
dt 999064
;
Royal Bank
As referenced in this Deposit Agreement:
Royal Bank of Scotland plc – USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together with their respective transferees and assigns as
registered owners of the Certificates, the "Investors") have entered into an
Underwriting Agreement dated as of July
_____________
dt 1019283
;
|
BNP Paribas
As referenced in this Deposit Agreement:
BNP Paribas
Securities Corp. – First Boston Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp. , and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together with their respective transferees and assigns as
registered owners of the Certificates, the "Investors") have entered into
_____________
dt 1040438
;
Credit Lyonnais
As referenced in this Deposit Agreement:
Credit Lyonnais Securities (USA) Inc – 1 Certificates
referred to therein (the "Certificates") are being issued (the date of such
issuance, the "Issuance Date");
WHEREAS, Northwest and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Credit Lyonnais Securities (USA) Inc ., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal
_____________
dt 1010644
;
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| 2002 |
Deposit Agreement
Deposit Agreement (38K)
Doc #399304: Click preview link for longer preview.
DEPOSIT AGREEMENT
(Class C-2)
Dated as of August 5, 2002
between
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
as Escrow Agent
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
as Depositary
TABLE OF CONTENTS
. . .
399304
|
J.P. Morgan
As referenced in this Deposit Agreement:
J.P. Morgan Securities Inc – Certificates
referred to therein (the "Certificates") are being issued;
WHEREAS, Northwest and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc ., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together
_____________
dt 999065
;
Royal Bank
As referenced in this Deposit Agreement:
Royal Bank of Scotland plc – USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together with their respective transferees
and assigns as registered owners of the Certificates, the "Investors") have
entered into an Underwriting Agreement dated as of July
_____________
dt 1019284
;
|
BNP Paribas
As referenced in this Deposit Agreement:
BNP Paribas
Securities Corp. – First Boston Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp. , and The Royal Bank of Scotland plc (collectively, the
"Underwriters" and, together with their respective transferees
and assigns as registered owners of the Certificates, the "Investors") have
entered into
_____________
dt 1040439
;
Credit Lyonnais
As referenced in this Deposit Agreement:
Credit Lyonnais Securities (USA) Inc – Northwest Airlines Pass Through Trust, Series 2002-1C-2 Certificates
referred to therein (the "Certificates") are being issued;
WHEREAS, Northwest and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Credit Lyonnais Securities (USA) Inc ., Deutsche Bank
Securities Inc., J.P. Morgan Securities Inc., ABN AMRO Incorporated, Morgan
Stanley & Co. Incorporated, U.S. Bancorp Piper Jaffray Inc., BNP Paribas
Securities Corp., and The Royal
_____________
dt 1010645
;
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| 2001 |
Deposit Agreement
Deposit Agreement (39K)
Doc #399352: Click preview link for longer preview.
DEPOSIT AGREEMENT
(Class A-1)
DATED AS OF JUNE 1, 2001
BETWEEN
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent,
AND
ABN AMRO BANK N.V.,
as Depositary
--------------------------------------------------------------------------------
. . .
399352
|
J.P. Morgan
As referenced in this Deposit Agreement:
J.P. Morgan Securities
Inc – Trust,
Series 2001-1A-1 Certificates referred to therein (the "CERTIFICATES") are being
issued;
WHEREAS, Northwest and Credit Suisse First Boston Corporation, Morgan
Stanley & Co. Incorporated, Salomon Smith Barney Inc., J.P. Morgan Securities
Inc ., Deutsche Banc Alex Brown, Inc. and U.S. Bancorp Piper Jaffray, Inc.
(collectively, the "UNDERWRITERS" and, together with their respective
transferees and assigns as registered owners of the Certificates,
_____________
dt 999075
;
ABN AMRO Bank
As referenced in this Deposit Agreement:
ABN AMRO BANK N.V., – TEXT}
{Page}
Exhibit 4(e)(1)
EXECUTION COPY
--------------------------------------------------------------------------------
DEPOSIT AGREEMENT
(Class A-1)
DATED AS OF JUNE 1, 2001
BETWEEN
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent,
AND
ABN AMRO BANK N.V.,
as Depositary
--------------------------------------------------------------------------------
{Page}
TABLE OF CONTENTS
PAGE
Article 1 FORMATION OF DEPOSITS..........................................2
1.1 Acceptance of Depositary
1.2 Establishment of Accounts
Article 2 MAINTENANCE OF DEPOSITS........................................2
_____________
ABN AMRO BANK N.V., – NORTHWEST, NATIONAL ASSOCIATION, as Escrow Agent under the Escrow and
Paying Agent Agreement referred to below (in such capacity, together with its
successors in such capacity, the "ESCROW AGENT"), and ABN AMRO BANK N.V., as
depositary bank (the "DEPOSITARY"). Capitalized terms used herein without
definition shall have the respective defined meanings as set forth in the Note
Purchase Agreement (as defined below).
W
_____________
ABN AMRO BANK N.V., – in writing (including by facsimile)
and shall be deemed to be given and effective upon receipt thereof. All notices
shall be sent to (x) in the case of the Depositary, ABN AMRO BANK N.V., 208
South LaSalle Street, Suite 1500, Chicago, IL 60604-1003, Attention: Credit
Administration (Telecopier: 312-992-5111) and ABN AMRO BANK N.V., 135 South
LaSalle Street, Suite 611,
_____________
ABN AMRO BANK N.V., – x) in the case of the Depositary, ABN AMRO BANK N.V., 208
South LaSalle Street, Suite 1500, Chicago, IL 60604-1003, Attention: Credit
Administration (Telecopier: 312-992-5111) and ABN AMRO BANK N.V., 135 South
LaSalle Street, Suite 611, Chicago, IL 60603, Attention: Vice President -
Aerospace (Telecopier: 312-606-8428) or (y) in the case of the Escrow Agent,
Wells Fargo Bank
_____________
ABN AMRO BANK N.V., – have caused this
Deposit Agreement to be duly executed as of the day and year first above
written.
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By:
----------------------------------------
Name:
Title:
ABN AMRO BANK N.V.,
as Depositary
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
{Page}
SCHEDULE I
SCHEDULE OF DEPOSITS
--------------------
(Class A-1)
{Table}
{Caption}
DATE TAIL NO. DEPOSIT AMOUNT ACCOUNT NO. MATURITY DATE
---- ------- -------------- ---------- -------------
{S} {
_____________
dt 1030070
;
|
ABN AMRO Bank
As referenced in this Deposit Agreement:
ABN AMRO BANK N.V., – TEXT}
{Page}
Exhibit 4(e)(1)
EXECUTION COPY
--------------------------------------------------------------------------------
DEPOSIT AGREEMENT
(Class A-1)
DATED AS OF JUNE 1, 2001
BETWEEN
WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
as Escrow Agent,
AND
ABN AMRO BANK N.V.,
as Depositary
--------------------------------------------------------------------------------
{Page}
TABLE OF CONTENTS
PAGE
Article 1 FORMATION OF DEPOSITS..........................................2
1.1 Acceptance of Depositary
1.2 Establishment of Accounts
Article 2 MAINTENANCE OF DEPOSITS........................................2
_____________
ABN AMRO BANK N.V., – NORTHWEST, NATIONAL ASSOCIATION, as Escrow Agent under the Escrow and
Paying Agent Agreement referred to below (in such capacity, together with its
successors in such capacity, the "ESCROW AGENT"), and ABN AMRO BANK N.V., as
depositary bank (the "DEPOSITARY"). Capitalized terms used herein without
definition shall have the respective defined meanings as set forth in the Note
Purchase Agreement (as defined below).
W
_____________
ABN AMRO BANK N.V., – in writing (including by facsimile)
and shall be deemed to be given and effective upon receipt thereof. All notices
shall be sent to (x) in the case of the Depositary, ABN AMRO BANK N.V., 208
South LaSalle Street, Suite 1500, Chicago, IL 60604-1003, Attention: Credit
Administration (Telecopier: 312-992-5111) and ABN AMRO BANK N.V., 135 South
LaSalle Street, Suite 611,
_____________
ABN AMRO BANK N.V., – x) in the case of the Depositary, ABN AMRO BANK N.V., 208
South LaSalle Street, Suite 1500, Chicago, IL 60604-1003, Attention: Credit
Administration (Telecopier: 312-992-5111) and ABN AMRO BANK N.V., 135 South
LaSalle Street, Suite 611, Chicago, IL 60603, Attention: Vice President -
Aerospace (Telecopier: 312-606-8428) or (y) in the case of the Escrow Agent,
Wells Fargo Bank
_____________
ABN AMRO BANK N.V., – have caused this
Deposit Agreement to be duly executed as of the day and year first above
written.
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
as Escrow Agent
By:
----------------------------------------
Name:
Title:
ABN AMRO BANK N.V.,
as Depositary
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
{Page}
SCHEDULE I
SCHEDULE OF DEPOSITS
--------------------
(Class A-1)
{Table}
{Caption}
DATE TAIL NO. DEPOSIT AMOUNT ACCOUNT NO. MATURITY DATE
---- ------- -------------- ---------- -------------
{S} {
_____________
dt 1030070
;
Morgan Stanley
As referenced in this Deposit Agreement:
Morgan
Stanley & Co. – pursuant to which the Northwest Airlines Pass Through Trust,
Series 2001-1A-1 Certificates referred to therein (the "CERTIFICATES") are being
issued;
WHEREAS, Northwest and Credit Suisse First Boston Corporation, Morgan
Stanley & Co. Incorporated, Salomon Smith Barney Inc., J.P. Morgan Securities
Inc., Deutsche Banc Alex Brown, |