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EXHIBIT 3.4
AMENDMENT NO. 2
TO
THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
LEVIATHAN GAS PIPELINE PARTNERS, L.P.
This Amendment, dated as of June 1, 1999 (this "Amendment"), to the Amended
and Restated Limited Partnership Agreement of Leviathan Gas Pipeline Partners,
L.P., a Delaware limited partnership (as amended, the "Partnership"), dated as
of February 19, 1993 (the "Partnership Agreement"), is entered into by and among
Leviathan Gas Pipeline Company, a Delaware corporation (the "General Partner"),
as the general partner of the Partnership, and the Limited Partners (as defined
in the Partnership Agreement).
R E C I T A L S
A. WHEREAS, the Partnership has entered into certain transactions with El
Paso Field Services Company, a Delaware corporation ("El Paso"), and certain
affiliates thereof pursuant to which, at the closing contemplated thereby, El
Paso will contribute to the Partnership an interest in Viosca Xxxxx Gathering
Company, a Delaware joint venture ("Viosca Xxxxx"), in exchange for cash and
common units of the Partnership; and
B. WHEREAS, in connection with such transactions, the General Partner deems
it to be in the Partnership's best interests to amend the Partnership Agreement
by action of the General Partner pursuant to Sections 15.1-15.3 of the
Partnership Agreement; and
C. NOW, THEREFORE, AND IN CONSIDERATION of the mutual covenants, conditions
and agreements contained in this Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
A G R E E M E N T
1. Undefined Terms. Undefined terms used herein shall have the meanings
ascribed such terms in the Partnership Agreement.
2. Amendments.
A. Section 13.2 of the Partnership Agreement is amended by deleting
it in its entirety and replacing it with the following:
"13.2 Removal of the General Partner. The General Partner may be
removed with or without Cause if such removal is approved by at
least 55% of the Outstanding Units. Any such action by the
Limited Partners for removal of the General Partner also must
provide for the election of a new General Partner by the holders
of a majority of the Outstanding Units. Such removal shall be
effective immediately following the admission of the successor
General Partner pursuant to Article XII. The right of the Limited
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Partners to remove the General Partner shall not exist or be
exercised unless the Partnership has received an Opinion of
Counsel opining as to the matters covered by a Withdrawal Opinion
of Counsel. Any such successor General Partner shall be subject
to the provisions of Section 12.3."
B. Section 15.4 of the Partnership Agreement is amended by deleting
it in its entirety and replacing it with the following:
"15.4 Meetings. All acts of Limited Partners to be taken
hereunder shall be taken in the manner provided in this Article
XV. Meetings of the Limited Partners may be called only by the
General Partner or, with respect to meetings called to remove the
General Partner, by Limited Partners owning 55% or more of the
Outstanding Units. Limited Partners shall call a meeting to
remove the General Partner by delivering to the General Partner
one or more requests in writing stating that the signing Limited
Partners wish to call a meeting to remove the General Partner.
Within 60 days after receipt of such a call from Limited Partners
or within such greater time as may be reasonably necessary for
the Partnership to comply with any statutes, rules, regulations,
listing agreements or similar requirements governing the holding
of a meeting or the solicitation of proxies for use at such a
meeting, the General Partner shall send a notice of the meeting
to the Limited Partners either directly or indirectly through the
Transfer Agent. A meeting shall be held at a time and place
determined by the General Partner on a date not more than 60 days
after the mailing of notice of the meeting. Limited Partners
shall not vote on matters that would cause the Limited Partners
to be deemed to be taking part in the management and control of
the business and affairs of the Partnership so as to jeopardize
the Limited Partners' limited liability under the Delaware Act or
the law of any other state in which the Partnership is qualified
to do business."
3. Miscellaneous.
(a) Pronouns and Plurals. Whenever the context may required, any
pronoun used in this Amendment shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and
verbs shall include the plural and vice-versa.
(b) Further Action. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking action
as may be necessary or appropriate to achieve the purposes of this
Amendment.
(c) Binding Effect. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.
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(d) Integration. This Amendment constitutes the entire agreement among
the parties hereto pertaining to the subject matter hereof and supersedes
all prior agreements and understandings pertaining thereto.
(e) Creditors. None of the provisions of this Amendment shall be for
the benefit of, or shall be enforceable by, any creditor of the
Partnership.
(f) Waiver. No failure by any party to insist upon the strict
performance of any covenant duty, agreement or condition of this Amendment
or to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant duty,
agreement or condition.
(g) Counterparts. This Amendment may be executed in counterparts, all
of which together shall constitute an agreement binding on all of the
parties hereto, notwithstanding that all such parties are not signatories
to the original or the same counterpart. Each party shall become bound by
this Amendment immediately upon affixing its signature hereto, or, in the
case of a Person acquiring a Unit, upon executing and delivering a Transfer
Application as described in the Partnership Agreement, independently of the
signature of any other party.
(h) Applicable Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of Delaware, without regard to
the principles of conflicts of law.
(i) Invalidity of Provisions. If any provision of this Amendment is or
becomes invalid, illegal or unenforceable in any respect the validity,
legality and enforceability of the remaining provisions contained herein
shall not be affected thereby.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
GENERAL PARTNER
LEVIATHAN GAS PIPELINE COMPANY
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
LIMITED PARTNERS
All Limited Partners now and hereafter
admitted as limited partners of the
Partnership, pursuant to Powers of Attorney
now and hereafter executed in favor of, and
granted and delivered to, the General
Partner.
By: Leviathan Gas Pipeline Company,
General Partner, as attorney-in-fact
for all Limited Partners pursuant to
Powers of Attorney granted pursuant
to Section 1.4.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
