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TABLE OF CONTENTS

Table of Contents

As filed with the Securities and Exchange Commission on June 29, 2017

Registration No. 333-            


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933



NGL ENERGY PARTNERS LP*
NGL ENERGY FINANCE CORP.*
(Exact name of registrant as specified in its charter)



Delaware
Delaware

(State or other jurisdiction of
incorporation or organization)
  5900
5900

(Primary Standard Industrial
Classification Code Number)
  27-3427920
80-0956287

(I.R.S. Employer
Identification Number)

6120 South Yale Avenue
Suite 805
Tulsa, Oklahoma
(918) 481-1119

(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)

H. Michael Krimbill
Chief Executive Officer
NGL Energy Partners LP
6120 South Yale Avenue
Suite 805
Tulsa, Oklahoma
(918) 481-1119

(Name, address, including zip code, and telephone number, including area code, of agent for service)



Copies to:

Henry Havre
Andrews Kurth Kenyon LLP
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4200



Approximate date of commencement of proposed sale of the securities to the public:
As soon as practicable after the effective date of this Registration Statement.

            If the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.     o

            If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

            If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

            Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company" and "emerging growth company" in Rule 12b-2 of the Exchange Act.

Large Accelerated filer  ý   Accelerated filer  o   Non-accelerated filer  o
(Do not check if a
smaller reporting company)
  Smaller reporting company  o

Emerging growth company  o

            If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act.  o

            If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

            Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)     o

            Exchange Act Rule 144-1(d) (Cross-Border Third-Party Tender Offer)     o

             Each Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

CALCULATION OF REGISTRATION FEE

               
 
Title of each class of securities
to be registered

  Amount to be
registered

  Proposed maximum
offering price per
unit

  Proposed maximum
aggregate offering
price

  Amount of
registration fee

 

6.125% Senior Notes due 2025

  $500,000,000   100%   $500,000,000   $57,950(1)
 

Guarantees of 6.125% Senior Notes due 2025

  $—   —%   $—   $—(3)

 

(1)
Calculated pursuant to Rule 457(f)(2) under the Securities Act of 1933, as amended. For purposes of this calculation, the offering price per note was assumed to be the stated principal amount of each original note that may be received by the registrant in the exchange transaction in which the notes will be offered.

(2)
No separate consideration will be received for the guarantees. Each subsidiary of NGL Energy Partners LP that is listed below in the Table of Additional Registrant Guarantors will guarantee the notes being registered.

(3)
Pursuant to Rule 457(n) of the Securities Act of 1933, as amended, no registration fee is required for the Guarantees.


   


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TABLE OF ADDITIONAL REGISTRANT GUARANTORS

*
The following are co-registrants that guarantee the debt securities:
Exact name of registrant guarantor(1)
  State or other
jurisdiction of
incorporation or
organization
  I.R.S.
Employer
Identification
Number
 

NGL Energy Operating LLC

  Delaware     27-3428096  

NGL Crude Logistics, LLC

  Delaware     47-0794813  

NGL Propane, LLC

  Delaware     26-0648745  

NGL Liquids, LLC

  Delaware     27-3756258  

NGL Crude Transportation, LLC

  Colorado     46-5216792  

NGL Crude Cushing, LLC

  Oklahoma     27-4216425  

High Sierra Crude Oil & Marketing, LLC

  Colorado     03-0611248  

High Sierra Energy, LP

  Delaware     32-0133367  

NGL Crude Pipelines, LLC

  Oklahoma     27-2635247  

NGL Energy Logistics, LLC

  Delaware     90-0999490  

NGL Energy Holdings II, LLC

  Delaware     27-2639996  

NGL Crude Terminals, LLC

  Delaware     27-4016063  

NGL Crude Canada Holdings, LLC

  Colorado     30-0762281  

NGL Marine, LLC

  Delaware     87-0758428  

Osterman Propane, LLC

  Delaware     45-3263311  

NGL Water Solutions Bakken, LLC

  Colorado     38-3942052  

Hicksgas, LLC

  Delaware     27-3573860  

NGL-NE Real Estate, LLC

  Delaware     37-1663246  

NGL-MA Real Estate, LLC

  Delaware     80-0781281  

NGL-MA, LLC

  Delaware     90-0790881  

Centennial Energy, LLC

  Colorado     84-1227036  

Centennial Gas Liquids ULC

  Alberta     85-6127923  

NGL Shipping and Trading, LLC

  Delaware     68-0486837  

NGL Supply Terminal Company, LLC

  Delaware     01-0749898  

NGL Supply Wholesale, LLC

  Delaware     20-0317348  

NGL Water Solutions, LLC

  Colorado     20-8661032  

AntiCline Disposal, LLC

  Wyoming     41-2031951  

NGL Water Solutions DJ, LLC

  Colorado     37-1632639  

NGL Water Solutions Eagle Ford, LLC

  Delaware     80-0858222  

NGL Water Solutions Permian, LLC

  Colorado     32-0412772  

TransMontaigne LLC

  Delaware     06-1052062  

TransMontaigne Product Services LLC

  Delaware     84-1477374  

TransMontaigne Services LLC

  Delaware     26-1409042  

Sawtooth NGL Caverns, LLC

  Delaware     61-1702664  

NGL Milan Investments, LLC

  Colorado     37-1766148  

NGL Water Solutions Mid-Continent, LLC

  Colorado     61-1748866  

Grand Mesa Pipeline, LLC

  Delaware     47-2255340  

NGL Supply Terminal Solution Mining, LLC

  Utah     46-2303732  

NGL Energy Equipment LLC

  Colorado     61-1771893  

Choya Operating, LLC

  Texas     46-2447558  

OPR, LLC

  Delaware     30-0953779  

NGL Crude Canada ULC

  Alberta     N/A  

(1)
The address for each the registrant guarantors is 6120 S. Yale Avenue, Suite 805, Tulsa, OK 74136, and the telephone number for each of the registrant guarantors is (918) 481-1119. The Primary Standard Industrial Classification Code for the registrant guarantors is 5900.

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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

SUBJECT TO COMPLETION, DATED JUNE 29, 2017

PROSPECTUS

LOGO

NGL Energy Partners LP

NGL Energy Finance Corp.

Offer to Issue
Up to $500,000,000 of
6.125% Senior Notes due 2025

That Have Been Registered Under
the Securities Act of 1933
("new notes")

In Exchange For

Up to $500,000,000 of
6.125% Senior Notes due 2025

That Have Been Not Registered Under
the Securities Act of 1933
("old notes")

Terms of the New Notes:

Terms of the Exchange Offer:



          You should carefully consider the risks set forth under "Risk Factors" beginning on page 11 of this prospectus for a discussion of factors you should consider before participating in the exchange offer.



         Neither the Securities and Exchange Commission (the "SEC") nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.



The date of this prospectus is            , 2017.


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         This prospectus is part of a registration statement we filed with the Securities and Exchange Commission. In making your investment decision, you should rely only on the information contained in this prospectus and in the accompanying letter of transmittal. We have not authorized anyone to provide you with any other information. If you receive any unauthorized information, you must not rely on it. We are not making an offer to sell these securities or soliciting an offer to buy these securities in any jurisdiction where an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone whom it is unlawful to make an offer or solicitation. You should not assume that the information contained in this prospectus is accurate as of any date other than the date on the front cover of this prospectus.


TABLE OF CONTENTS

 
  Page  

WHERE YOU CAN FIND MORE INFORMATION

   
ii
 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

   
iv
 

PROSPECTUS SUMMARY

   
1
 

RISK FACTORS

   
11
 

EXCHANGE OFFER

   
16
 

RATIO OF EARNINGS TO FIXED CHARGES

   
24
 

USE OF PROCEEDS

   
25
 

DESCRIPTION OF NOTES

   
26
 

PLAN OF DISTRIBUTION

   
85
 

CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES

   
86
 

LEGAL MATTERS

   
87
 

EXPERTS

   
87
 

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WHERE YOU CAN FIND MORE INFORMATION

        We file annual, quarterly and current reports and other information with the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). You may read and copy any document we file at the SEC's Public Reference Room located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. Our filings with the SEC also are available from the SEC's internet site at www.sec.gov, which contains reports, proxy and information statements, and other information regarding issuers that file electronically. You may obtain a copy of these filings at no cost by writing or telephoning us at the following address: NGL Energy Partners LP, 6120 South Yale Avenue, Suite 805, Tulsa, Oklahoma 74136; telephone number (918) 481-1119.

        We also make all periodic and other information filed or furnished with the SEC available, free of charge, on our website at www.nglenergypartners.com as soon as reasonably practicable after such information is electronically filed with or furnished to the SEC. Except as otherwise set forth herein, information on our website or any other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.

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INCORPORATION BY REFERENCE

        The SEC allows us to "incorporate by reference" into this prospectus the information we file with them, which means that we can disclose important information to you by referring you to those documents. Any statement contained or incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein, or in any subsequently filed document which also is incorporated by reference herein, modifies or supersedes such earlier statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. We incorporate by reference the documents listed below:

        All documents that we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial registration statement, of which this prospectus forms a part, and prior to the effectiveness of such registration statement and (ii) after the date of this prospectus and before the offering hereunder is completed, are incorporated by reference in this prospectus from the date of filing of the documents, unless we specifically provide otherwise in each case (excluding any information furnished and not filed with the SEC). Information that we file with the SEC will automatically update and may replace information previously filed with the SEC.

        You may obtain, without charge, a copy of any of the documents incorporated by reference in this prospectus, other than exhibits to those documents that are not specifically incorporated by reference into those documents, by writing or telephoning us at the following address: NGL Energy Partners LP, 6120 South Yale Avenue, Suite 805, Tulsa, Oklahoma 74136; telephone number (918) 481-1119.

        You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you with any information. You should not assume that the information incorporated by reference or provided in this prospectus is accurate as of any date other than the date on the front of each document.

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CAUTIONARY STATEMENT
REGARDING FORWARD-LOOKING STATEMENTS

        This prospectus contains various forward-looking statements and information that are based on our beliefs and those of our general partner, as well as assumptions made by and information currently available to us. These forward-looking statements are identified as any statement that does not relate strictly to historical or current facts. Certain words in this prospectus, such as "anticipate," "believe," "could," "estimate," "expect," "forecast," "goal," "intend," "may," "plan," "project," "will" and similar expressions and statements regarding our plans and objectives for future operations, identify forward-looking statements. Although we and our general partner believe such forward-looking statements are reasonable, neither we nor our general partner can assure they will prove to be correct. Forward-looking statements are subject to a variety of risks, uncertainties and assumptions. If one or more of these risks or uncertainties materialize, or if underlying assumptions prove incorrect, our actual results may vary materially from those expected. Among the key risk factors that may affect our consolidated financial position and results of operations are:

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        You should not put undue reliance on any forward-looking statements. All forward-looking statements speak only as of the date of this prospectus. Except as required by state and federal securities laws, we undertake no obligation to publicly update or revise any forward-looking statements as a result of new information, future events, or otherwise. When considering forward-looking statements, please review the risks discussed under Part I, Item 1A—"Risk Factors" in our Annual Report on Form 10-K for the fiscal year ended March 31, 2017.

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PROSPECTUS SUMMARY

         This summary highlights information included in this prospectus. It does not contain all of the information that may be important to you. You should read carefully this entire prospectus for a more complete understanding of our business and the terms of this offering, as well as the tax and other considerations that are important to you in making your investment decision.

         Unless the context otherwise requires, references to "NGL Energy Partners," "NGL," "we," "us," "our" and similar terms, as well as references to the "Partnership," are to NGL Energy Partners LP and all of its subsidiaries. Our "general partner" refers to NGL Energy Holdings LLC. We refer to the new notes and the old notes collectively as the "notes."


NGL Energy Partners LP

        NGL Energy Partners LP is a Delaware limited partnership formed in September 2010. Subsequent to our formation, we significantly expanded our operations through numerous business combinations. At March 31, 2017, our operations include:

    Our Crude Oil Logistics segment, purchases crude oil from producers and transports it to refineries or for resale at owned and leased pipeline injection stations, storage terminals, barge loading facilities, rail facilities, refineries, and other trade hubs.

    Our Water Solutions segment, provides services for the treatment and disposal of wastewater generated from crude oil and natural gas production and for the disposal of solids such as tank bottoms and drilling fluids and performs truck washouts. In addition, our Water Solutions segment sells the recovered hydrocarbons that result from performing these services.

    Our Liquids segment supplies natural gas liquids to retailers, wholesalers, refiners, and petrochemical plants throughout the United States and in Canada using its leased underground storage and fleet of leased railcars, markets regionally through its 21 owned terminals throughout the United States, and provides terminaling and storage services at its salt dome storage facility in Utah.

    Our Retail Propane segment sells propane, distillates, and equipment and supplies to end users consisting of residential, agricultural, commercial, and industrial customers and to certain resellers in 30 states and the District of Columbia.

    Our Refined Products and Renewables segment conducts gasoline, diesel, ethanol, and biodiesel marketing operations, purchases refined petroleum and renewable products primarily in the Gulf Coast, Southeast and Midwest regions of the United States and schedules them for delivery at various locations throughout the country.


Principal Executive Offices

        Our principal executive offices are located at 6120 South Yale Avenue, Suite 805, Tulsa, Oklahoma 74136. Our telephone number is (918) 481-1119.

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Primary Service Areas

        The following map shows the primary service areas of our businesses as of March 31, 2017:

GRAPHIC

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Summary Organizational Structure

        The following chart provides a summarized overview of our legal entity structure at March 31, 2017:

GRAPHIC


(1)
The notes are currently guaranteed by all of our existing and future restricted subsidiaries (other than NGL Energy Finance Corp.) that are obligors under certain of our indebtedness, including our Credit Agreement, the Existing Senior Notes and the Existing Senior Secured Notes. See "Description of Notes—Note Guarantees" and "—Additional Note Guarantees."

(2)
Includes (i) NGL Crude Logistics, LLC, which includes the operations of our crude oil logistics and a portion of or refined products and renewables businesses, (ii) NGL Water Solutions, LLC, which includes the operations of our water solutions business, (iii) NGL Liquids, LLC, which includes the operations of our liquids business, (iv) NGL Propane, LLC, which includes the operations of our retail propane business and (v) TransMontaigne, LLC, which includes the remaining portion of our refined products and renewables businesses.

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The Exchange Offer

         On February 22, 2017 we completed a private offering of the old notes. We entered into a registration rights agreement with the initial purchasers in the private offering pursuant to which we agreed to deliver to you this prospectus and to use commercially reasonable efforts to cause the registration statement of which his prospectus forms a part to be declared effective by the SEC on or before February 22, 2018.

Old Notes

  $500 million aggregate principal amount of 6.125% Senior Notes due 2025, issued pursuant to Rule 144A and Regulation S promulgated under the Securities Act. Transfer restrictions apply to the old notes.

New Notes

 

Up to $500 million aggregate principal amount of 6.125% Senior Notes due 2025. The terms of the new notes are identical to the terms of the old notes, except that the new notes will be registered under the Securities Act, and will not have restrictions on transfer, registration rights or provisions for additional interest.

 

Except as provided below, we believe that the new notes may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act provided that:

 

the new notes are being acquired in the ordinary course of business,

 

you are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate in the distribution of the new notes issued to you in the exchange offer,

 

you are not our affiliate, and

 

you are not a broker-dealer tendering old notes acquired directly from us for your account.

 

Our belief is based on interpretations by the staff of the SEC, as set forth in no-action letters issued to third parties that are not related to us. The SEC has not considered this exchange offer in the context of a no-action letter, and we cannot assure you that the SEC would make similar determinations with respect to this exchange offer. If any of these conditions are not satisfied, or if our belief is not accurate, and you transfer any new notes issued to you in the exchange offer without delivering a resale prospectus meeting the requirements of the Securities Act or without an exemption from registration of your new notes from those requirements, you may incur liability under the Securities Act. We will not assume, nor will we indemnify you against, any such liability. Each broker-dealer that receives new notes for its own account in exchange for old notes, where the old notes were acquired by such broker-dealer as a result of market-making or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such new notes. See "Plan of Distribution."

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Exchange Offer

 

We are offering to issue freely tradable new notes in exchange for the same principal amount of old notes. The old notes may be tendered only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. We will issue new notes in exchange for all old notes that are validly tendered and not withdrawn prior to the expiration of the exchange offer. We will cause the exchange to be effected promptly after the expiration date of the exchange offer.

 

The new notes will evidence the same debt as the old notes and will be issued under and entitled to the benefits of the same indenture that governs the old notes. Because we have registered the offers and sales of the new notes, the new notes will not be subject to transfer restrictions, and holders of old notes that have tendered and had their outstanding notes accepted in the exchange offer will have no further registration rights.

Expiration Date

 

The exchange offer will expire at 5:00 p.m., New York City time, on            , 20    , unless we decide to extend it.

Conditions to the Exchange Offer

 

The registration rights agreement does not require us to accept old notes for exchange if the exchange offer, or the making of any exchange by a holder of the old notes, would violate any applicable law or interpretation of the staff of the Securities and Exchange Commission. The exchange offer is not conditioned on a minimum aggregate principal amount of old notes being tendered. Please read "Exchange Offer—Conditions to the Exchange Offer" for more information about the conditions to the exchange offer.

Procedures for Tendering Old Notes

 

To participate in the exchange offer, you must follow the procedures established by The Depository Trust Company, or DTC, for tendering notes held in book-entry form. These procedures for using DTC's Automated Tender Offer Program, or ATOP, require that (i) the exchange agent receive, prior to the expiration date of the exchange offer, a computer generated message known as an "agent's message" that is transmitted through ATOP, and (ii) DTC confirms that:

 

DTC has received your instructions to exchange your notes; and

 

you agree to be bound by the terms of the letter of transmittal.

 

By transmitting an agent's message, you will represent to us that, among other things:

 

the new notes you receive will be acquired in the ordinary course of your business;

 

you are not participating, and you have no arrangement with any person or entity to participate, in the distribution of the new notes;

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you are not our "affiliate, " as defined in Rule 405 under the Securities Act, or a broker-dealer tendering old notes acquired directly from us for resale pursuant to Rule 144A or any other available exemption under the Securities Act; and

 

if you are not a broker-dealer, that you are not engaged in and do not intend to engage in the distribution of the new notes.

 

For more information on tendering your old notes, please refer to the section in this prospectus entitled "Exchange Offer—Terms of the Exchange Offer," "—Procedures for Tendering," and "Description of Notes—Book-Entry, Delivery and Form."

Guaranteed Delivery Procedures

 

None.

Withdrawal of Tenders

 

You may withdraw your tender of old notes at any time prior to the expiration date. To withdraw, you must submit a notice of withdrawal to the exchange agent using ATOP procedures before 5:00 p.m., New York City time, on the expiration date of the exchange offer. Please refer to the section in this prospectus entitled "Exchange Offer—Withdrawal of Tenders."

Acceptance of Old Notes and Delivery of New Notes

 

If you fulfill all conditions required for proper acceptance of old notes, we will accept any and all old notes that you properly tender in the exchange offer on or before 5:00 p.m., New York City time, on the expiration date. We will return any old notes that we do not accept for exchange to you without expense promptly after the expiration date and acceptance of the old notes for exchange. Please refer to the section in this prospectus entitled "Exchange Offer—Terms of the Exchange Offer."

Fees and Expenses

 

We will bear expenses related to the exchange offer. Please refer to the section in this prospectus entitled "Exchange Offer—Fees and Expenses."

Use of Proceeds

 

The issuance of the new notes will not provide us with any new proceeds. We are making this exchange offer solely to satisfy our obligations under the registration rights agreement entered into in connection with the initial issuance of the old notes.

Consequences of Failure to Exchange Old Notes

 

If you do not exchange your old notes in this exchange offer, you will no longer be able to require us to register the old notes under the Securities Act, except in limited circumstances provided under the registration rights agreement. In addition, you will not be able to resell, offer to resell or otherwise transfer the old notes unless we have registered the old notes under the Securities Act, or unless you resell, offer to resell or otherwise transfer them under an exemption from the registration requirements of, or in a transaction not subject to, the Securities Act.

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U.S. Federal Income Tax Considerations

 

The exchange of old notes for new notes in the exchange offer will not be a taxable event for U.S. federal income tax purposes. Please read "Certain U.S. Federal Income Tax Consequences."

Exchange Agent

 

We have appointed U.S. Bank National Association as exchange agent for the exchange offer. You should direct questions and requests for assistance, as well as requests for additional copies of this prospectus or the letter of transmittal, to the exchange agent addressed as follows: U.S. Bank National Association, Corporate Trust Services, Attention: Specialized Finance Department, 111 Fillmore Ave. E., St. Paul, MN 55107. Eligible institutions may make requests by facsimile at (651) 466-7372, and may confirm facsimile delivery by calling (800) 934-6802.

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Terms of the New Notes

         The new notes will be identical to the old notes, except that the new notes are registered under the Securities Act and will not have restrictions on transfer, registration rights or provisions for additional interest. The new notes will evidence the same debt as the old notes, and the same indenture will govern the new notes and the old notes.

         The following summary contains basic information about the new notes and is not intended to be complete. It does not contain all the information that is important to you. For a more complete understanding of the new notes, please refer to the section of this prospectus entitled "Description of Notes. "

Issuers

  NGL Energy Partners LP, a Delaware limited partnership, and NGL Energy Finance Corp., a Delaware corporation.

 

NGL Energy Finance Corp., a Delaware corporation, is a 100% owned subsidiary of NGL Energy Partners LP that was organized for the sole purpose of being a co-issuer of certain of our indebtedness, including the new notes. NGL Energy Finance Corp. has no operations and no revenue other than as may be incidental to its activities as co-issuer of our indebtedness.

Notes Offered

 

$500,000,000 aggregate principal amount of 6.125% Senior Notes due 2025.

Maturity Date

 

March 1, 2025.

Interest

 

Interest on the new notes will accrue from February 22, 2017 at a rate of 6.125% per annum (calculated using a 360-day year).

Interest Payment Dates

 

Interest on the new notes is payable on March 1 and September 1 of each year.

Ranking

 

Like the old notes, the new notes will be the unsecured senior obligations of each of the Issuers. Accordingly, they will rank:

 

pari passu in right of payment with all existing and future unsubordinated indebtedness of each of the Issuers, including the Issuers' 5.125% Senior Notes due 2019, 6.875% Senior Notes due 2021 and 7.5% Senior Notes due 2023 (the " Existing Senior Notes ");

 

senior in right of payment to any future subordinated indebtedness of each of the Issuers;

 

structurally subordinated to all obligations of any of our subsidiaries; and

 

effectively junior in right of payment to all existing and future secured indebtedness of each of the Issuers, including indebtedness under the Credit Agreement and Existing Senior Secured Notes, which are secured by substantially all of the assets of NGL Energy, to the extent of the value of the assets of the Issuers constituting collateral securing such indebtedness.

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See "Risk Factors—Risks Related to the Notes—The notes and the guarantees are unsecured and effectively subordinated to our and our subsidiary guarantors' existing and future secured indebtedness."

 

As of June 2, 2017, we had approximately $3.2 billion of total long-term debt, approximately $1.2 billion of which was secured indebtedness, and we had approximately $739 million of remaining borrowing capacity under our Credit Agreement (net of $82.3 million of outstanding letters of credit). As of March 31, 2017, our non-guarantor subsidiaries had $17.7 million of outstanding indebtedness, of which $16.2 million is intercompany indebtedness and is eliminated in consolidation, and owned approximately 1.3% of our consolidated assets. See "Capitalization."

 

The guarantees will rank:

 

pari passu in right of payment with all existing and future unsubordinated indebtedness of each guarantor;

 

senior in right of payment to any future subordinated indebtedness of each guarantor; and

 

effectively junior in right of payment to all existing and future secured indebtedness of each guarantor, including indebtedness under the Credit Agreement and the Existing Senior Secured Notes, to the extent of the value of the assets of each guarantor constituting collateral securing such indebtedness.

Optional Redemption

 

Beginning on March 1, 2020, we may redeem some or all of the new notes at the redemption prices listed under "Description of Notes—Optional Redemption" plus accrued and unpaid interest, if any, on the new notes to the date of redemption.

 

At any time prior to March 1, 2020, we may, at our option, redeem up to 35% of the new notes with a cash amount equal to the net cash proceeds of certain equity offerings at a redemption price equal to 106.125% of the aggregate principal amount, plus accrued and unpaid interest, if any, to the redemption date. We may make that redemption only if, after the redemption, at least 65% of the aggregate principal amount of the new notes issued on the initial issue date remains outstanding and the redemption occurs within 180 days of the closing of the equity offering. Please see "Description of Notes—Optional Redemption."

 

We may, from time to time prior to March 1, 2020, redeem all or a part of the new notes, at a redemption price equal to 100% of the aggregate principal amount of the notes redeemed, plus a "make-whole" premium and accrued and unpaid interest, if any, to the redemption date.

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Change of Control

 

If we experience certain kinds of changes of control followed by a rating decline, we must give holders of the new notes the opportunity to sell us their new notes at 101% of their principal amount, plus accrued and unpaid interest, if any.

Certain Covenants

 

The indenture governing the new notes will contain certain covenants limiting our ability and the ability of our restricted subsidiaries to, under certain circumstances:

 

pay distributions on, purchase or redeem our common equity or purchase or redeem our subordinated debt;

 

incur or guarantee additional indebtedness or issue preferred units;

 

create or incur certain liens;

 

enter into agreements that restrict distributions or other payments from our restricted subsidiaries to us;

 

consolidate, merge or transfer all or substantially all of our assets; and

 

engage in transactions with affiliates.

 

These covenants are subject to important exceptions and qualifications as described in this prospectus under the caption "Description of Notes—Covenants." In addition, certain of the covenants listed above will terminate before the new notes mature if any two of the three specified rating agencies assign the notes an investment grade rating in the future and no events of default exist under the indenture. Any covenants that cease to apply to us as a result of achieving investment grade ratings will not be restored, even if the credit ratings assigned to the new notes later fall below investment grade.

Absence of Established Market for the New Notes

 

The new notes generally will be freely transferable, but will also be new securities for which there will not initially be a market. There can be no assurance as to the development or liquidity of any market for the new notes.

 

We do not intend to apply for a listing of the new notes on any securities exchange or for the inclusion of the new notes on any automated dealer quotation system.

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RISK FACTORS

         This offering involves a high degree of risk. Before deciding to invest in the notes, you should consider carefully the risks and uncertainties described below with all of the other information included or incorporated by reference in this prospectus, including the risk factors contained in the sections titled "Risk Factors" included in our Annual Report on Form 10-K for the year ended March 31, 2017. While these are the risks and uncertainties we believe are most important for you to consider, you should know that they are not the only risks or uncertainties facing us or which may adversely affect our business. If any of these risks actually occur, our business, financial condition or results of operations could be materially adversely affected.

Risks Related to Investing in the New Notes

Our leverage and debt service obligations may adversely affect our financial condition, results of operations and business prospects and our ability to make payments on the notes.

        As of June 2, 2017, we had $3.2 billion of total long-term debt, including $944 million of debt outstanding under our Credit Agreement and approximately $250 million aggregate principal amount of our senior secured notes, and we had approximately $739 million of remaining borrowing capacity under our Credit Agreement (net of $82.3 million of outstanding letters of credit). As of March 31, 2017, our non-guarantor subsidiaries had $17.7 million of outstanding indebtedness, of which $16.2 million is intercompany indebtedness and is eliminated in consolidation, and owned approximately 1.3% of our consolidated assets.

        Our level of indebtedness could affect our operations in several ways, including the following:

    requiring us to dedicate a substantial portion of our cash flow from operations to service our existing debt, thereby reducing the cash available to finance our operations and other business activities and limiting our flexibility in planning for or reacting to changes in our business and the industry in which we operate;

    increasing our vulnerability to economic downturns and adverse developments in our business;

    limiting our ability to access the capital markets to raise capital on favorable terms or to obtain additional financing for working capital, capital expenditures or acquisitions or to refinance existing indebtedness;

    placing restrictions on our ability to obtain additional financing, make investments, lease equipment, sell assets and engage in business combinations;

    placing us at a competitive disadvantage relative to competitors with lower levels of indebtedness in relation to their overall size or less restrictive terms governing their indebtedness; and

    making it more difficult for us to satisfy our obligations under the notes or other debt and increasing the risk that we may default on our debt obligations.

        Our leverage could have important consequences to investors in the notes. We will require substantial cash flow to meet our principal and interest obligations with respect to the notes and our other indebtedness. Our ability to make scheduled payments, to refinance our obligations with respect to our indebtedness or our ability to obtain additional financing in the future will depend on our financial and operating performance, which, in turn, is subject to prevailing economic conditions and to financial, business and other factors. We believe that we will have sufficient cash flow from operations and available borrowings under our Credit Agreement to service our indebtedness. However, a significant downturn in our business or other development adversely affecting our cash flow could materially impair our ability to service our indebtedness. If our cash flow and capital resources are insufficient to fund our debt service obligations, we may be forced to refinance all or a portion of our

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debt or sell assets. We cannot assure you that we would be able to refinance our existing indebtedness or sell assets on terms that are commercially reasonable.

We have a holding company structure in which our subsidiaries conduct our operations and own our operating assets.

        We are a holding company, and our operating subsidiaries conduct all of our operations and own all of our operating assets. We have no significant assets other than our interest in our operating subsidiaries. As a result, our ability to make required payments on the notes depends on the performance of our operating subsidiaries and their ability to distribute funds to us. The ability of our subsidiaries to make distributions to us may be restricted by, among other things, applicable state partnership laws and other laws and regulations. If we are unable to obtain the funds necessary to pay the principal amount at maturity of the notes, or to repurchase the notes upon the occurrence of a change of control, we may be required to adopt one or more alternatives, such as a refinancing of the notes or a sale of assets. We may not be able to refinance the notes or sell assets on acceptable terms, or at all.

Despite our current level of indebtedness, we may still be able to incur substantially more debt. This could further exacerbate the risks associated with our substantial indebtedness.

        We may be able to incur substantial additional indebtedness in the future, subject to certain limitations, including under our Credit Agreement, the indentures governing the Existing Senior Notes and the indenture that governing the notes. If new debt is added to our current debt levels, the related risks that we now face could increase. Our level of indebtedness could, for instance, prevent us from engaging in transactions that might otherwise be beneficial to us or from making desirable capital expenditures. This could put us at a competitive disadvantage relative to other less leveraged competitors that have more cash flow to devote to their operations. In addition, the incurrence of additional indebtedness could make it more difficult to satisfy our existing financial obligations, including those relating to the notes.

The notes and the guarantees are unsecured and effectively subordinated to our and our subsidiary guarantors' existing and future secured indebtedness.

        The notes and the guarantees are general unsecured senior obligations ranking effectively junior in right of payment to all existing and future secured debt of ours and that of any subsidiary guarantor, including obligations under our Credit Agreement and our Existing Senior Secured Notes, to the extent of the value of the collateral securing the debt. If we or any subsidiary guarantor is declared bankrupt, becomes insolvent or is liquidated or reorganized, any secured debt of ours or of such subsidiary guarantor will be entitled to be paid in full from our assets or the assets of such subsidiary guarantor, as applicable, securing that debt before any payment may be made with respect to the notes or the affected guarantees. Holders of the notes will participate ratably with all holders of our other unsecured indebtedness that does not rank junior to the notes, including all of our other general creditors, based upon the respective amounts owed to each holder or creditor, in our remaining assets. In any of the foregoing events, we cannot assure you that there will be sufficient assets to pay amounts due on the notes. As a result, holders of the notes would likely receive less, ratably, than holders of secured indebtedness.

The notes are structurally subordinated to all liabilities of our non-guarantor subsidiaries.

        The notes are structurally subordinated to the indebtedness and other liabilities of our subsidiaries that are not guaranteeing the notes. These non-guarantor subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts due pursuant to the notes, or to make any funds available therefor, whether by loans, distributions or other payments. Any right

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that we or the subsidiary guarantors have to receive any assets of any of the non-guarantor subsidiaries upon the liquidation or reorganization of those non-guarantor subsidiaries, and the consequent rights of holders of notes to realize proceeds from the sale of any of those non-guarantor subsidiaries' assets, are effectively subordinated to the claims of those non-guarantor subsidiaries' creditors, including trade creditors and holders of preferred equity interests of those non-guarantor subsidiaries. Accordingly, in the event of a bankruptcy, liquidation or reorganization of any of our non-guarantor subsidiaries, these non-guarantor subsidiaries will pay the holders of their debts, holders of preferred equity interests and their trade creditors before they will be able to distribute any of their assets to us. As of March 31, 2017, our non-guarantor subsidiaries had $17.7 million of outstanding indebtedness, of which $16.2 million was intercompany and is eliminated in consolidation, and owned approximately 1.3% of our consolidated assets.

Our variable rate indebtedness subjects us to interest rate risk, which could cause our debt service obligations to increase significantly.

        Borrowings under our Credit Agreement bear interest at variable rates and expose us to interest rate risk. If interest rates increase and we are unable to effectively hedge our interest rate risk, our debt service obligations on the variable rate indebtedness would increase even if the amount borrowed remained the same, and our cash available for servicing our indebtedness would decrease. A 0.125% change in interest rates on the $944 million of debt outstanding under our Revolving Credit Facility as of June 2, 2017 would result in an increase or decrease of our annual interest expense of $1.2 million, based on borrowings outstanding at June 2, 2017.

We may not have the funds necessary to finance the repurchase of the notes in connection with a change of control offer required by the indenture.

        Upon the occurrence of specific kinds of change of control events, the indenture governing the notes requires us to make an offer to repurchase all such notes at 101% of the principal amount thereof, plus any accrued and unpaid interest (and liquidated damages, if any) to the date of repurchase. However, it is possible that we will not have sufficient funds, or the ability to raise sufficient funds, at the time of the change of control to fund the required repurchase of the notes. In addition, restrictions under our Credit Agreement and the purchase agreement governing the Existing Senior Secured Notes may not allow us to make such a repurchase upon a change of control. If we could not refinance our Credit Agreement or Existing Senior Secured Notes or otherwise obtain a waiver from the holders of such debt, we would be prohibited from repurchasing the notes, which would constitute an event of default under the indenture. In addition, certain important corporate events, such as leveraged recapitalizations that would increase the level of our indebtedness, would not constitute a "Change of Control" under the indenture. Because the definition of change of control under our Credit Agreement differs from that under the indenture, there may be a change of control and resulting default under our Credit Agreement at a time when no change of control has occurred under that indenture. See "Description of Notes—Repurchase at the Option of Holders—Change of Control."

Holders of the notes may not be able to determine when a change of control giving rise to their right to have the notes repurchased has occurred following a sale of "substantially all" of our assets.

        The definition of change of control in the indenture that governs the notes includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of "all or substantially all" of the properties or assets of the Partnership and its subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of notes to require us to repurchase its notes as a result of a sale, lease, transfer, conveyance or other

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disposition of less than all of the assets of the Partnership and its subsidiaries taken as a whole to another person or group may be uncertain.

Holders of notes do not have the right to require us to repurchase notes following certain kinds of change of control events unless the change of control event is followed by a rating decline.

        Holders of notes do not have the right to require us to repurchase notes following certain kinds of change of control events unless the change of control event is followed by a rating decline. Moreover, because the change of control offer provisions of our existing senior notes do not include a requirement that the change of control event be followed by a rating decline in order to be triggered, we may be obligated to offer to purchase our existing senior notes following a change of control event that is not followed by a rating decline, even though holders of notes would not have such right.

Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from subsidiary guarantors.

        Under the federal bankruptcy law and comparable provisions of state fraudulent transfer laws, a guarantee of the notes could be voided, or claims in respect of a guarantee could be subordinated to all other debts of that subsidiary guarantor, if, among other things, the subsidiary guarantor, at the time it incurred the debt evidenced by its guarantee:

    received less than reasonably equivalent value or fair consideration for the incurrence of such guarantee;

    was insolvent or rendered insolvent by reason of such incurrence;

    was engaged in a business or transaction for which the subsidiary guarantor's remaining assets constituted unreasonably small capital; or

    intended to incur, or believed that it would incur, debts beyond its ability to pay such debts as they mature.

        In addition, any payment by that subsidiary guarantor pursuant to its guarantee could be voided and required to be returned to the subsidiary guarantor, or to a fund for the benefit of our creditors or the creditors of the guarantor.

        The measures of insolvency for purposes of these fraudulent transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a subsidiary guarantor would be considered insolvent if:

    the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all of its assets;

    if the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or

    it could not pay its debts as they become due.

        On the basis of historical financial information, recent operating history and other factors, we believe that each subsidiary guarantor, after giving effect to its guarantee of the notes, will not be insolvent, will not have unreasonably small capital for the business in which it is engaged and will not have incurred debts beyond its ability to pay such debts as they mature. We cannot assure you, however, as to what standard a court would apply in making these determinations or that a court would agree with our conclusions in this regard.

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If an active trading market does not develop for the new notes you may not be able to resell them.

        Prior to this offering, there was no trading market for the new notes, and we cannot assure you that an active trading market will develop. If no active trading market develops, you may not be able to resell your notes at their fair market value or at all. Future trading prices of the new notes will depend on many factors, including, among other things, our ability to consummate the exchange offer, prevailing interest rates, our operating results and the market for similar securities. We do not intend to apply to list the new notes on any securities exchange.

Many of the covenants contained in the indenture will terminate if the notes are rated investment grade by any two of S&P, Moody's and Fitch and no default has occurred and is continuing.

        Many of the covenants in the indenture governing the notes will terminate if the notes are rated investment grade by any two of S&P Global, Moody's Investor Service and Fitch Ratings, Inc.; provided that at such time no default has occurred and is continuing. The covenants will restrict, among other things, our ability to pay distributions, incur debt and to enter into certain other transactions. There can be no assurance that the notes will ever be rated investment grade. However, termination of these covenants would allow us to engage in certain transactions that would not have been permitted while these covenants were in force, and the effects of any such transactions will be permitted to remain in place even if the notes are subsequently downgraded below investment grade. See "Description of Notes—Certain Covenants—Covenant Termination."

Our tax treatment depends on our status as a partnership for U.S. federal income tax purposes. If the Internal Revenue Service (the "IRS") were to treat us as a corporation for federal income tax purposes, or otherwise subject us to entity-level taxation, it would reduce the amount of cash available for payment on the notes.

        Current law may change so as to cause us to be treated as a corporation for U.S. federal income tax purposes or otherwise subject us to entity-level taxation. For example, from time to time, the President of the United States and members of the U.S. Congress consider substantive changes to the existing federal income tax laws that affect publicly traded partnerships. We are unable to predict whether any such changes or any other proposals will ultimately be enacted. Moreover, any modification to federal income tax laws and regulations and interpretations of those laws and regulations may or may not be applied retroactively.

        Further, the U.S. Treasury Department and the IRS have issued proposed regulations interpreting the scope of the qualifying income requirement for publicly traded partnerships by providing industry-specific guidance with respect to activities that will generate qualifying income. Finalized regulations could change interpretations of the current law relating to the characterization of income as qualifying income and could modify the amount of our gross income we are able to treat as qualifying income for purposes of the qualifying income requirement.

        If we were treated as a corporation for U.S. federal income tax purposes, we would pay federal income tax on our taxable income at the corporate tax rate, which is currently a maximum of 35%, and would likely pay state income tax at varying rates. Treatment of us as a corporation would result in a material reduction in our anticipated cash flow, which could materially and adversely affect our ability to make payments on the notes and our other debt obligations and could cause a reduction in the value of the notes.

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EXCHANGE OFFER

    Purpose and Effect of the Exchange Offer

        We sold the old notes on February 22, 2017 pursuant to the purchase agreement, dated as of February 16, 2017, by and among us, our subsidiary guarantors and RBC Capital Markets, LLC and Deutsche Bank Securities Inc., as representative the initial purchasers named therein. The old notes were subsequently offered by the initial purchasers to qualified institutional buyers pursuant to Rule 144A under the Securities Act and to non-U.S. persons pursuant to Regulation S under the Securities Act.

        We sold the old notes in transactions that were exempt from or not subject to the registration requirements under the Securities Act. Accordingly, the old notes are subject to transfer restrictions. In general, you may not offer or sell the old notes unless either they are registered under the Securities Act or the offer or sale is exempt from, or not subject to, registration under the Securities Act and applicable state securities laws.

        In connection with the sale of the old notes, we entered into a registration rights agreement with the initial purchasers of the old notes. In that agreement, we agreed to use our commercially reasonable efforts to file an exchange offer registration statement after the closing date following the offering of the old notes. Now, to satisfy our obligations under the registration rights agreement, we are offering holders of the old notes who are able to make certain representations described below the opportunity to exchange their old notes for the new notes in the exchange offer. The exchange offer will be open for a period of at least 20 business days. During the exchange offer period, we will exchange the new notes for all old notes properly surrendered and not withdrawn before the expiration date. The new notes will be registered under the Securities Act, and the transfer restrictions, registration rights and provisions for additional interest relating to the old notes will not apply to the new notes.

        For each old note surrendered to us pursuant to the exchange offer, the holder of such old note will receive a new note having a principal amount equal to that of the surrendered old note. Interest on each new note will accrue from the last interest payment date on which interest was paid on the surrendered old note. The registration rights agreement also provides an agreement to include in the prospectus for the exchange offer certain information necessary to allow a broker-dealer who holds old notes that were acquired for its own account as a result of market-making activities or other ordinary course trading activities (other than old notes acquired directly from us or one of our affiliates) to exchange such old notes pursuant to the exchange offer and to satisfy the prospectus delivery requirements in connection with resales of new notes received by such broker-dealer in the exchange offer. We agreed to use commercially reasonable efforts to maintain the effectiveness of the exchange offer registration statement for these purposes for a period ending on the earlier of 180 days from the date on which the exchange offer registration statement is declared effective and the date on which the broker-dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities.

        The preceding agreement is needed because any broker-dealer who acquires old notes for its own account as a result of market-making activities or other trading activities is required to deliver a prospectus meeting the requirements of the Securities Act. This prospectus covers the offer and sale of the new notes pursuant to the exchange offer and the resale of new notes received in the exchange offer by any broker-dealer who held old notes acquired for its own account as a result of market-making activities or other trading activities, other than old notes acquired directly from us or one of our affiliates.

        Based on interpretations by the staff of the SEC set forth in no-action letters issued to third parties, we believe that the new notes issued pursuant to the exchange offer would in general be freely

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tradable after the exchange offer without further registration under the Securities Act. However, any purchaser of old notes who is an "affiliate" of ours or who intends to participate in the exchange offer for the purpose of distributing the related new notes:

    will not be able to rely on the interpretation of the staff of the SEC,

    will not be able to tender its old notes in the exchange offer, and

    must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the old notes unless such sale or transfer is made pursuant to an exemption from such requirements.

        Each holder of the old notes (other than certain specified holders) who desires to exchange old notes for the new notes in the exchange offer will be required to make the representations described below under "—Procedures for Tendering—Your Representations to Us."

        We further agreed to file with the SEC a shelf registration statement to register for public resale old notes held by any holder who provides us with certain information for inclusion in the shelf registration statement if:

    the exchange offer is not permitted by applicable law or SEC policy;

    for any reason the exchange offer is not consummated within 30 business days after the Effectiveness Target Date (as defined below); or

    prior to the 20th business day following the consummation of this offering, any holder notifies us that:

    the holder is prohibited by applicable law or SEC policy from participating in the exchange offer;

    the holder may not resell the new notes acquired in the exchange offer to the public without delivering a prospectus, and the prospectus contained in the exchange offer is not appropriate or available for such resales by such purchaser; or

    the holder is a broker-dealer and holds old notes acquired directly from us or one of our affiliates that are not freely tradeable, and such holder cannot participate in the exchange offer.

        We have agreed to use commercially reasonable efforts to file the shelf registration with the SEC on or before the 30 days after the occurrence of the events described in the first three bullets above, which date we refer to as the "shelf filing deadline," and to use commercially reasonable efforts to cause the shelf registration statement to be declared effective on or before 90 days after the shelf filing deadline. We have also agreed to use commercially reasonable efforts to keep the shelf registration statement continuously effective from the date on which the shelf registration statement is declared effective by the SEC until the earlier of the first anniversary of the effective date of such shelf registration statement and such time as all notes covered by the shelf registration statement have been sold or are freely tradeable. We refer to this period as the "shelf effectiveness period."

        If:

            (1)   the Issuers and the subsidiary guarantors become obligated under the registration rights agreement to file a shelf registration statement and fail to do so on or before the shelf filing deadline;

            (2)   any registration statement required by the registration rights agreement is not declared effective by the SEC on or prior to the date specified for such effectiveness (the "Effectiveness Target Date");

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            (3)   the Issuers and the subsidiary guarantors fail to consummate the exchange offer within 30 business days of the Effectiveness Target Date with respect to the exchange offer registration statement; or

            (4)   the shelf registration statement or the exchange offer registration statement is declared effective by the SEC but thereafter ceases to be effective or usable for its intended purpose (with such event referred to in clauses (1) through (4) above, a "Registration Default");

then the Issuers and the subsidiary guarantors will pay liquidated damages to each holder of notes, with respect to the first 90-day period immediately following the occurrence of the first Registration Default in an amount equal to one quarter of one percent (0.25%) per annum on the principal amount of notes held by such holder. The amount of the liquidated damages will increase by an additional one-quarter of one percent (0.25%) per annum on the principal amount of notes with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of liquidated damages for all Registration Defaults of one-half of one percent (0.50%) per annum. All accrued liquidated damages will be paid by the Issuers (or the subsidiary guarantors, if applicable) in the manner provided for with respect to the payment of interest in the Indenture as more fully set forth in the Indenture and the notes. Following the cure of all Registration Defaults, the accrual of liquidated damages will cease.

        Holders of the old notes will be required to make certain representations to us (as described below under "—Procedures for Tendering") in order to participate in the exchange offer and will be required to deliver information to be used in connection with the shelf registration statement and to provide comments on the shelf registration statement within the time periods set forth in the registration rights agreement in order to have their old notes included in the shelf registration statement.

        If we effect the registered exchange offer, we will be entitled to close the registered exchange offer 20 business days after its commencement as long as we have accepted all old notes validly tendered in accordance with the terms of the exchange offer and no brokers or dealers continue to hold any old notes.

        This summary of the material provisions of the registration rights agreement does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the registration rights agreement, a copy of which is filed as an exhibit to the registration statement that includes this prospectus.

        Except as set forth above, after consummation of the exchange offer, holders of old notes that are the subject of the exchange offer will have no registration or exchange rights under the registration rights agreement. See "—Consequences of Failure to Exchange."

    Terms of the Exchange Offer

        Subject to the terms and conditions described in this prospectus and in the letter of transmittal, we will accept for exchange any old notes properly tendered and not withdrawn prior to 5:00 p.m., New York City time, on the expiration date. We will issue new notes in a principal amount equal to the principal amount of old notes surrendered in the exchange offer. Old notes may be tendered only for new notes and only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

        The exchange offer is not conditioned upon any minimum aggregate principal amount of old notes being tendered for exchange.

        As of the date of this prospectus, $700.0 million in aggregate principal amount of the old notes is outstanding. This prospectus and the letter of transmittal are being sent to all registered holders of old

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notes. There will be no fixed record date for determining registered holders of old notes entitled to participate in the exchange offer.

        We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Securities and Exchange Commission. Old notes that the holders thereof do not tender for exchange in the exchange offer will remain outstanding and continue to accrue interest. These old notes will continue to be entitled to the rights and benefits such holders have under the indenture relating to the notes and the registration rights agreement.

        We will be deemed to have accepted for exchange properly tendered old notes when we have given oral or written notice of the acceptance to the exchange agent and complied with the applicable provisions of the registration rights agreement. The exchange agent will act as agent for the tendering holders for the purposes of receiving the new notes from us.

    Expiration Date

        The exchange offer will expire at 5:00 p.m., New York City time, on            , 20    , unless, in our sole discretion, we extend it.

    Extensions, Delays in Acceptance, Termination or Amendment

        We expressly reserve the right, at any time or various times, to extend the period of time during which the exchange offer is open. We may delay acceptance of any old notes by giving oral or written notice of such extension to their holders at any time until the exchange offer expires or terminates. During any such extensions, all old notes previously tendered will remain subject to the exchange offer, and we may accept them for exchange.

        In order to extend the exchange offer, we will notify the exchange agent orally or in writing of any extension. We will notify the registered holders of old notes of the extension by a press release issued no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date.

        Any such notice relating to the extension of the exchange offer will disclose the number of securities tendered as of the date of the notice, as required by Rule 14e-1(d) under the Exchange Act.

        We expressly reserve the right at our sole discretion:

    to delay accepting the old notes, provided that any such delay is done in a manner consistent with Rule 14e-1(c) of the Exchange Act;

    to extend the exchange offer;

    to terminate the exchange offer and not accept old notes not previously accepted if any of the conditions listed under "—Conditions to the Exchange Offer" are not satisfied or waived by us, by giving oral or written notice of such delay, extension or termination to the exchange agent; or

    to amend the terms of the exchange offer in any manner.

        Following the commencement of the exchange offer, we currently anticipate that we would only delay accepting old notes tendered in the exchange offer due to an extension of the expiration date.

        We will follow any delay in acceptance, extension or termination as promptly as practicable by oral or written notice to the exchange agent.

        Any such delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by oral or written notice thereof to the registered holders of old notes. If we amend the exchange offer in a manner that we determine to constitute a material change, we will promptly

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disclose such amendment by means of a prospectus supplement. The prospectus supplement will be distributed to the registered holders of the old notes. Depending upon the significance of the amendment and the manner of disclosure to the registered holders, we may extend the exchange offer. In the event of a material change in the exchange offer, including the waiver by us of a material condition, we will extend the exchange offer period, if necessary, so that at least five business days remain in the exchange offer period following notice of the material change.

        If we delay accepting any old notes or terminate the exchange offer, we will promptly return any old notes deposited pursuant to the exchange offer as required by Rule 14e-1(c).

    Conditions to the Exchange Offer

        We will not be required to accept for exchange, or exchange any new notes for, any old notes if the exchange offer, or the making of any exchange by a holder of old notes, would violate applicable law or any applicable interpretation of the staff of the SEC. Similarly, we may terminate the exchange offer as provided in this prospectus before accepting old notes for exchange in the event of such a potential violation.

        In addition, we will not be obligated to accept for exchange the old notes of any holder that has not made to us the representations described under "—Purpose and Effect of the Exchange Offer," "—Procedures for Tendering" and "Plan of Distribution" and such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to allow us to use an appropriate form to register the issuance of the new notes under the Securities Act.

        We expressly reserve the right to amend or terminate the exchange offer, and to reject for exchange any old notes not previously accepted for exchange, upon the occurrence of any of the conditions to the exchange offer specified above. We will give prompt oral or written notice of any extension, amendment, non-acceptance or termination to the holders of the old notes as promptly as practicable.

        These conditions are for our sole benefit, and we may assert them or waive them in whole or in part at any time or at various times in our sole discretion prior to the expiration of the exchange offer. If we fail at any time to exercise any of these rights, this failure will not mean that we have waived our rights. Each such right will be deemed an ongoing right that we may assert at any time or at various times prior to the expiration of the exchange offer.

        In addition, we will not accept for exchange any old notes tendered, and will not issue new notes in exchange for any such old notes, if at such time any stop order has been threatened or is in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indenture relating to the notes under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").

    Procedures for Tendering

        In order to participate in the exchange offer, you must properly tender your old notes to the exchange agent as described below. We will only issue new notes in exchange for old notes that you timely and properly tender. Therefore, you should allow sufficient time to ensure timely delivery of the old notes, and you should follow carefully the instructions on how to tender your old notes. It is your responsibility to properly tender your notes. We have the right to waive any defects. However, we are not required to waive defects and are not required to notify you of defects in your tender.

        If you have any questions or need help in exchanging your notes, please call the exchange agent, whose address and phone number are set forth in "Prospectus Summary—The Exchange Offer—Exchange Agent."

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        All of the old notes were issued in book-entry form, and all of the old notes are currently represented by global certificates held for the account of DTC. We have confirmed with DTC that the old notes may be tendered using the Automated Tender Offer Program, or ATOP, instituted by DTC. The exchange agent will establish an account with DTC for purposes of the exchange offer promptly after the commencement of the exchange offer, and DTC participants may electronically transmit their acceptance of the exchange offer by causing DTC to transfer their old notes to the exchange agent using the ATOP procedures. In connection with the transfer, DTC will send an "agent's message" to the exchange agent. The agent's message will state that DTC has received instructions from the participant to tender old notes and that the participant agrees to be bound by the terms of the letter of transmittal.

        By using the ATOP procedures to exchange old notes, you will not be required to deliver a letter of transmittal to the exchange agent. However, you will be bound by its terms just as if you had signed it.

        There is no procedure for guaranteed late delivery of the notes.

    Determinations Under the Exchange Offer

        We will determine, in our sole discretion, all questions as to the validity, form, eligibility, time of receipt, acceptance of tendered old notes and withdrawal of tendered old notes. Our determination will be final and binding. We reserve the absolute right to reject any old notes not properly tendered or any old notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right to waive any defects, irregularities or conditions of tender as to particular old notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, all defects or irregularities in connection with tenders of old notes must be cured within such time as we shall determine. Although we intend to notify holders of defects or irregularities with respect to tenders of old notes, neither we, the exchange agent nor any other person will incur any liability for failure to give such notification. Tenders of old notes will not be deemed made until such defects or irregularities have been cured or waived. Any old notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned to the tendering holder, unless otherwise provided in the letter of transmittal, promptly following the expiration date of the exchange.

    When We Will Issue New Notes

        In all cases, we will issue new notes for old notes that we have accepted for exchange under the exchange offer only after the exchange agent timely receives:

    a book-entry confirmation of such old notes into the exchange agent's account at DTC; and

    a properly transmitted agent's message.

    Return of Old Notes Not Accepted or Exchanged

        If we do not accept any tendered old notes for exchange or if old notes are submitted for a greater principal amount than the holder desires to exchange, the unaccepted or non-exchanged old notes will be returned without expense to their tendering holder. Such non-exchanged old notes will be credited to an account maintained with DTC. These actions will occur promptly after the expiration or termination of the exchange offer.

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    Your Representations to Us

        By agreeing to be bound by the letter of transmittal, you will represent to us that, among other things:

    any new notes that you receive will be acquired in the ordinary course of your business;

    you have no arrangement or understanding with any person or entity to participate in the distribution of the new notes;

    you are not our "affiliate," as defined in Rule 405 of the Securities Act;

    if you are a broker-dealer that will receive new notes for your own account in exchange for old notes, you acquired those notes as a result of market-making activities or other trading activities and you will deliver a prospectus (or, to the extent permitted by law, make available a prospectus) in connection with any resale of such new notes; and

    if you are a broker-dealer that participates in the exchange offer with respect to old notes acquired for your own account as a result of market-making activities or other trading activities, you have not entered into any arrangement or understanding with us or any of our "affiliates" to distribute the new notes.

    Withdrawal of Tenders

        Except as otherwise provided in this prospectus, you may withdraw your tender at any time prior to 5:00 p.m., New York City time, on the expiration date. For a withdrawal to be effective, you must comply with the appropriate procedures of DTC's ATOP system. Any notice of withdrawal must specify the name and number of the account at DTC to be credited with withdrawn old notes and otherwise comply with the procedures of DTC.

        We will determine all questions as to the validity, form, eligibility and time of receipt of notice of withdrawal. Our determination shall be final and binding on all parties. We will deem any old notes so withdrawn not to have been validly tendered for exchange for purposes of the exchange offer.

        Any old notes that have been tendered for exchange but are not exchanged for any reason will be credited to an account maintained with DTC for the old notes. This crediting will take place promptly after withdrawal, rejection of tender or termination of the exchange offer. You may retender properly withdrawn old notes by following the procedures described under "—Procedures for Tendering" above at any time prior to 5:00 p.m., New York City time, on the expiration date of the exchange offer.

    Fees and Expenses

        We will bear the expenses of soliciting tenders. The principal solicitation is being made by electronic mail; however, we may make additional solicitation by facsimile, telephone, mail or in person by our officers and regular employees and those of our affiliates.

        We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to broker-dealers or others soliciting acceptances of the exchange offer. We will, however, pay the exchange agent reasonable and customary fees for its services and reimburse it for its related reasonable out-of-pocket expenses.

        We will pay the cash expenses to be incurred in connection with the exchange offer. They include:

    all registration and filing fees and expenses;

    all fees and expenses of compliance with federal securities and state "blue sky" or securities laws;

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    accounting and legal fees, disbursements and printing, messenger and delivery services, and telephone costs; and

    related fees and expenses.

    Transfer Taxes

        We will pay all transfer taxes, if any, applicable to the exchange of old notes under the exchange offer. The tendering holder, however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if a transfer tax is imposed for any reason other than the exchange of old notes under the exchange offer.

    Consequences of Failure to Exchange

        If you do not exchange new notes for your old notes under the exchange offer you will remain subject to the existing restrictions on transfer of the old notes. In general, you may not offer or sell the old notes unless the offer or sale is either registered under the Securities Act or exempt from registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the old notes under the Securities Act.

    Accounting Treatment

        We will record the new notes in our accounting records at the same carrying value as the old notes. This carrying value is the aggregate principal amount of the old notes less any bond discount, as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes in connection with the exchange offer.

    Other

        Participation in the exchange offer is voluntary and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take.

        We may in the future seek to acquire untendered old notes in open market or privately-negotiated transactions, through subsequent exchange offers or otherwise. We have no present plans to acquire any old notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered old notes.

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RATIO OF EARNINGS TO FIXED CHARGES

        The following table presents the ratios of earnings to fixed charges of the Partnership for the periods indicated. For purposes of computing the ratios of earnings to fixed charges, earnings consist of income (loss) from continuing operations before income taxes plus fixed charges and loss (income) from continuing operations before income taxes attributable to non-controlling interests. Fixed charges consists of interest expense plus loss on early extinguishment of debt and the portion of rental expense estimated to relate to interest. The portion of rental expense estimated to relate to interest represents one-third of total operating lease rental expense, which is the portion estimated to represent interest.

 
  NGL Energy Partners LP  
 
  Year Ended
March 31,
2017
  Year Ended
March 31,
2016
  Year Ended
March 31,
2015
  Year Ended
March 31,
2014
  Year Ended
March 31,
2013
 

Ratio of earnings to fixed charges

    1.73x       (1)   1.22x     1.53x     1.75x  

(1)
For the year ended March 31, 2016, the ratio of earnings to fixed charges was less than 1:1. The partnership would have needed to generate an additional $199.3 million of earnings to achieve a 1:1 ratio.

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USE OF PROCEEDS

        The exchange offer is intended to satisfy our obligations under the registration rights agreement. We will not receive any proceeds from the issuance of the new notes in the exchange offer. In consideration for issuing the new notes as contemplated by this prospectus, we will receive old notes in a like principal amount. The form and terms of the new notes are identical in all respects to the form and terms of the old notes, except the new notes will be registered under the Securities Act and will not contain restrictions on transfer, registration rights or provisions for additional interest. Old notes surrendered in exchange for the new notes will be retired and cancelled and will not be reissued. Accordingly, the issuance of the new notes will not result in any change in outstanding indebtedness.

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DESCRIPTION OF NOTES

        You can find the definitions of certain terms used in this description under the subheading "—Definitions." In this description, the words "NGL Energy," "us," "our" and "we" refer only to NGL Energy Partners LP and not to any of its Subsidiaries, and the words "Finance Corp." refer solely to NGL Energy Finance Corp. The term "Issuers" refers to NGL Energy and Finance Corp., collectively.

        The Issuers will issue the new notes under an indenture dated as of the Issue Date (the " indenture "), among the Issuers, the Guarantors and U.S. Bank National Association, as trustee (the " trustee "), in exchange for the old notes issued under the indenture in a private transaction that was not subject to the registration requirements of the Securities Act. See "Notice to Investors." The terms of the notes will include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as amended (the " Trust Indenture Act ").

        The following description is a summary of the material provisions of the indenture. It does not restate the indenture in its entirety. We urge you to read the indenture because it, and not this description, defines your rights as holders of the new notes.

        The registered holder of a note will be treated as the owner of it for all purposes. Only registered holders will have rights under the indenture and all references to "holders" in this description are to registered holders of notes.

Brief Description of the Notes and the Note Guarantees

The Notes

        The new notes will:

    be general unsecured obligations of each of the Issuers;

    be non-recourse to our general partner;

    rank pari passu in right of payment with all existing and future unsubordinated Indebtedness of each of the Issuers, including the Existing Senior Notes;

    rank senior in right of payment to any future subordinated Indebtedness of each of the Issuers;

    be structurally subordinated to all obligations of any of our Subsidiaries;

    be unconditionally guaranteed by the Guarantors on a senior unsecured basis; and

    rank effectively junior in right of payment to all existing and future secured Indebtedness of each of the Issuers, including indebtedness under the Credit Agreement and the Existing Senior Secured Notes, which are secured by substantially all of the assets of NGL Energy and the Guarantors, to the extent of the assets of the Issuers constituting collateral securing such Indebtedness. See "Risk Factors—Risks Related to the Notes—The notes and the guarantees will be unsecured and effectively subordinated to our and our subsidiary guarantors' existing and future secured indebtedness." and "Risk Factors—Risks Related to the Notes—The notes and the guarantees will be structurally subordinated to all indebtedness of our non-guarantor subsidiaries."

The Note Guarantees

        Initially, the notes will be guaranteed by each Restricted Subsidiary (other than Finance Corp.) that is a Domestic Subsidiary and an obligor under the Credit Agreement. In the future, other

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Restricted Subsidiaries will be required to guarantee the notes under the circumstances described below under "—Covenants—Additional Note Guarantees." Each guarantee of the notes will:

    be a general unsecured obligation of the applicable Guarantor;

    rank pari passu in right of payment with all existing and future unsubordinated Indebtedness of such Guarantor, including the guarantees of the Existing Senior Notes;

    rank senior in right of payment to any future subordinated Indebtedness of such Guarantor; and

    rank effectively junior in right of payment to all existing and future secured Indebtedness of such Guarantor, including indebtedness under the Credit Agreement and the Existing Senior Secured Notes, to the extent of the assets of such Guarantor constituting collateral securing such Indebtedness.

        As of the Issue Date, all of our Restricted Subsidiaries will guarantee the notes, other than NGL Gateway Terminals, Inc., High Sierra Energy GP, LLC, Indigo Injection #3-1, LLC, Atlantic Propane, LLC, NGL Hutch, LLC, NGL Water Pipelines, LLC, Varata, LLC and NGL Solid Solutions, LLC. As of the Issue Date, none of these Subsidiaries guarantees (or is otherwise liable for) any Obligations under any Credit Facility, including the Credit Agreement.

        As of the Issue Date, all of our Subsidiaries will be "Restricted Subsidiaries." However, under the circumstances described below under the caption "—Covenants—Designation of Restricted and Unrestricted Subsidiaries," we will be permitted to designate certain of our Subsidiaries as "Unrestricted Subsidiaries." Our Unrestricted Subsidiaries will not be subject to many of the restrictive covenants in the indenture. In the event of a bankruptcy, liquidation or reorganization of any Unrestricted Subsidiary, such Unrestricted Subsidiary will pay the holders of its debt and its trade creditors before it will be able to distribute any of its assets to NGL Energy.

Principal, Maturity and Interest

        The Issuers will issue up to $500 million in aggregate principal amount of new notes in this exchange offer. The Issuers may issue additional notes under the indenture from time to time after this offering. Any issuance of additional notes is subject to all of the covenants in the indenture, including the covenant described below under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock." The notes and any additional notes subsequently issued under the indenture will be treated as a single class for all purposes under the indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. The Issuers will issue notes in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The notes will mature on March 1, 2025.

        Interest on the notes will accrue at the rate of 6.125% per annum and will be payable semiannually in arrears on March 1 and September 1, beginning on September 1, 2017. The Issuers will make each interest payment to the holders of record on the immediately preceding February 15 and August 15.

        Interest on the new notes will accrue from the date of original issuance of the old notes or, if interest has already been paid on the old notes, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. If an interest payment date falls on a day that is not a Business Day, the interest payment to be made on such interest payment date will be made on the next succeeding Business Day with the same force and effect as if made on such interest payment date, and no Liquidated Damages will accrue as a result of such delayed payment.

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Methods of Receiving Payments on the Notes

        If a holder of notes has given wire transfer instructions to NGL Energy, NGL Energy will pay all principal, interest and premium, if any, on that holder's notes in accordance with those instructions to an account in the United States of America. All other payments on the notes will be made at the office or agency of the paying agent and registrar in New York, New York, unless we elect to make interest payments by check mailed to the noteholders at their address set forth in the register of holders.

Paying Agent and Registrar for the Notes

        The trustee will initially act as paying agent and registrar. The Issuers may change the paying agent or registrar without prior notice to the holders of the notes, and NGL Energy or any of its Subsidiaries may act as paying agent or registrar.

Transfer and Exchange

        A holder may transfer or exchange notes in accordance with the provisions of the indenture. The registrar and the trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents in connection with a transfer of notes. Holders will be required to pay all taxes due on transfer. The Issuers will not be required to transfer or exchange any note selected for redemption. Also, the Issuers will not be required to transfer or exchange any note for a period of 15 days before a selection of notes to be redeemed or between a record date and the next succeeding interest payment date.

Note Guarantees

        Initially, all of the notes will be guaranteed on a senior unsecured basis by each of NGL Energy's current Restricted Subsidiaries (except Finance Corp.) that is a Domestic Subsidiary and an obligor under the Credit Agreement. In the future, Restricted Subsidiaries will be required to guarantee the notes under the circumstances described under "—Covenants—Additional Note Guarantees." These Note Guarantees will be joint and several obligations of the Guarantors. The obligations of each Guarantor under its Note Guarantee will be limited as necessary to prevent that Note Guarantee from constituting a fraudulent conveyance under applicable law, although this limitation may not be effective to prevent the Note Guarantees from being voided in bankruptcy. See "Risk Factors—Risks Related to the Notes—Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from subsidiary guarantors."

        A Guarantor may not sell or otherwise dispose of, in one or more related transactions, all or substantially all of its properties or assets to, or consolidate with or merge with or into (regardless of whether such Guarantor is the surviving Person), another Person, other than NGL Energy or another Guarantor, unless:

    (1)
    immediately after giving effect to such transaction or series of related transactions, no Default or Event of Default exists; and

    (2)
    either:

    (a)
    (i) such Guarantor is the surviving Person of such consolidation or merger or (ii) the Person acquiring the properties or assets in any such sale or other disposition or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) unconditionally assumes all the obligations of such Guarantor under the indenture (including its Note Guarantee) pursuant to a supplemental indenture satisfactory to the trustee; or

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      (b)
      such transaction or series of transactions does not violate the provisions of the indenture described under the caption "—Repurchase at the Option of Holders—Asset Sales."

        The Note Guarantee of a Guarantor will be released automatically:

    (1)
    in connection with any sale or other disposition of all or substantially all of the properties or assets of that Guarantor, by way of merger, consolidation or otherwise, to a Person that is not (either before or after giving effect to such transaction) NGL Energy or a Restricted Subsidiary of NGL Energy, if the sale or other disposition does not violate the "Asset Sales" provisions of the indenture described below under the caption "—Repurchase at the Option of Holders—Asset Sales";

    (2)
    in connection with any sale or other disposition of the Capital Stock of that Guarantor (by way of merger, consolidation or otherwise) to a Person that is not (either before or after giving effect to such transaction) NGL Energy or a Restricted Subsidiary, if the sale or other disposition does not violate the "Asset Sale" provisions of the indenture described below under the caption "—Repurchase at the Option of Holders—Asset Sales" and the Guarantor ceases to be a Restricted Subsidiary as a result of the sale or other disposition

    (3)
    if NGL Energy designates such Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of the indenture;

    (4)
    upon legal defeasance, covenant defeasance or satisfaction and discharge of the indenture as provided below under the captions "—Legal Defeasance and Covenant Defeasance" and "—Satisfaction and Discharge";

    (5)
    upon the liquidation or dissolution of such Guarantor, provided no Default or Event of Default occurs as a result thereof or has occurred or is continuing;

    (6)
    upon such Guarantor consolidating with, merging into or transferring all of its properties or assets to NGL Energy or another Guarantor, and as a result of, or in connection with, such transaction such Guarantor dissolves or otherwise ceases to exist; or

    (7)
    at such time as such Guarantor is no longer required to be a Guarantor pursuant to the provisions of the covenant described under the caption "—Covenants—Additional Note Guarantees."

Optional Redemption

        Except as described below in this section or in the next-to-last paragraph of "—Repurchase at the Option of Holders—Change of Control," the notes are not redeemable at our option until March 1, 2020. On and after March 1, 2020, NGL Energy may redeem all or a part of the notes, from time to time, at the following redemption prices (expressed as a percentage of the principal amount) plus accrued and unpaid interest, if any, on the notes redeemed to but excluding, the applicable redemption date (subject to the rights of holders of notes on the relevant record date to receive interest due on the relevant interest payment date) if redeemed during the twelve-month period beginning on March 1 of the years indicated below:

Year
  Redemption
Price
 

2020

    104.5938 %

2021

    103.0625 %

2022

    101.5313 %

2021 and thereafter

    100.000 %

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        At any time or from time to time prior to March 1, 2020, NGL Energy may also redeem all or part of the notes, at a redemption price equal to the Make-Whole Price, subject to the rights of holders of notes on the relevant record date to receive interest due on the relevant interest payment date.

        " Make-Whole Price " with respect to any notes to be redeemed, means an amount equal to the greater of:

    (1)
    100% of the principal amount of such notes; and

    (2)
    the sum of the present values of (a) the redemption price of such notes at March 1, 2020 (as set forth above) and (b) the remaining scheduled payments of interest from the redemption date to March 1, 2020 (not including any portion of such payments of interest accrued as of the redemption date) discounted back to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 50 basis points;

plus , in the case of both (1) and (2), accrued and unpaid interest on such notes, if any, to the redemption date.

        " Comparable Treasury Issue " means, with respect to notes to be redeemed, the U.S. Treasury security selected by an Independent Investment Banker as having a maturity most nearly equal to the period from the redemption date to March 1, 2020, that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity; provided that if such period is less than one year, then the U.S. Treasury security having a maturity of one year shall be used.

        " Comparable Treasury Price " means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if the trustee obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.

        " Independent Investment Banker " means RBC Capital Markets, LLC, Deutsche Bank Securities Inc. and TD Securities (USA) LLC or one of their respective successors, or, if such firms or their respective successors, if any, as the case may be, are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by NGL Energy.

        " Primary Treasury Dealer " means a U.S. government securities dealer in the City of New York.

        " Reference Treasury Dealer " means each of RBC Capital Markets, LLC, Deutsche Bank Securities Inc. and TD Securities (USA) LLC (or their respective affiliates that are Primary Treasury Dealers) and two additional Primary Treasury Dealers selected by NGL Energy, and their respective successors; provided , however , that if any such firm or any such successor, as the case may be, shall cease to be a Primary Treasury Dealer, NGL Energy shall substitute therefor another Primary Treasury Dealer.

        " Reference Treasury Dealer Quotations " means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, no later than the fourth Business Day preceding such redemption date.

        " Treasury Rate " means, with respect to any redemption date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15(159)" or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for

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the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the stated maturity, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined, and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated by NGL Energy no later than the fourth Business Day preceding the redemption date.

        The notice of redemption with respect to the foregoing redemption need not set forth the Make-Whole Price but only the manner of calculation thereof. NGL Energy will notify the trustee of the Make-Whole Price with respect to any redemption promptly after the calculation, and the trustee shall not be responsible for such calculation.

        Prior to March 1, 2020, NGL Energy may on any one or more occasions redeem up to 35% of the principal amount of the notes with an amount of cash not greater than the amount of the net cash proceeds from one or more Equity Offerings at a redemption price equal to 106.125% of the principal amount thereof, plus accrued and unpaid interest, if any, on the notes redeemed to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided that

    (1)
    at least 65% of the aggregate principal amount of the notes issued on the Issue Date (excluding notes held by NGL Energy and its Subsidiaries) remains outstanding after each such redemption; and

    (2)
    the redemption occurs within 180 days after the closing of such Equity Offering.

        Unless NGL Energy defaults in the payment of the redemption price, interest, if any, will cease to accrue on the notes or portions thereof called for redemption on the applicable redemption date.

Selection and Notice

        If less than all of the notes are to be redeemed at any time, the trustee will select notes for redemption on a pro rata basis (or, in the case of notes in global form, the trustee will select notes for redemption based on the method of The Depository Trust Company (" DTC ") that most nearly approximates a pro rata selection), unless otherwise required by law or applicable stock exchange requirements.

        No notes of $2,000 or less can be redeemed in part. Notices of optional redemption will be mailed by first class mail (or, in the case of notes in global form, pursuant to the applicable procedures of DTC) at least 30 but not more than 60 days before the redemption date to each holder of notes to be redeemed at its registered address, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the notes or a satisfaction and discharge of the indenture.

        If any note is to be redeemed in part only, the notice of redemption that relates to such note shall state the portion of the principal amount thereof to be redeemed. A new note in principal amount equal to the unredeemed portion thereof will be issued in the name of the holder thereof upon cancellation of the original note. Notes called for redemption become due on the date fixed for redemption, unless the redemption is subject to a condition precedent that is not satisfied or waived. On and after the redemption date, interest ceases to accrue on notes or portions of notes called for redemption, unless NGL Energy defaults in making the redemption payment. Any redemption or notice of redemption may, at our discretion, be subject to one or more conditions precedent and, in the

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case of a redemption with the net cash proceeds of an Equity Offering, be given prior to and conditioned on the completion of the related Equity Offering.

Open Market Purchases; No Mandatory Redemption or Sinking Fund

        We may at any time and from time to time purchase notes in the open market or otherwise. The Issuers are not required to make mandatory redemption or sinking fund payments with respect to the notes.

Repurchase at the Option of Holders

Change of Control

        If a Change of Control occurs, each holder of notes will have the right, except as provided below, to require NGL Energy to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that holder's notes pursuant to an offer (" Change of Control Offer ") on the terms set forth in the indenture. In the Change of Control Offer, NGL Energy will offer to make a cash payment (a " Change of Control Payment ") equal to 101% of the aggregate principal amount of notes repurchased plus accrued and unpaid interest on the notes repurchased to the date of purchase (the " Change of Control Purchase Date "), subject to the rights of holders of notes on the relevant record date to receive interest due on the relevant interest payment date. Within 30 days following any Change of Control, NGL Energy will send a notice to each holder of notes describing the transaction or transactions that constitute the Change of Control and offering to repurchase properly tendered notes on the Change of Control Purchase Date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent, pursuant to the procedures required by the indenture and described in such notice. NGL Energy will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the notes of any series as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the indenture, NGL Energy will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of the indenture by virtue of such compliance.

        Promptly following the expiration of the Change of Control Offer, NGL Energy will, to the extent lawful, accept for payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer. Promptly after such acceptance, NGL Energy will, on the Change of Control Purchase Date:

    (1)
    deposit with the paying agent an amount equal to the Change of Control Payment in respect of all notes or portions of notes properly tendered; and

    (2)
    deliver or cause to be delivered to the trustee the notes properly accepted together with an Officers' Certificate stating the aggregate principal amount of notes or portions of notes being purchased by NGL Energy.

        The paying agent will promptly mail or wire transfer to each holder of notes properly tendered the Change of Control Payment for such notes (or, if all the notes are then in global form, make such payment through the facilities of DTC), and the trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided that each such new note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. Any note so accepted for payment will cease to accrue interest on and after the Change of Control Purchase Date, unless NGL Energy defaults in making the Change of Control Payment. NGL Energy will publicly announce

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the results of the Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date.

        The provisions described above that require NGL Energy to make a Change of Control Offer following a Change of Control will be applicable regardless of whether any other provisions of the indenture are applicable, except as described in the following paragraph. Except as described above with respect to a Change of Control, the indenture will not contain provisions that permit the holders of the notes to require that the Issuers repurchase or redeem the notes in the event of a takeover, recapitalization or similar transaction.

        NGL Energy will not be required to make a Change of Control Offer upon a Change of Control, if (1) a third party makes the Change of Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in the indenture applicable to a Change of Control Offer made by NGL Energy and purchases all notes properly tendered and not withdrawn under the Change of Control Offer, (2) notice of redemption of all outstanding notes has been given pursuant to the indenture as described above under the caption "—Selection and Notice," unless and until there is a default in payment of the applicable redemption price, or (3) in connection with or in contemplation of any Change of Control, NGL Energy has made an offer to purchase (an " Alternate Offer ") any and all notes validly tendered at a cash price equal to or higher than the Change of Control Payment and has purchased all notes properly tendered in accordance with the terms of the Alternate Offer. Notwithstanding anything to the contrary contained in the indenture, a Change of Control Offer or Alternate Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer or Alternate Offer is made.

        In the event that holders of not less than 90% in aggregate principal amount of the outstanding notes accept a Change of Control Offer or Alternate Offer and NGL Energy (or any third party making such Change of Control Offer in lieu of NGL Energy as described above) purchases all of the notes held by such holders, NGL Energy will have the right, upon not less than 30 nor more than 60 days' prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate Offer described above, to redeem all of the notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest on the notes that remain outstanding, to the date of redemption (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).

        The definition of Change of Control includes a phrase relating to the sale, lease, transfer, conveyance or other disposition of "all or substantially all" of the properties or assets of NGL Energy and its Restricted Subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of notes to require the Issuers to repurchase its notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of NGL Energy and its Restricted Subsidiaries taken as a whole to another Person or group may be uncertain.

Asset Sales

        NGL Energy will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

    (1)
    NGL Energy or any of its Restricted Subsidiaries receives consideration (including by way of relief from, or any Person assuming responsibilities for, any liabilities, contingent or otherwise) at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and

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    (2)
    at least 75% of the consideration received in the Asset Sale by NGL Energy or such Restricted Subsidiaries (considered together on a cumulative basis, with all consideration received by NGL Energy or any of its Restricted Subsidiaries in respect of other Asset Sales consummated since the Measuring Date) is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:

    (a)
    any liabilities, as shown on NGL Energy's most recent consolidated balance sheet, of NGL Energy or any Restricted Subsidiary (other than contingent liabilities and Subordinated Debt) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement (or other legal documentation with the same effect) that releases NGL Energy or such Restricted Subsidiary from or indemnifies NGL Energy or such Restricted Subsidiary against further liability;

    (b)
    any securities, notes or other obligations received by NGL Energy or any such Restricted Subsidiary from such transferee that are, within 90 days after the Asset Sale, converted by NGL Energy or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and

    (c)
    any Additional Assets of the kind referred to in clause (2) of the next paragraph of this covenant.

        Within 365 days after the receipt of any Net Proceeds from an Asset Sale or, if NGL Energy has entered into a binding commitment or commitments with respect to any of the actions described in clauses (2) or (3) below, within the later of (x) 365 days after the receipt of any Net Proceeds from an Asset Sale and (y) 180 days after the entering into of such commitment or commitments, NGL Energy or one or more of its Restricted Subsidiaries may apply an amount equal to the amount of such Net Proceeds:

    (1)
    to repay, redeem or repurchase any Senior Debt provided that such repayment, redemption or repurchase may close up to 45 days after the end of such 365-day period;

    (2)
    to invest in or acquire Additional Assets; or

    (3)
    to make capital expenditures in respect of a Permitted Business.

Pending the final application of any Net Proceeds, NGL Energy or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by the indenture.

        An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in in clauses (1) through (3) of the immediately preceding paragraph will constitute " Excess Proceeds. " Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $30.0 million, the Issuers will make an offer (an " Asset Sale Offer ") to all holders of notes and all holders of other Indebtedness that is pari passu with the notes containing provisions similar to those set forth in the indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum principal amount of notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to but excluding the date of purchase, prepayment or redemption, subject to the rights of holders of notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, NGL Energy or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the indenture. If the aggregate principal amount of notes and other pari passu Indebtedness tendered in (or required to be

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prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the trustee will select the notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the trustee, a method that most nearly approximates pro rata selection as the trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by NGL Energy so that only notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

        Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of NGL Energy and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of the indenture described under the caption "—Repurchase at the Option of Holders—Change of Control" and/or the provisions described under the caption "—Covenants—Merger, Consolidation or Sale of Substantially All Assets" and not by the provisions of the indenture described under the caption "—Repurchase at the Option of Holders—Asset Sales."

        NGL Energy will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of the indenture, or compliance with the Asset Sale provisions of the indenture would constitute a violation of any such laws or regulations, NGL Energy will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of the indenture by virtue of such compliance.

        The agreements governing NGL Energy's other Indebtedness contain, and future agreements may contain, prohibitions of certain events, including events that would constitute a Change of Control or an Asset Sale and including repurchases of or other prepayments in respect of the notes. The exercise by the holders of notes of their right to require the Issuers to repurchase the notes upon a Change of Control or an Asset Sale could cause a default under these other agreements, even if the Change of Control or Asset Sale itself does not, due to the financial effect of such repurchases on NGL Energy. In the event a Change of Control or Asset Sale occurs at a time when NGL Energy is prohibited from purchasing notes, NGL Energy could seek the consent of its senior lenders to the purchase of notes or could attempt to refinance the borrowings that contain such prohibition. If NGL Energy does not obtain a consent or repay those borrowings, NGL Energy will remain prohibited from purchasing notes. In that case, NGL Energy's failure to purchase tendered notes would constitute an Event of Default under the indenture which could, in turn, constitute a default under the other indebtedness. Finally, the Issuers' ability to pay cash to the holders of notes upon a repurchase may be limited by NGL Energy's then-existing financial resources. See "Risk Factors—Risks Relating to the Notes—We may not have the funds necessary to finance the repurchase of the notes in connection with a change of control offer required by the indenture."

Covenants

Covenant Termination

        From and after the occurrence of an Investment Grade Rating Event, and provided that no Default or Event of Default shall have occurred and be continuing, we and our Restricted Subsidiaries

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will no longer be subject to the following provisions of the indenture (collectively, the " Terminated Covenants "):

    (a)
    clause (4) of the covenant described under "—Covenants—Merger, Consolidation or Sale of Substantially All Assets"; and

    (b)
    the provisions of the indenture described above under the following headings:

      "—Repurchase at the Option of Holders—Asset Sales";

      "—Covenants—Restricted Payments";

      "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock";

      "—Covenants—Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries"; and

      "—Covenants—Transactions with Affiliates."

        Furthermore, after an Investment Grade Rating Event, NGL Energy may not designate any of its Subsidiaries as Unrestricted Subsidiaries.

        Consequently, after the date on which we and our Restricted Subsidiaries are no longer subject to the Terminated Covenants, the notes will be entitled to substantially reduced covenant protection. However, we and our Restricted Subsidiaries will remain subject to all other covenants in the indenture. There can be no assurance that the notes will ever achieve or maintain an Investment Grade Rating.

Restricted Payments

        NGL Energy will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

    (1)
    declare or pay any dividend or make any other payment or distribution on account of NGL Energy's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving NGL Energy or any of its Restricted Subsidiaries) or to the direct or indirect holders of NGL Energy's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of NGL Energy and other than dividends or distributions payable to NGL Energy or a Restricted Subsidiary);

    (2)
    purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving NGL Energy) any Equity Interests of NGL Energy or any direct or indirect parent of NGL Energy;

    (3)
    make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Debt (other than intercompany Indebtedness between or among NGL Energy and any of its Restricted Subsidiaries), except a payment of interest or principal within one year of the Stated Maturity thereof; or

    (4)
    make any Restricted Investment

(all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as " Restricted Payments "), unless, at the time of and after giving effect to such Restricted Payment, no Default (except a Reporting Default) or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment and either:

    (I)
    if the Fixed Charge Coverage Ratio for NGL Energy's most recently ended four full fiscal quarters for which internal financial statements are available at the time of such Restricted

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      Payment (the " Trailing Four Quarters ") is not less than 1.75 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by NGL Energy and its Restricted Subsidiaries during the fiscal quarter in which such Restricted Payment is made (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11) of the next succeeding paragraph), is less than the sum, without duplication, of:

      (a)
      Available Cash from Operating Surplus with respect to NGL Energy's preceding fiscal quarter; plus

      (b)
      100% of the aggregate net cash proceeds, and the Fair Market Value of any Capital Stock of Persons engaged primarily in a Permitted Business or other long-term assets that are used or useful in a Permitted Business, in each case received by NGL Energy since the Measuring Date from (x) a contribution to the common equity capital of NGL Energy from any Person (other than a Restricted Subsidiary) or (y) the issuance and sale (other than to a Restricted Subsidiary) of Equity Interests (other than Disqualified Stock) of NGL Energy or from the issuance or sale (other than to a Restricted Subsidiary) of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of NGL Energy that have been converted into or exchanged for such Equity Interests (other than Disqualified Stock); plus

      (c)
      to the extent that any Restricted Investment that was made after the Measuring Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); plus

      (d)
      the amount equal to the net reduction in Restricted Investments since the Measuring Date resulting from (i) dividends, repayments of loans or advances, or other transfers of assets, in each case, to NGL Energy or any of its Restricted Subsidiaries from any Person (including, without limitation, any Unrestricted Subsidiary) or (ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries, in each case, to the extent such amounts have not been included in Available Cash for any period commencing on or after the Measuring Date (items (b), (c) and (d) being referred to as " Incremental Funds "); minus

      (e)
      the aggregate amount of Incremental Funds previously expended pursuant to this clause (I) and clause (II) below; or

    (II)
    if the Fixed Charge Coverage Ratio for the Trailing Four Quarters is less than 1.75 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by NGL Energy and its Restricted Subsidiaries during the fiscal quarter in which such Restricted Payment is made (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11) of the next succeeding paragraph), is less than the sum, without duplication, of:

    (a)
    $200.0 million, less the aggregate amount of all prior Restricted Payments made by NGL Energy and its Restricted Subsidiaries pursuant to this clause (II)(a) since the Measuring Date; plus

    (b)
    Incremental Funds to the extent not previously expended pursuant to this clause (II) or clause (I) above;

provided, however , that the only Restricted Payments permitted to be made pursuant to this clause (II) are distributions on NGL Energy's common and subordinated units plus the related distributions on the General Partner's general partner interest and any distributions with respect to incentive distribution rights.

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        The preceding provisions will not prohibit:

    (1)
    the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the provisions of the indenture;

    (2)
    the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent (a) contribution (other than from a Restricted Subsidiary) to the equity capital of NGL Energy or (b) sale (other than to a Restricted Subsidiary) of Equity Interests of NGL Energy (other than Disqualified Stock), with a sale being deemed substantially concurrent if such purchase, redemption, defeasance or other acquisition or retirement for value occurs not more than 120 days after such sale; provided, however , that the amount of any such net cash proceeds that are utilized for any such purchase, redemption, defeasance or other acquisition or retirement for value will be excluded (or deducted, if included) from the calculation of Available Cash and Incremental Funds;

    (3)
    the purchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Debt with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;

    (4)
    the payment of any dividend or distribution by a Restricted Subsidiary to the holders of its Equity Interests on a pro rata basis;

    (5)
    as long as no Default has occurred and is continuing or would be caused thereby, the purchase, redemption or other acquisition or retirement for value of any Equity Interests of NGL Energy or any Restricted Subsidiary held by any of current or former directors or employees of the General Partner, NGL Energy or of any Restricted Subsidiary; provided, however , that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests may not exceed $7.5 million in any fiscal year (with any portion of such $7.5 million amount that is unused in any fiscal year to be carried forward to successive fiscal years and added to such amount) plus, to the extent not previously applied or included, (a) the cash proceeds received by NGL Energy or any of its Restricted Subsidiaries from sales of Equity Interests of NGL Energy to employees or directors of the General Partner, NGL Energy or its Affiliates that occur after the Measuring Date (to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (I)(b) or (II)(b) of the first paragraph of this covenant) and (b) the cash proceeds of key man life insurance policies received by NGL Energy or any of its Restricted Subsidiaries after the Measuring Date;

    (6)
    the purchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise of unit options, warrants, incentives, rights to acquire Equity Interests or other convertible securities if such Equity Interests represent a portion of the exercise or exchange price thereof, and any purchase, redemption or other acquisition or retirement for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of unit options, warrants, incentives or rights to acquire Equity Interests;

    (7)
    payments of cash, dividends, distributions, advances or other Restricted Payments, in each case, made in lieu of the issuance of fractional shares or units in connection with the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests or in connection with the payment of a dividend or distribution to the holders of Equity Interests of NGL Energy in the form of Equity Interests (other than Disqualified Stock) of NGL Energy;

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    (8)
    the purchase, redemption or other acquisition or retirement for value of Equity Interests of NGL Energy or any Restricted Subsidiary representing fractional units of such Equity Interests in connection with a merger or consolidation involving NGL Energy or such Restricted Subsidiary or any other transaction permitted by the indenture;

    (9)
    payments to the General Partner constituting reimbursements for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as it may be amended or replaced thereafter, provided that any such amendment or replacement is not materially less favorable to NGL Energy in any material respect than the agreement prior to such amendment or replacement;

    (10)
    as long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of NGL Energy or any preferred securities of any Restricted Subsidiary issued on or after the Measuring Date in accordance with the covenant described below under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock";

    (11)
    in connection with an acquisition by NGL Energy or any of its Restricted Subsidiaries, the return to NGL Energy or any of its Restricted Subsidiaries of Equity Interests of NGL Energy or its Restricted Subsidiaries constituting a portion of the purchase consideration in settlement of indemnification claims or purchase price adjustments; and

    (12)
    the purchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Debt (a) at a purchase price not greater than 101% of the principal amount of such Subordinated Debt plus accrued interest in accordance with provisions similar to the covenant described under "—Repurchase at the Option of Holders—Change of Control" or (b) at a purchase price not greater than 100% of the principal amount thereof plus accrued interest in accordance with provisions similar to the covenant described under "—Repurchase at the Option of Holders—Asset Sales"; provided that, prior to or simultaneously with such purchase, redemption, defeasance or other acquisition or retirement for value, NGL Energy shall have complied with the provisions of the indenture described under the caption "—Repurchase at the Option of Holders—Change of Control" or "Repurchase at the Option of Holders—Asset Sales," as the case may be, and repurchased all notes validly tendered for payment in connection with the Change of Control Offer, Asset Sale Offer or Alternate Offer, as the case may be.

        The amount of all Restricted Payments (other than cash) will be the Fair Market Value, determined as of the date of the Restricted Payment, of the Restricted Investment proposed to be made or the asset(s) or securities proposed to be transferred or issued by NGL Energy or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment, except that the Fair Market Value of any non-cash dividend or distribution paid within 60 days after the date of its declaration shall be determined as of such date of declaration. The Fair Market Value of any Restricted Investment, assets or securities that are required to be valued by this covenant will be determined in accordance with the definition of that term. For purposes of determining compliance with this "Restricted Payments" covenant, (x) in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in the preceding clauses (1) through (12) of this covenant, or is permitted pursuant to the first paragraph of this covenant, NGL Energy will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such Restricted Payment (or portion thereof) on the date made or later reclassify such Restricted Payment (or portion thereof) in any manner that complies with this covenant; and (y) in the event a Restricted Payment is made pursuant to clause (I) or (II) of the first paragraph of this covenant, NGL Energy will be permitted to classify whether all or any portion thereof is being (and in the absence of such

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classification shall be deemed to have classified the minimum amount possible as having been) made with Incremental Funds.

Incurrence of Indebtedness and Issuance of Preferred Stock

        NGL Energy will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, " incur "; with " incurrence " having a correlative meaning) any Indebtedness (including Acquired Debt), and NGL Energy will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however , that NGL Energy may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, if the Fixed Charge Coverage Ratio for NGL Energy's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.

        Notwithstanding the foregoing, the first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness or issuances of Disqualified Stock or preferred stock, as applicable (collectively, " Permitted Debt "):

    (1)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of NGL Energy and its Restricted Subsidiaries thereunder) not to exceed the greater of (a) $2.45 billion and (b) $700.0 million plus 35.0% of the Total Assets of NGL Energy determined on the date of such incurrence;

    (2)
    the incurrence by NGL Energy or its Restricted Subsidiaries of Existing Indebtedness;

    (3)
    the incurrence by the Issuers and the Guarantors of Indebtedness represented by (a) the notes and the related Note Guarantees to be issued on the Issue Date and (b) the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;

    (4)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of NGL Energy or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extend, renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4) at any time; provided that, immediately after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (4) and then outstanding does not exceed the greater of (a) $75.0 million and (b) 3.25% of the Total Assets of NGL Energy;

    (5)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease, discharge or otherwise retire for value, any Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of NGL Energy, or Indebtedness (other than intercompany Indebtedness) or preferred stock of any Restricted Subsidiary, in

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      each case that was permitted by the indenture to be incurred under the first paragraph of this covenant or clause (2), (3), (4), (13), (14) or (15) of this paragraph or this clause (5);

    (6)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of intercompany Indebtedness between or among NGL Energy and any of its Restricted Subsidiaries; provided, however , that:

    (a)
    if NGL Energy or any Guarantor is the obligor on such Indebtedness and the payee is not NGL Energy or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the notes, in the case of NGL Energy, or the Note Guarantee, in the case of a Guarantor; and

    (b)
    (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than NGL Energy or a Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither NGL Energy nor a Restricted Subsidiary, will be deemed, in each case, to constitute an incurrence of such Indebtedness by NGL Energy or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);

    (7)
    the issuance by any of NGL Energy's Restricted Subsidiaries to NGL Energy or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however , that:

    (a)
    any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than NGL Energy or a Restricted Subsidiary; and

    (b)
    any sale or other transfer of any such preferred stock to a Person that is neither NGL Energy nor a Restricted Subsidiary, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (7);

    (8)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes;

    (9)
    the Guarantee by NGL Energy or any of its Restricted Subsidiaries of Indebtedness of NGL Energy or a Restricted Subsidiary to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the notes, then the Guarantee must be subordinated or pari passu , as applicable, to the same extent as the Indebtedness Guaranteed;

    (10)
    the incurrence by NGL Energy or any Restricted Subsidiary of Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of NGL Energy and its Restricted Subsidiaries;

    (11)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit; provided that, upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;

    (12)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary or any Joint Venture but only to the extent that such liability is the result of NGL Energy's or any such Restricted Subsidiary's being a general partner or member of, or owner of an Equity Interest in, such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness; provided that, immediately after

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      giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (12) and then outstanding does not exceed $25.0 million;

    (13)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness;

    (14)
    the incurrence by any Foreign Subsidiary of Indebtedness that, in the aggregate together with all other Indebtedness of all Foreign Subsidiaries (including all Permitted Refinancing Indebtedness incurred to extend, renew, refund, refinance, replace, defease, discharge or otherwise retire for value any Indebtedness incurred pursuant to this clause (14)), does not exceed $50.0 million; and

    (15)
    the incurrence by NGL Energy or any of its Restricted Subsidiaries of additional Indebtedness and the issuance by NGL Energy of any Disqualified Stock, provided that, immediately after giving effect to any such incurrence or issuance, the amount of all such Indebtedness and Disqualified Stock incurred or issued pursuant to this clause (15) and then outstanding (including all Indebtedness and Disqualified Stock incurred or issued to Refinance any Indebtedness or Disqualified Stock incurred or issued pursuant to this clause (15)) does not exceed the greater of (a) $75.0 million and (b) 3.25% of the Total Assets of NGL Energy determined on the date of such incurrence.

        NGL Energy will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of NGL Energy or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the notes or the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of NGL Energy or any Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.

        For purposes of determining compliance with this "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant, in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (15) above, or is entitled to be incurred pursuant to the first paragraph of this covenant, NGL Energy will be permitted in its sole discretion to divide, redivide, classify or reclassify such item of Indebtedness on the date of its incurrence, and later divide, redivide, classify or reclassify all or a portion of such item of Indebtedness, in any manner that complies with this covenant. Indebtedness under Credit Facilities outstanding on the date on which notes are first issued and authenticated under the indenture will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest or preferred stock dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of any obligation of NGL Energy or any Restricted Subsidiary as Indebtedness due to a change in accounting principles, and the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this covenant; provided that, in each such case, the amount thereof is included in Fixed Charges of NGL Energy as accrued to the extent required by the definition of such term.

        For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable

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U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that NGL Energy or any Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The principal amount of any Permitted Refinancing Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.

Liens

        NGL Energy will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than Permitted Liens) securing Indebtedness upon any of their property or assets, now owned or hereafter acquired, unless the notes or any Note Guarantee are secured on an equal and ratable basis with the Indebtedness so secured until such time as such Indebtedness is no longer secured by a Lien (other than a Permitted Lien).

        Any Lien securing the notes or Note Guarantees created pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the unconditional release and discharge of the initial Lien whose existence resulted in the creation of such Lien securing the notes or Note Guarantees.

Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

        NGL Energy will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

    (1)
    pay dividends or make any other distributions on its Capital Stock to NGL Energy or any of its Restricted Subsidiaries, or pay any Indebtedness owed to NGL Energy or any of its Restricted Subsidiaries; provided that the priority that any series of preferred stock of a Restricted Subsidiary has in receiving dividends or liquidating distributions before dividends or liquidating distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this covenant;

    (2)
    make loans or advances to NGL Energy or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to NGL Energy or any such Restricted Subsidiary to other Indebtedness incurred by NGL Energy or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or

    (3)
    sell, lease or transfer any of its properties or assets to NGL Energy or any of its Restricted Subsidiaries.

        However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:

    (1)
    agreements governing the Credit Agreement, any Existing Indebtedness or any Credit Facilities or any other agreements or instruments, in each case as in effect on the Issue Date and any amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings of those agreements or the

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      Indebtedness to which they relate; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings are, in the reasonable good faith judgment of the Chief Financial Officer of the General Partner, not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date;

    (2)
    the indenture, the notes and the Note Guarantees;

    (3)
    agreements governing other Indebtedness permitted to be incurred under the provisions of the covenant described above under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions therein are, in the reasonable good faith judgment of the Chief Financial Officer of the General Partner, not materially more restrictive, taken as a whole, than the provisions contained in the Credit Agreement and in the indenture as in effect on the Issue Date;

    (4)
    the issuance of preferred stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such preferred stock is permitted pursuant to the covenant described under the caption "—Incurrence of Indebtedness and Issuance of Preferred Stock" and the terms of such preferred stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such preferred stock prior to paying any dividends or making any other distributions on such other Capital Stock);

    (5)
    applicable law, rule, regulation, order, approval, license, permit or similar restriction;

    (6)
    any instrument governing Indebtedness or Capital Stock of a Person acquired by NGL Energy or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired and any amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings thereof; provided that, the encumbrances or restrictions contained in any such amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings are, in the reasonable good faith judgment of the Chief Financial Officer of the General Partner, not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided , further , that, in the case of Indebtedness, such Indebtedness was permitted by the terms of the indenture to be incurred;

    (7)
    customary non-assignment provisions in contracts or licenses, easements or leases, in each case, entered into in the ordinary course of business;

    (8)
    purchase money obligations, security agreements or mortgage financings for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of the preceding paragraph;

    (9)
    any agreement for the sale or other disposition of the Equity Interests in, or all or substantially all of the properties or assets of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;

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    (10)
    Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

    (11)
    Liens permitted to be incurred under the provisions of the covenant described above under the caption "—Covenants—Liens" that limit the right of the debtor to dispose of the assets subject to such Liens;

    (12)
    provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of NGL Energy's Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;

    (13)
    any instrument governing Indebtedness of a FERC Subsidiary; provided that such Indebtedness was otherwise permitted by the terms of the indenture to be incurred;

    (14)
    encumbrances or restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

    (15)
    any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisition;

    (16)
    Hedging Obligations permitted from time to time under the indenture; and

    (17)
    Indebtedness incurred or Capital Stock issued by any Restricted Subsidiary; provided that the restrictions contained in the agreements or instruments governing such Indebtedness or Capital Stock (a) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement or instrument or (b) will not materially affect NGL Energy's ability to make principal, interest and premium, if any, on the notes, as determined in the reasonable good faith judgment of the Chief Executive Officer and the Chief Financial Officer of the General Partner.

Merger, Consolidation or Sale of Assets

        Neither of the Issuers may (1) consolidate or merge with or into another Person (regardless of whether such Issuer is the surviving entity), or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless:

    (1)
    either: (a) such Issuer is the surviving entity; or (b) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided , however , that Finance Corp. may not consolidate or merge with or into any Person other than a corporation satisfying such requirement so long as NGL Energy is not a corporation;

    (2)
    the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of such Issuer under the notes and the indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture or other agreement reasonably satisfactory to the trustee;

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    (3)
    immediately after such transaction, no Default or Event of Default exists;

    (4)
    in the case of a transaction involving NGL Energy and not Finance Corp., immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the same had occurred at the beginning of the applicable four-quarter period, either (a) NGL Energy or the Person formed by or surviving any such consolidation or merger (if other than NGL Energy), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described above under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock," or (b) the Fixed Charge Coverage Ratio of NGL Energy or the Person formed by or surviving any such consolidation or merger (if other than NGL Energy), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, is equal to or greater than the Fixed Charge Coverage Ratio of NGL Energy immediately prior to such transaction; and

    (5)
    such Issuer has delivered to the trustee an Officers' Certificate and an opinion of counsel, each stating that such consolidation, merger or disposition and, if a supplemental indenture is required, such supplemental indenture, comply with the indenture.

        Notwithstanding the restrictions described in the foregoing clause (4), any Restricted Subsidiary (other than Finance Corp.) may consolidate with, merge into or dispose of all or part of its properties or assets to NGL Energy without complying with the preceding clause (4) in connection with any such consolidation, merger or disposition.

        Notwithstanding the second preceding paragraph, NGL Energy is permitted to reorganize as any other form of entity, provided that:

    (1)
    the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of NGL Energy into a form of entity other than a limited partnership formed under Delaware law;

    (2)
    the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia;

    (3)
    the entity so formed by or resulting from such reorganization assumes all the obligations of NGL Energy under the notes and the indenture (and the Registration Rights Agreement, if any obligations thereunder remain unsatisfied) pursuant to a supplemental indenture or other agreement in a form reasonably satisfactory to the trustee;

    (4)
    immediately after such reorganization no Default or Event of Default exists; and

    (5)
    such reorganization is not materially adverse to the holders or Beneficial Owners of the notes (for purposes of this clause (5), a reorganization will not be considered materially adverse to the holders or Beneficial Owners of the notes solely because the successor or survivor of such reorganization (a) is subject to federal or state income taxation as an entity or (b) is considered to be an "includible corporation" of an affiliated group of corporations within the meaning of Section 1504(b) of the Internal Revenue Code or any similar state or local law).

        For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries, which properties or assets, if held by NGL Energy instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties or assets of NGL Energy on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of NGL Energy.

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        Notwithstanding anything in the indenture to the contrary, in the event that NGL Energy becomes a corporation or NGL Energy or the Person formed by or surviving any consolidation or merger (permitted in accordance with the terms of the indenture) is a corporation, Finance Corp. may be merged into NGL Energy or it may be dissolved and cease to be an Issuer.

        Upon any consolidation or merger or any sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties or assets of an Issuer in accordance with the foregoing in which such Issuer is not the surviving entity, the surviving Person formed by such consolidation or into or with which such Issuer is merged or to which such sale, assignment, transfer, conveyance, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, such Issuer under the indenture with the same effect as if such surviving Person had been named as such Issuer in the indenture, and thereafter (except in the case of a lease of all or substantially all of such Issuer's properties or assets), such Issuer will be relieved of all obligations and covenants under the indenture and the notes.

        Although there is a limited body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve "all or substantially all" of the properties or assets of a Person.

Transactions with Affiliates

        NGL Energy will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of NGL Energy (each, an " Affiliate Transaction "), unless:

    (1)
    the Affiliate Transaction is on terms that are no less favorable to NGL Energy or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by NGL Energy or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of NGL Energy, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to NGL Energy or the relevant Restricted Subsidiary from a financial point of view; and

    (2)
    NGL Energy delivers to the trustee:

    (a)
    with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million but less than or equal to $40.0 million, an Officers' Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this covenant; and

    (b)
    with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $40.0 million, a resolution of the Board of Directors of NGL Energy set forth in an Officers' Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this covenant and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by either the Conflicts Committee of the Board of Directors of NGL Energy (so long as the members of the Conflicts Committee approving the Affiliate Transaction or series of related Affiliate Transactions are disinterested) or a majority of the disinterested members of the Board of Directors of NGL Energy, if any.

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        The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph:

    (1)
    any employment, consulting or similar agreement or arrangement, employee benefit plan, equity award, equity option, equity appreciation, officer or director indemnification agreement, restricted unit agreement, severance agreement or other compensation plan or arrangement entered into by the General Partner, NGL Energy or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities made pursuant thereto;

    (2)
    transactions between or among NGL Energy and/or its Restricted Subsidiaries;

    (3)
    transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of NGL Energy solely because NGL Energy owns, directly or through a Subsidiary, an Equity Interest in, or controls, such Person;

    (4)
    payment of reasonable fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of, and compensation paid to, and indemnity or insurance provided on behalf of, officers, directors, employees or consultants of the General Partner, NGL Energy or any of its Restricted Subsidiaries, including, but not limited to, reimbursement or advancement of out-of-pocket expenses and provisions of officers' and directors' liability insurance;

    (5)
    any issuance of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of NGL Energy;

    (6)
    Restricted Payments that do not violate the provisions of the indenture described above under the caption "—Covenants—Restricted Payments" or any Permitted Investments;

    (7)
    payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as it may be amended, provided that any such amendment is not less favorable to NGL Energy in any material respect than the agreement prior to such amendment;

    (8)
    transactions between NGL Energy or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of NGL Energy, and such common director is the sole cause for such other Person to be deemed an Affiliate of NGL Energy or any of its Restricted Subsidiaries; provided , however , that such director abstains from voting as a member of the Board of Directors of NGL Energy on any transaction with such other Person;

    (9)
    (a) guarantees by NGL Energy or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by NGL Energy or any of its Restricted Subsidiaries of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Unrestricted Subsidiaries;

    (10)
    payments to an Affiliate in respect of the notes or the Note Guarantees or any other Indebtedness of NGL Energy or any Restricted Subsidiary on the same basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates;

    (11)
    payment of loans or advances to employees not to exceed $5.0 million in the aggregate at any one time outstanding;

    (12)
    any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of NGL Energy or any Restricted Subsidiary if such Person is treated no more favorably

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      than the other holders of Indebtedness or Capital Stock of NGL Energy or such Restricted Subsidiary;

    (13)
    transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of the indenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), not materially less favorable to NGL Energy and its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by NGL Energy or such Restricted Subsidiary with an unrelated person, in the good faith determination of NGL Energy's Board of Directors or any officer of NGL Energy involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;

    (14)
    any transaction in which NGL Energy or any of its Restricted Subsidiaries, as the case may be, delivers to the trustee a letter from an accounting, appraisal, advisory or investment banking firm of national standing stating that such transaction is fair to NGL Energy or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of the preceding paragraph; and

    (15)
    in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by NGL Energy or any of its Restricted Subsidiaries and third parties, or if neither NGL Energy nor any of its Restricted Subsidiaries has entered into a similar contract with a third party, then the terms of which are no less favorable than those available from third parties on an arm's-length basis.

Business Activities of Finance Corp.

        Finance Corp. will not hold any material assets, become liable for any material obligations, engage in any trade or business, or conduct any business activity, other than the issuance of capital stock to NGL Energy, the incurrence of Indebtedness as a co-issuer, co-obligor or guarantor of Indebtedness incurred by NGL Energy (including without limitation the notes) that is permitted to be incurred by NGL Energy under the covenant described under "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" above, and activities incidental thereto.

Additional Note Guarantees

        If, on any date after the Issue Date, any Domestic Subsidiary that is not already a Guarantor, Guarantees (or otherwise becomes liable for) any Obligations under any Credit Facility, including the Credit Agreement, then, within 20 Business Days after such date, such Domestic Subsidiary will unconditionally Guarantee the notes and concurrently become a Guarantor by executing a supplemental indenture in substantially the form specified in the indenture. Each Note Guarantee of a Guarantor will be released automatically at such time as such Guarantor is discharged or otherwise released from all its Obligations in respect of its Guarantee of (or other liability for) any Obligations under any Credit Facility; provided that such discharge or other release did not result directly from payment by such Guarantor in satisfaction of (a) its liability as a guarantor pursuant to such Guarantee, or (b) its primary liability for such Obligations (after demand or default under such Credit Facility). Furthermore, each Note Guarantee shall be subject to release as described under "—Note Guarantees."

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Designation of Restricted and Unrestricted Subsidiaries

        The Board of Directors of NGL Energy may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by NGL Energy and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the covenant described above under the caption "—Covenants—Restricted Payments" or under one or more clauses of the definition of Permitted Investments, as determined by NGL Energy. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of NGL Energy may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.

        Any designation of a Subsidiary of NGL Energy as an Unrestricted Subsidiary will be evidenced to the trustee by filing with the trustee a certified copy of a resolution of the Board of Directors of NGL Energy giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by the covenant described above under the caption "—Covenants—Restricted Payments." If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of the indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under the covenant described under the caption "—Incurrence of Indebtedness and Issuance of Preferred Stock," NGL Energy will be in default of such covenant.

        The Board of Directors of NGL Energy may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if: (1) such Indebtedness is permitted under the covenant described under the caption "—Incurrence of Indebtedness and Issuance of Preferred Stock," calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Reports

        Regardless of whether required by the rules and regulations of the SEC, so long as any notes are outstanding, NGL Energy will file with the SEC (unless the SEC will not accept such a filing) within the time periods specified in the SEC's rules and regulations, and upon request, NGL Energy will furnish (without exhibits) to the trustee for delivery to the holders of the notes:

    (1)
    all quarterly and annual reports that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if NGL Energy were required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report thereon by NGL Energy's certified independent accountants; and

    (2)
    all current reports that would be required to be filed with the SEC on Form 8-K if NGL Energy were required to file such reports.

        NGL Energy will be deemed to have furnished such reports and information described above to the holders of Notes (and the trustee shall be deemed to have delivered such reports and information to the holders of the notes) if NGL Energy has filed such reports or information, respectively, with the SEC using the EDGAR filing system (or any successor filing system of the SEC) or, if the SEC will not

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accept such reports or information, if NGL Energy has posted such reports or information, respectively, on its website, and such reports or information, respectively, are available to holders of notes through internet access.

        For the avoidance of doubt, (a) such information will not be required to contain the separate financial information for Guarantors as contemplated by Rule 3-10 of Regulation S-X or any financial statements of unconsolidated subsidiaries or 50% or less owned Persons as contemplated by Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X, or in each case any successor provisions, and (b) such information shall not be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any non-GAAP financial measures contained therein.

        Except as provided above, all such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports.

        If NGL Energy has designated any of its Subsidiaries as Unrestricted Subsidiaries, then, to the extent material, the quarterly and annual financial information required by the preceding paragraphs will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management's Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of NGL Energy and its Restricted Subsidiaries separate from the financial condition and results of operations of its Unrestricted Subsidiaries.

        Any and all Defaults or Events of Default arising from a failure to furnish in a timely manner any financial information required by this covenant shall be deemed cured (and NGL Energy shall be deemed to be in compliance with this covenant) upon furnishing such financial information as contemplated by this covenant (but without regard to the date on which such financial statement or report is so furnished); provided that such cure shall not otherwise affect the rights of the holders under "—Events of Defaults and Remedies" if the principal of, premium, if any, on, and interest, if any, on, the notes have been accelerated in accordance with the terms of the indenture and such acceleration has not been rescinded or cancelled prior to such cure.

        In addition, NGL Energy will hold and participate in annual conference calls with the holders of the notes, beneficial owners of the notes, bona fide prospective investors, securities analysts and market makers to discuss the financial information required to be furnished pursuant to clause (1) above no later than ten Business Days after distribution of such financial information. NGL Energy shall be permitted to combine this conference call with any other conference call for other debt or equity holders or lenders.

        In addition, NGL Energy and the Guarantors agree that, for so long as any notes remain outstanding, if at any time they are not required to file with the SEC the reports required by the preceding paragraphs, they will furnish to the holders of notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Events of Default and Remedies

        Each of the following is an "Event of Default" with respect to the notes:

    (1)
    default for 30 days in the payment when due of interest on the notes;

    (2)
    default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the notes;

    (3)
    failure by NGL Energy to comply with its obligations under "—Covenants—Merger, Consolidation or Sale of Substantially All Assets" or to consummate a purchase of notes when

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      required pursuant to the covenants described under the caption "—Repurchase at the Option of Holders";

    (4)
    failure by NGL Energy or any of its Restricted Subsidiaries for 30 days after written notice from the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding notes to comply with the provisions described under the captions "—Covenants—Restricted Payments" or "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" or to comply with the provisions described under the captions "—Repurchase at the Option of Holders" to the extent not described in clause (3) above;

    (5)
    (a) except as addressed in subclause (b) of this clause (5), failure by NGL Energy or any of its Restricted Subsidiaries for 60 days after written notice from the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding notes to comply with any of the other agreements in the indenture or the notes or (b) failure by NGL Energy for 180 days after notice from the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding notes to comply with the covenant described under the caption "—Covenants—Reports";

    (6)
    default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by NGL Energy or any of its Restricted Subsidiaries (or the payment of which is guaranteed by NGL Energy or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default:

    (a)
    is caused by a failure to pay principal of, premium on, if any, or interest, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a " Payment Default "); or

    (b)
    results in the acceleration of such Indebtedness prior to its Stated Maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $30.0 million or more; provided that if, prior to any acceleration of the notes, (i) any such default is cured or waived, (ii) any such acceleration of such Indebtedness is rescinded, or (iii) such Indebtedness is repaid, within a period of 10 Business Days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, any Default or Event of Default (but not any acceleration of the notes) shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree;

    (7)
    failure by NGL Energy or any Significant Subsidiary or group of NGL Energy's Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for NGL Energy and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final judgments (entered by a court or courts of competent jurisdiction) aggregating in excess of $30.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 days;

    (8)
    except as permitted by the indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee, except, in each case, by reason of the release of such Note Guarantee in accordance with the indenture; and

    (9)
    certain events of bankruptcy or insolvency described in the indenture with respect to NGL Energy, Finance Corp. or any of NGL Energy's Restricted Subsidiaries that is a Significant

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      Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary.

        The indenture will provide that in the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to NGL Energy, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, all then outstanding notes will become due and payable immediately without further action or notice. However, the effect of such provision may be limited by applicable law. If any other Event of Default occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding notes may declare all of the notes to be due and payable immediately by notice in writing to NGL Energy and, in case of a notice by holders, also to the trustee specifying the respective Event of Default and that it is a notice of acceleration.

        Holders of the notes may not enforce the indenture or the notes except as provided in the indenture. Subject to certain limitations, holders of a majority in aggregate principal amount of the then outstanding notes may direct the trustee in its exercise of any trust or power. The trustee may withhold from holders of the notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or premium, if any.

        Subject to the provisions of the indenture relating to the duties of the trustee, in case an Event of Default occurs and is continuing, the trustee will be under no obligation to exercise any of the rights or powers under the indenture at the request or direction of any holders of notes unless such holders have offered to the trustee reasonable indemnity or security against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no holder of a note may pursue any remedy with respect to the indenture or the notes unless:

    (1)
    such holder has previously given the trustee written notice that an Event of Default is continuing;

    (2)
    holders of at least 25% in aggregate principal amount of the then outstanding notes make a written request to the trustee to pursue the remedy;

    (3)
    such holder or holders offer and, if requested, provide to the trustee security or indemnity reasonably satisfactory to the trustee against any loss, liability or expense;

    (4)
    the trustee does not comply with such request within 60 days after receipt of the request and the offer of security or indemnity; and

    (5)
    during such 60-day period, holders of a majority in aggregate principal amount of the then outstanding notes do not give the trustee a direction inconsistent with such request.

        The holders of a majority in aggregate principal amount of the then outstanding notes by written notice to the trustee may, on behalf of the holders of all of the notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the indenture, if the rescission would not violate any judgment or decree, except a continuing Default or Event of Default, in the payment of interest or premium, if any, on, or the principal of, the notes.

        The Issuers are required to deliver to the trustee annually a statement regarding compliance with the indenture. Within five Business Days of any executive officer of the General Partner or Finance Corp. becoming aware of any Default or Event of Default, the Issuers will be required to deliver to the trustee a statement specifying such Default or Event of Default.

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No Personal Liability of Directors, Officers, Employees and Unitholders and No Recourse to General Partner

        None of the General Partner or any director, officer, partner, employee, incorporator, manager, unitholder or other owner of Capital Stock of the General Partner, the Issuers or any Guarantor, as such, will have any liability for any obligations of the Issuers or the Guarantors under the notes, the indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. The waiver may not be effective to waive liabilities under the federal securities laws.

Legal Defeasance and Covenant Defeasance

        The Issuers may at any time, at the option of their respective Board of Directors evidenced by a resolution set forth in an Officers' Certificate, elect to have all of their obligations discharged with respect to the outstanding notes and all obligations of the Guarantors discharged with respect to their Note Guarantees (" Legal Defeasance ") except for:

    (1)
    the rights of holders of outstanding notes to receive payments in respect of the principal of, or interest or premium if any, on such notes when such payments are due from the trust referred to below;

    (2)
    the Issuers' obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust;

    (3)
    the rights, powers, trusts, duties and immunities of the trustee under the indenture, and the Issuers' and the Guarantors' obligations in connection therewith; and

    (4)
    the Legal Defeasance provisions of the indenture.

        In addition, the Issuers may, at their option and at any time, elect to have their obligations and the obligations of the Guarantors released with respect to the provisions of the indenture described above under "—Repurchase at the Option of Holders" and under "—Covenants" (other than the covenant described under "—Covenants—Merger, Consolidation or Sale of Assets," except to the extent described below) and the limitation imposed by clause (4) under "—Covenants—Merger, Consolidation or Sale of Assets" (such release and termination being referred to as " Covenant Defeasance "), and thereafter any failure to comply with such obligations or provisions will not constitute a Default or Event of Default with respect to the notes. In the event Covenant Defeasance occurs, the Events of Default described under clauses (3) through (7) under the caption "—Events of Default and Remedies" and the Event of Default described under clause (9) under the caption "—Events of Default and Remedies" (but only with respect to Subsidiaries of NGL Energy), in each case, will no longer constitute an Event of Default with respect to the notes. If the Issuers exercise either their Legal Defeasance or Covenant Defeasance option, each Guarantor will be released and relieved of any Obligations under the indenture, including its Obligations in respect of its Subsidiary Guarantee.

        In order to exercise either Legal Defeasance or Covenant Defeasance:

    (1)
    The Issuers must irrevocably deposit with the trustee, in trust, for the benefit of the holders of the notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, or interest and premium, if any, on the outstanding notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Issuers must specify whether the notes are being defeased to such stated date for payment or to a particular redemption date;

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    (2)
    in the case of Legal Defeasance, the Issuers must deliver to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that (a) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel will confirm that, the holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

    (3)
    in the case of Covenant Defeasance, the Issuers must deliver to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that the holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

    (4)
    no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), and the granting of Liens to secure such borrowings);

    (5)
    such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Issuers or any of the Guarantors is a party or by which the Issuers or any of the Guarantors is bound;

    (6)
    the Issuers must deliver to the trustee an Officers' Certificate stating that the deposit was not made by the Issuers with the intent of preferring the holders of notes over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuers or others;

    (7)
    NGL Energy must deliver to the trustee an Officers' Certificate, stating that all conditions precedent set forth in clauses (1) through (6) of this paragraph have been complied with; and

    (8)
    NGL Energy must deliver to the trustee an opinion of counsel, stating that all conditions precedent set forth in clauses (2), (3) and (5) of this paragraph have been complied with.

Amendment, Supplement and Waiver

        Except as provided in the next three succeeding paragraphs, the indenture or the notes or the Note Guarantees may be amended or supplemented with the consent of the holders of at least a majority in aggregate principal amount of the then outstanding notes (including, without limitation, additional notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the notes), and any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, interest or Special Interest, if any, on, the notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the indenture or the notes or the Note Guarantees may be waived with the consent of the holders of a majority in aggregate principal amount of the then outstanding notes (including, without limitation, additional notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, notes).

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        Without the consent of each holder of notes affected, an amendment, supplement or waiver may not (with respect to any notes held by a non-consenting holder):

    (1)
    reduce the principal amount of notes whose holders must consent to an amendment, supplement or waiver;

    (2)
    reduce the principal of or change the fixed maturity of any note or alter or waive any of the provisions with respect to the redemption of the notes; provided , however , that any purchase or repurchase of notes, including pursuant to the covenants described above under the caption "—Repurchase at the Option of Holders," shall not be deemed a redemption of the notes;

    (3)
    reduce the rate of or change the time for payment of interest, including default interest, on any note;

    (4)
    waive a Default or Event of Default in the payment of principal of, or interest or premium, or Liquidated Damages, if any, on the notes (except a rescission of acceleration of the notes by the holders of at least a majority in aggregate principal amount of the then outstanding notes and a waiver of the payment default that resulted from such acceleration);

    (5)
    make any note payable in currency other than that stated in the notes;

    (6)
    make any change in the provisions of the indenture relating to waivers of past Defaults or the rights of holders of notes to receive payments of principal of, or interest or premium or Liquidated Damages, if any, on the notes;

    (7)
    waive a redemption payment with respect to any note; provided , however , that any purchase or repurchase of notes, including pursuant to the covenants described above under the caption "—Repurchase at the Option of Holders," shall not be deemed a redemption of the notes;

    (8)
    release any Guarantor from any of its obligations under its Note Guarantee or the indenture, except in accordance with the terms of the indenture; or

    (9)
    make any change in the preceding amendment, supplement and waiver provisions.

        Notwithstanding the preceding, without the consent of any holder of notes, the Issuers, the Guarantors and the trustee may amend or supplement the indenture, the notes or the Note Guarantees:

    (1)
    to cure any ambiguity, defect or inconsistency;

    (2)
    to provide for uncertificated notes in addition to or in place of certificated notes;

    (3)
    to provide for the assumption of an Issuer's or a Guarantor's obligations to holders of notes and Note Guarantees in the case of a merger or consolidation or sale of all or substantially all of such Issuer's or Guarantor's properties or assets, as applicable;

    (4)
    to make any change that would provide any additional rights or benefits to the holders of notes or that does not adversely affect the legal rights under the indenture of any holder;

    (5)
    to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act;

    (6)
    to conform the text of the indenture or the notes to any provision of this Description of Notes to the extent that such provision in this Description of Notes was intended to be a verbatim recitation of a provision of the indenture, the notes or the Note Guarantees;

    (7)
    to provide for the issuance of additional notes in accordance with the limitations set forth in the indenture as of the Issue Date;

    (8)
    to secure the notes or the Note Guarantees;

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    (9)
    to add any additional Guarantor or to evidence the release of any Guarantor from its Note Guarantee, in each case as provided in the indenture; or

    (10)
    to evidence or provide for the acceptance of appointment under the indenture of a successor trustee.

        The consent of the holders is not necessary under the indenture to approve the particular form of any proposed amendment, supplement or waiver. It is sufficient if such consent approves the substance of the proposed amendment, supplement or waiver. After an amendment, supplement or waiver under the indenture requiring the approval of the holders becomes effective, NGL Energy will send to the holders a notice briefly describing the amendment, supplement or waiver. However, the failure to give such notice, or any defect in the notice, will not impair or affect the validity of the amendment, supplement or waiver.

Satisfaction and Discharge

        The indenture will be satisfied and discharged and will cease to be of further effect as to all notes issued thereunder (except as to surviving rights of registration of transfer or exchange of the notes and as otherwise specified in the indenture), when:

    (1)
    either:

    (a)
    all notes that have been authenticated, except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has been deposited in trust and thereafter repaid to the Issuers, have been delivered to the trustee for cancellation; or

    (b)
    all notes that have not been delivered to the trustee for cancellation have become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable within one year and either an Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the notes not delivered to the trustee for cancellation for principal of, or interest and premium, if any, on the notes to the date of maturity or redemption;

    (2)
    in respect of clause 1(b), no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any similar deposit relating to other Indebtedness and, in each case, the granting of Liens to secure such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which either Issuer or any Guarantor is a party or by which either Issuer or any Guarantor is bound (other than with respect to the borrowing of funds to be applied concurrently to make the deposit required to effect such satisfaction and discharge and any similar concurrent deposit relating to other Indebtedness, and in each case the granting of Liens to secure such borrowings);

    (3)
    the Issuers or any Guarantor have paid or caused to be paid all sums payable by them under the indenture; and

    (4)
    the Issuers have delivered irrevocable instructions to the trustee under the indenture to apply the deposited money toward the payment of the notes at maturity or on the redemption date, as the case may be.

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        In addition, the Issuers must deliver (a) an Officers' Certificate, stating that all conditions precedent set forth in clauses (1) through (4) above have been satisfied and (b) an opinion of counsel, stating that the condition precedent set forth in clause (4) above has been satisfied.

Concerning the Trustee

        U.S. Bank National Association will be the trustee under the indenture.

        If the trustee becomes a creditor of either Issuer or any Guarantor, the indenture limits the right of the trustee to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if the indenture has been qualified under the Trust Indenture Act) or resign.

        The holders of a majority in aggregate principal amount of the then outstanding notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee, subject to certain exceptions. The indenture provides that in case an Event of Default has occurred and is continuing, the trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any holder of notes, unless such holder has offered to the trustee reasonable indemnity or security satisfactory to it against any loss, liability or expense.

Governing Law

        The indenture, the notes and the Note Guarantees will be governed by, and construed in accordance with, the laws of the State of New York.

Book-Entry, Delivery and Form

        The new notes will be issued initially only in the form of one or more global notes (collectively, the "Global Notes"). The Global Notes will be deposited upon issuance with the trustee as custodian for The Depository Trust Company ("DTC"), in New York, New York, and registered in the name of DTC's nominee, Cede & Co., in each case for credit to an account of a direct or indirect participant in DTC as described below. Beneficial interests in the Global Notes may be held through the Euroclear System ("Euroclear") and Clearstream Banking, S.A. ("Clearstream") (as indirect participants in DTC).

        The Global Notes may be transferred, in whole but not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes may not be exchanged for notes in registered, certificated form ("Certificated Notes") except in the limited circumstances described below. See "—Exchange of Global Notes for Certificated Notes."

        In addition, transfers of beneficial interests in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants (including, if applicable, those of Euroclear and Clearstream), which may change from time to time.

Depository Procedures

        The following description of the operations and procedures of DTC, Euroclear and Clearstream are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. The Issuers take no responsibility for these operations and procedures and urge investors to contact the system or their participants directly to discuss these matters.

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        DTC has advised the Issuers that DTC is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the " Participants ") and to facilitate the clearance and settlement of transactions in those securities between the Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including the initial purchasers), banks, trust companies, clearing corporations and certain other organizations. Access to DTC's system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the " Indirect Participants "). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants.

        DTC has also advised the Issuers that, pursuant to procedures established by it:

    (1)
    upon deposit of the Global Notes, DTC will credit the accounts of the Participants designated by the initial purchasers with portions of the principal amount of the Global Notes; and

    (2)
    ownership of these interests in the Global Notes will be shown on, and the transfer of ownership of these interests will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interests in the Global Notes).

         Except as described below, beneficial owners of interests in the Global Notes will not have notes registered in their names, will not receive physical delivery of Certificated Notes and will not be considered the registered owners or "holders" thereof under the indenture for any purpose.

        Payments in respect of the principal of, and interest and premium, if any, on a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the registered holder under the indenture. Under the terms of the indenture, the Issuers, the Guarantors and the trustee will treat the Persons in whose names the notes, including the Global Notes, are registered as the owners of the notes for the purpose of receiving payments and for all other purposes. Consequently, neither the Issuers, the Guarantors, the trustee nor any agent of the Issuers, the Guarantors or the trustee has or will have any responsibility or liability for:

    (1)
    any aspect of DTC's records or any Participant's or Indirect Participant's records relating to or payments made on account of beneficial ownership interests in the Global Notes or for maintaining, supervising or reviewing any of DTC's records or any Participant's or Indirect Participant's records relating to the beneficial ownership interests in the Global Notes; or

    (2)
    any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants.

        DTC has advised the Issuers that its current practice, upon receipt of any payment in respect of securities such as the notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe that it will not receive payment on such payment date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the Participants and the Indirect Participants to the beneficial owners of notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the trustee, the Issuers or the Guarantors. None of the Issuers, the Guarantors nor the trustee will be liable for any delay by DTC or any of the Participants or the Indirect Participants in identifying the beneficial owners of the notes, and the Issuers, the Guarantors and the trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.

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        Subject to the transfer restrictions set forth under "Notice to Investors," transfers between the Participants will be effected in accordance with DTC's procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.

        Subject to compliance with the transfer restrictions applicable to the notes described herein, cross-market transfers between the Participants, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC's rules on behalf of Euroclear or Clearstream, as the case may be, by their respective depositaries; however, such cross- market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositaries for Euroclear or Clearstream.

        DTC has advised the Issuers that it will take any action permitted to be taken by a holder of notes only at the direction of one or more Participants to whose account DTC has credited the interests in the Global Notes and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or Participants has or have given such direction. However, if there is an Event of Default under the notes, DTC reserves the right to exchange the Global Notes for Certificated Notes, and to distribute such notes to its Participants.

Exchange of Global Notes for Certificated Notes

        A Global Note is exchangeable for Certificated Notes if:

    (1)
    DTC (a) notifies the Issuers that it is unwilling or unable to continue as depositary for the Global Note or (b) has ceased to be a clearing agency registered under the Exchange Act, and in either case the Issuers fail to appoint a successor depositary;

    (2)
    the Issuers, at their option, notify the trustee in writing that they elect to cause the issuance of Certificated Notes; provided that in no event shall the Regulation S Temporary Global Note be exchanged for Certificated Notes prior to (a) the expiration of the Restricted Period and (b) the receipt of any certificates required under the provisions of Regulation S; or

    (3)
    there has occurred and is continuing an Event of Default with respect to the notes and DTC notifies the trustee of its decision to exchange the Global Notes for Certificated Notes.

        In addition, beneficial interests in a Global Note may be exchanged for Certificated Notes upon prior written notice given to the trustee by or on behalf of DTC in accordance with the indenture. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures) and will bear the applicable restrictive legend referred to in "Notice to Investors," unless that legend is not required by applicable law.

Exchange of Certificated Notes for Global Notes

        Certificated Notes may not be exchanged for beneficial interests in any Global Note unless the transferor first delivers to the trustee a written certificate (in the form provided in the indenture) to the effect that such transfer will comply with the appropriate transfer restrictions applicable to such notes. See "Notice to Investors."

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Certifications by Holders of the Regulation S Temporary Global Notes

        A holder of a beneficial interest in the Regulation S Temporary Global Notes must provide Euroclear or Clearstream, as the case may be, with a certificate in the form required by the indenture certifying that the beneficial owner of the interest in the Regulation S Temporary Global Note is either a non-U.S. person or a U.S. person that has purchased such interest in a transaction that is exempt from the registration requirements under the Securities Act, and Euroclear or Clearstream, as the case may be, must provide to the trustee (or the paying agent if other than the trustee) a certificate in the form required by the indenture, prior to any exchange of such beneficial interest for a beneficial interest in the Regulation S Permanent Global Notes.

Same Day Settlement and Payment

        The Issuers will make payments in respect of the notes represented by the Global Notes (including principal, premium, if any, and interest) by wire transfer of immediately available funds to the accounts specified by DTC or its nominee. The Issuers will make all payments of principal, interest and premium, if any, with respect to Certificated Notes in the manner described above under "—Methods of Receiving Payments on the Notes." The notes represented by the Global Notes are expected to trade in DTC's Same-Day Funds Settlement System, and any permitted secondary market trading activity in such notes will, therefore, be required by DTC to be settled in immediately available funds. The Issuers expect that secondary trading in any Certificated Notes will also be settled in immediately available funds.

        Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised the Issuers that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC's settlement date.

Definitions

        " Acquired Debt " means, with respect to any specified Person:

    (1)
    Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, regardless of whether such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person, but excluding Indebtedness which is extinguished, retired or repaid in connection with such Person merging with or into or becoming a Subsidiary of such specified Person; and

    (2)
    Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

        " Additional Assets " means:

    (1)
    any property or assets (other than Indebtedness and Capital Stock) to be used by NGL Energy or a Restricted Subsidiary in a Permitted Business;

    (2)
    the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by NGL Energy or another Restricted Subsidiary; or

    (3)
    outstanding Capital Stock of any Restricted Subsidiary held by Persons other than Affiliates; provided that all the Capital Stock of such Restricted Subsidiary held by NGL Energy or any

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      other Restricted Subsidiaries shall entitle NGL Energy or such other Restricted Subsidiary to not less than a pro rata portion of all dividends or other distributions made by such Restricted Subsidiary upon any of such Capital Stock;

provided , however , that, in the case of clauses (2) and (3), such Restricted Subsidiary is primarily engaged in a Permitted Business.

        " Affiliate " of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, " control, " as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms " controlling, " " controlled by " and " under common control with " have correlative meanings.

        " Asset Sale " means:

    (1)
    the sale, lease, conveyance or other disposition of any assets or rights by NGL Energy or any of NGL Energy's Restricted Subsidiaries; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of NGL Energy and its Restricted Subsidiaries taken as a whole will be governed by the provisions of the indenture described above under the caption "—Repurchase at the Option of Holders—Change of Control" and/or the provisions of the indenture described above under the caption "—Covenants—Merger, Consolidation or Sale of Assets" and not by the provisions of the Asset Sale covenant; and

    (2)
    the issuance of Equity Interests by any of NGL Energy's Restricted Subsidiaries or the sale by NGL Energy or any of NGL Energy's Restricted Subsidiaries of Equity Interests in any of NGL Energy's Restricted Subsidiaries (other than, in each case, directors' qualifying shares or Equity Interests required by applicable law to be held by a Person other than NGL Energy or any of NGL Energy's Restricted Subsidiaries).

        Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

    (1)
    any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $20.0 million;

    (2)
    a transfer of assets between or among NGL Energy and its Restricted Subsidiaries;

    (3)
    an issuance or sale of Equity Interests by a Restricted Subsidiary to NGL Energy or to a Restricted Subsidiary;

    (4)
    the sale, lease or other disposition of equipment, inventory, products, services, accounts receivable or other assets in the ordinary course of business (including in connection with any compromise, settlement or collection of accounts receivable), and any sale or other disposition of damaged, worn-out or obsolete assets or assets that are no longer useful in the conduct of the business of NGL Energy and its Restricted Subsidiaries (including the abandonment or other disposition of intellectual property that is, in the reasonable judgment of NGL Energy, no longer economically practicable to maintain or useful in the conduct of the business of NGL Energy and its Restricted Subsidiaries taken as whole);

    (5)
    licenses and sublicenses by NGL Energy or any of its Restricted Subsidiaries of software or intellectual property in the ordinary course of business;

    (6)
    any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims of any kind;

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    (7)
    the creation or perfection of a Lien not prohibited by the covenant described above under the caption "—Covenants—Liens," including a Permitted Lien and the exercise by any Person in whose favor a Permitted Lien is granted of any of its rights in respect of that Permitted Lien;

    (8)
    the sale or other disposition of cash or Cash Equivalents;

    (9)
    the sale or other disposition of Hedging Obligations or other financial instruments in the ordinary course of business;

    (10)
    (a) a Restricted Payment that does not violate the covenant described above under the caption "—Covenants—Restricted Payments," including, without limitation, the issuance or sale of Equity Interests or the sale, lease or other disposition of products, services, equipment, inventory, accounts receivable or other assets pursuant to any such Restricted Payment, or (b) the consummation of a Permitted Investment, including, without limitation, unwinding any Hedging Obligations, and including the issuance or sale of Equity Interests or the sale, lease or other disposition of products, services, equipment, inventory, accounts receivable or other assets pursuant to any such Permitted Investment;

    (11)
    the issuance, sale or other disposition of Equity Interests of an Unrestricted Subsidiary; and

    (12)
    any trade or exchange by NGL Energy or any of its Restricted Subsidiaries of assets for properties or assets owned or held by another Person used or useful in a Permitted Business (including Capital Stock of a Person engaged primarily in a Permitted Business that is or becomes a Restricted Subsidiary); provided that (a) the assets or properties exchanged or received by NGL Energy or any of its Restricted Subsidiaries may not include cash or Cash Equivalents except for relatively minor amounts necessary in order to achieve an exchange of equivalent value and (b) the Fair Market Value of the assets traded or exchanged by NGL Energy or such Restricted Subsidiary (together with any cash or Cash Equivalents to be delivered by NGL Energy or such Restricted Subsidiary) is reasonably equivalent to the Fair Market Value of the assets (together with any cash or Cash Equivalents) to be received by NGL Energy or such Restricted Subsidiary; and provided , further , that any cash received must be applied in accordance with the provisions of the Asset Sale covenant.

        " Available Cash " has the meaning assigned to such term in the Partnership Agreement, as in effect on the Issue Date.

        " Beneficial Owner " has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular " person " (as that term is used in Section 13(d)(3) of the Exchange Act), such " person " will be deemed to have beneficial ownership of all securities that such " person " has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms " Beneficially Owns " and " Beneficially Owned " have corresponding meanings. For purposes of this definition, a Person shall be deemed not to Beneficially Own securities that are the subject of a stock purchase agreement, merger agreement, amalgamation agreement, arrangement agreement or similar agreement until consummation of the transactions or, as applicable, series of related transactions contemplated thereby.

        " Board of Directors " means:

    (1)
    with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

    (2)
    with respect to a partnership, the board of directors of the general partner of the partnership;

    (3)
    with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

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    (4)
    with respect to any other Person, the board or committee of such Person serving a similar function.

So long as NGL Energy is organized as a limited partnership, references to its Board of Directors are to the Board of Directors of the General Partner.

        " Business Day " means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or another place of payment are authorized or required by law to remain closed.

        " Capital Lease Obligation " means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty. Notwithstanding the foregoing, any lease (whether entered into before or after the Measuring Date) that would have been classified as an operating lease pursuant to GAAP as in effect on the Measuring Date will be deemed not to represent a Capital Lease Obligation, notwithstanding any change in GAAP that occurs after the Measuring Date.

        " Capital Stock " means:

    (1)
    in the case of a corporation, corporate stock;

    (2)
    in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

    (3)
    in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

    (4)
    any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, regardless of whether such debt securities include any right of participation with Capital Stock.

        " Cash Equivalents " means:

    (1)
    United States dollars;

    (2)
    Government Securities having maturities of not more than one year from the date of acquisition;

    (3)
    certificates of deposit, demand deposit accounts and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any lender party to the Credit Agreement or with any domestic commercial bank having capital and surplus in excess of $250.0 million and a Thomson BankWatch Rating of "B" or better;

    (4)
    marketable general obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having a credit rating of "A" or better from either S&P or Moody's;

    (5)
    repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2), (3) or (4) above entered into with any financial institution meeting the qualifications specified in clause (3) above;

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    (6)
    commercial paper having one of the two highest ratings obtainable from Moody's or S&P and, in each case, maturing within one year after the date of acquisition;

    (7)
    money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (6) of this definition; and

    (8)
    deposits in any currency available for withdrawal on demand with any commercial bank that is organized under the laws of any country in which NGL Energy or any Restricted Subsidiary maintains its chief executive office or is engaged in a Permitted Business; provided that all such deposits are made in such accounts in the ordinary course of business.

        " Change of Control " means the occurrence of any of the following:

    (1)
    the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of NGL Energy and its Restricted Subsidiaries taken as a whole to any " person " (as such term is used in Sections 13(d) of the Exchange Act), other than a Permitted Holder, which occurrence is followed within 60 days thereafter by a Rating Decline;

    (2)
    the adoption of a plan for the liquidation or dissolution of NGL Energy;

    (3)
    the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any " person " or " group " (as those terms are used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the General Partner, measured by voting power rather than number of shares, units or the like, which occurrence is followed within 60 days thereafter by a Rating Decline; or

    (4)
    the removal of the General Partner by the limited partners of NGL Energy in accordance with the terms of the Partnership Agreement.

        Notwithstanding the preceding, a conversion of NGL Energy or any of its Restricted Subsidiaries from a limited partnership, corporation, limited liability company or other form of entity to a limited liability company, corporation, limited partnership or other form of entity or an exchange of all of the outstanding Equity Interests in one form of entity for Equity Interests in another form of entity shall not constitute a Change of Control, so long as following such conversion or exchange the " persons " (as that term is used in Section 13(d)(3) of the Exchange Act) who Beneficially Owned the Capital Stock of NGL Energy immediately prior to such transactions continue to Beneficially Own in the aggregate more than 50% of the Voting Stock of such entity, or continue to Beneficially Own sufficient Equity Interests in such entity or its general partner, as applicable, to elect a majority of its directors, managers, trustees or other persons serving in a similar capacity for such entity or its general partner, as applicable, and, in either case, no " person, " other than a Permitted Holder, Beneficially Owns more than 50% of the Voting Stock of such entity or its general partner, as applicable.

        " Consolidated Cash Flow " means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

    (1)
    an amount equal to any extraordinary loss plus any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale (together with any related provision for taxes and any related non-recurring charges relating to any premium or penalty paid, write-off of deferred financing costs or other financial recapitalization charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity), to the extent that such losses were deducted in computing such Consolidated Net Income; plus

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    (2)
    provision for taxes based on income or profits (including state franchise taxes accounted for as income taxes in accordance with GAAP) of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

    (3)
    the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

    (4)
    depreciation, depletion, amortization, (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period), abandonment, impairment and other non-cash charges and expenses (excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, depletion, amortization, impairment and other non-cash charges or expenses were deducted in computing such Consolidated Net Income; plus

    (5)
    all extraordinary, unusual or non-recurring expenses, including expenses related to the Fair Market Value of contingent consideration, to the extent that such extraordinary, unusual or non-recurring expenses were deducted in computing such Consolidated Net Income; minus

    (6)
    non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business,

in each case, on a consolidated basis and determined in accordance with GAAP.

        " Consolidated Net Income " means, with respect to any specified Person for any period, the aggregate of the net income (loss) of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP and without any reduction in respect of preferred stock dividends; provided that:

    (1)
    any gain (loss) realized upon the sale or other disposition of any property, plant or equipment of such Person or its consolidated Restricted Subsidiaries (including pursuant to any sale or leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business and any gain (loss) realized upon the sale or other disposition of any Capital Stock of any Person will be excluded;

    (2)
    the net income (but not loss) of any Person that is not a Restricted Subsidiary of such specified Person or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of such specified Person;

    (3)
    the net income (but not loss) of any Restricted Subsidiary of such specified Person that is not a Guarantor will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, partners or members; provided , however , that the operation of this clause (3) shall be suspended with respect to any Restricted Subsidiary that is acquired by NGL Energy or any of its Restricted Subsidiaries (regardless of whether such acquisition is effected pursuant to a merger or otherwise), but such suspension shall cease immediately after the first six months following such acquisition;

    (4)
    the cumulative effect of a change in accounting principles will be excluded;

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    (5)
    any unrealized losses and gains for such period under derivative instruments included in the determination of Consolidated Net Income, including, without limitation, those resulting from the application of FASB ASC 815, will be excluded;

    (6)
    all non-cash equity-based compensation expense, including all non-cash charges related to restricted Equity Interests and redeemable Equity Interests granted to officers, directors and employees, will be excluded;

    (7)
    any charges associated with any write-down, amortization or impairment of goodwill or other tangible or intangible assets will be excluded; and

    (8)
    any non-cash or other charges relating to any premium or penalty paid, write off of deferred financing costs or other financial recapitalization charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity (including, without limitation, premiums or penalties paid to counterparties in connection with the breakage, termination or unwinding of Hedging Obligations) will be excluded.

        " continuing " means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.

        " Credit Agreement " means the Amended and Restated Credit Agreement, dated as of February 14, 2017, by and among NGL Energy, NGL Energy Operating LLC, as borrowers' agent, the subsidiary borrowers party thereto, the subsidiary guarantors party thereto, the lenders party thereto, Deutsche Bank AG, New York Branch, as technical agent, and Deutsche Bank Trust Company Americas, as administrative agent and as collateral agent, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.

        " Credit Facilities " means one or more debt facilities (including, without limitation, any Credit Agreement), commercial paper facilities or secured or unsecured capital markets financings, in each case, with banks or other institutional lenders or institutional investors providing for revolving credit loans, term loans, capital market financings, private placements, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including refinancing with any capital markets transaction or otherwise by means of sales of debt securities to institutional investors) in whole or in part from time to time.

        " Customary Recourse Exceptions " means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary or Joint Venture, (i) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Joint Venture owned by NGL Energy or any Restricted Subsidiary to the extent securing otherwise Non-Recourse Debt of such Unrestricted Subsidiary or Joint Venture and (ii) exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary bankruptcy of such Unrestricted Subsidiary or Joint Venture, fraud, misapplication of cash, environmental claims, waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.

        " Default " means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

        " Disqualified Stock " means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of

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the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require NGL Energy to repurchase or redeem such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that NGL Energy may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the covenant described above under the caption "—Covenants—Restricted Payments." The amount of Disqualified Stock deemed to be outstanding at any time for purposes of the indenture will be the maximum amount that NGL Energy and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

        " Domestic Subsidiary " means any Restricted Subsidiary that was formed under the laws of the United States or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of NGL Energy or any Restricted Subsidiary (other than a Foreign Subsidiary).

        " Equity Interests " of any Person means Capital Stock and all warrants, options or other rights to acquire Capital Stock of such Person (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

        " Equity Offering " means a sale of Equity Interests of NGL Energy (other than Disqualified Stock and other than to a Subsidiary of NGL Energy) made for cash on a primary basis by NGL Energy after the Issue Date.

        " Exchange Act " means the Securities Exchange Act of 1934, as amended.

        " Exchange Notes " means an issue of notes with terms identical to the notes (except that the Exchange Notes will not be subject to restrictions on transfer, registration rights or Liquidated Damages) issued in an Exchange Offer pursuant to the indenture.

        " Existing Indebtedness " means all Indebtedness of NGL Energy and its Subsidiaries (other than Indebtedness under the Credit Agreement, the notes or the Note Guarantees) in existence on the Issue Date, until such amounts are repaid.

        " Existing Senior Secured Notes " means NGL Energy's $250,000,000 aggregate principal amount of 6.65% Senior Secured Notes due June 19, 2022.

        " Fair Market Value " means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of NGL Energy in the case of amounts of $40.0 million or more and otherwise by an officer of the General Partner (unless otherwise provided in the indenture).

        " FASB ASC 815 " means Financial Accounting Standards Board Accounting Standards Codification 815.

        " FERC Subsidiary " means a Restricted Subsidiary that is subject to the regulatory jurisdiction of the Federal Energy Regulatory Commission (or any successor thereof).

        " Fitch " means Fitch Ratings, Inc. or any successor to the ratings business thereof.

        " Fixed Charge Coverage Ratio " means with respect to any specified Person for any four-quarter reference period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise

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discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the " Calculation Date "), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the average rate in effect from the beginning of such period to the Calculation Date had been the applicable rate for the entire period (taking into account any interest Hedging Obligation applicable to such Indebtedness, but if the remaining term of such interest Hedging Obligation is less than twelve months, then such interest Hedging Obligation shall only be taken into account for that portion of the period equal to the remaining term thereof). If any Indebtedness that is being given pro forma effect bears an interest rate at the option of such Person, the interest rate shall be calculated by applying such option rate chosen by such Person. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as such Person may designate.

        In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

    (1)
    acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers, consolidations or otherwise (including acquisitions of assets used or useful in a Permitted Business), or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date, will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period;

    (2)
    the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;

    (3)
    the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

    (4)
    any Person that is a Restricted Subsidiary of the specified Person on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;

    (5)
    any Person that is not a Restricted Subsidiary of the specified Person on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and

    (6)
    interest income reasonably anticipated by such Person to be received during the applicable four-quarter period from cash or Cash Equivalents held by such Person or any Restricted Subsidiary of such Person, which cash or Cash Equivalents exist on the Calculation Date or will exist as a result of the transaction giving rise to the need to calculate the Fixed Charge Coverage Ratio, will be included.

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        For purposes of this definition, whenever pro forma effect is to be given to any calculation under this definition, the pro forma calculations will be determined in good faith by a responsible financial or accounting officer of such Person, which determination shall be conclusive for all purposes under the indenture; provided that such officer may in such officer's discretion include any reasonably identifiable and factually supportable pro forma changes to Consolidated Cash Flow or Fixed Charges, including any pro forma expense and cost reductions or synergies that have occurred or are reasonably expected to occur within the 12 months immediately following the Calculation Date and are either (i) prepared and calculated in accordance with Regulation S-X under the Securities Act or (ii) set forth in an Officers' Certificate signed by the chief financial officer of such Person that states (a) the amount of each such adjustment and (b) that such adjustments are based on the reasonable good faith belief of the chief financial officer executing such Officers' Certificate at the time of such execution and the factual basis on which such good faith belief is based.

        " Fixed Charges " means, with respect to any specified Person for any period, the sum, without duplication, of:

    (1)
    the consolidated interest expense (less interest income) of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (excluding write-off of deferred financing costs and accretion of interest charges on future retirement benefits and other obligations that do not constitute Indebtedness, but including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings), and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus

    (2)
    the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

    (3)
    any interest on Indebtedness of another Person that is guaranteed by the specified Person or one or more of its Restricted Subsidiaries or secured by a Lien on assets of such specified Person or one or more of its Restricted Subsidiaries, regardless of whether such Guarantee or Lien is called upon; plus

    (4)
    all dividends or distributions, whether paid or accrued and regardless of whether in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends or distributions on Equity Interests payable solely in Equity Interests of such Person (other than Disqualified Stock) or to such Person or a Restricted Subsidiary of such Person, in each case, determined on a consolidated basis in accordance with GAAP.

        " Foreign Subsidiary " means any Restricted Subsidiary that is not a Domestic Subsidiary.

        " GAAP " means generally accepted accounting principles in the United States, that are in effect from time to time. All ratios and computations based on GAAP contained in the indenture will be computed in conformity with GAAP. At any time after the Issue Date, NGL Energy may elect to apply International Financial Reporting Standards (" IFRS ") accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in the indenture); provided that any such election, once made, shall be irrevocable; provided , further , that any calculation or determination in the indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to NGL Energy's election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. NGL Energy shall give notice of any such election made in accordance with this definition to the trustee and the holders of notes.

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        " General Partner " means NGL Energy Holdings LLC, a Delaware limited liability company, and its successors and permitted assigns as the general partner of NGL Energy.

        " Government Securities " means direct obligations of, or obligations Guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.

        " Guarantee " means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise). When used as a verb, " Guarantee " has a correlative meaning.

        " Guarantors " means any of: (1) the Subsidiaries of NGL Energy, other than Finance Corp., executing the indenture as initial Guarantors; and (2) the Restricted Subsidiaries of NGL Energy that become Guarantors in accordance with the provisions of the indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of the indenture.

        " Hedging Obligations " means, with respect to any specified Person, the obligations of such Person under:

    (1)
    interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements, interest rate collar agreements or other agreements or arrangements designed to manage interest rates or interest rate risk;

    (2)
    any commodity futures contract, commodity option or other similar agreement or arrangement designed to protect such Person against fluctuations in the price of Hydrocarbons used, produced, processed or sold; and

    (3)
    foreign exchange contracts, currency protection agreements or other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates.

        " Hydrocarbons " means oil, natural gas, casing head gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all constituents, elements or compounds thereof and products refined or processed therefrom.

        " Indebtedness " means, with respect to any specified Person, without duplication, any indebtedness of such Person, regardless of whether contingent:

    (1)
    in respect of borrowed money;

    (2)
    evidenced by or issued in exchange for bonds, notes, credit agreements, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

    (3)
    in respect of bankers' acceptances;

    (4)
    representing Capital Lease Obligations;

    (5)
    representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed; or

    (6)
    representing any Hedging Obligations,

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term " Indebtedness " includes (a) all Indebtedness of others secured by a Lien on any asset of the specified Person (regardless of whether such Indebtedness is assumed by the

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specified Person); provided , that the amount of such Indebtedness will be the lesser of (i) the Fair Market Value of such asset at such date of determination and (ii) the amount of such Indebtedness of such other Person, and (b) to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving effect to the effects of FASB ASC 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under the indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.

        The amount of any Indebtedness outstanding as of any date will be:

    (1)
    the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

    (2)
    in the case of any Hedging Obligation, the termination value of the agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such date;

    (3)
    in the case of any letter of credit, the face amount thereof;

    (4)
    the principal amount of the Indebtedness, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness; and

    (5)
    in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

    (a)
    the Fair Market Value of such assets at the date of determination; and

    (b)
    the amount of the Indebtedness of the other Person.

        Notwithstanding the foregoing, the following shall not constitute " Indebtedness ":

    (i)
    accrued expenses and trade accounts payable arising in the ordinary course of business;

    (ii)
    any indebtedness that has been defeased in accordance with GAAP or defeased pursuant to the deposit of cash or Government Securities (in an amount sufficient to satisfy all such indebtedness obligations at maturity or redemption, as applicable, and all payments of interest and premium, if any) in a trust or account created or pledged for the sole benefit of the holders of such indebtedness, and subject to no other Liens, and the other applicable terms of the instrument governing such indebtedness;

    (iii)
    Hydrocarbon balancing liabilities incurred in the ordinary course of business;

    (iv)
    any unrealized losses or charges in respect of Hedging Obligations (including those resulting from the application of the FASB ASC 815);

    (v)
    any obligations in respect of (a) bid, performance, completion, surety, appeal and similar bonds, (b) bankers' acceptances, (c) workers' compensation claims, health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, reclamation and statutory obligations and (d) any Guarantees or standby letters of credit functioning as or supporting any of the foregoing bonds or obligations, to the extent not drawn; provided, however , that such bonds or obligations mentioned in subclause (a), (b), (c) or (d) of this clause (v) are incurred in the ordinary course of the business of NGL Energy and its Restricted Subsidiaries and do not relate to obligations for borrowed money;

    (vi)
    any obligation arising from any agreement providing for indemnities, guarantees, purchase price adjustments, holdbacks, earnouts, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than Guarantees of Indebtedness) incurred by any Person in connection with the acquisition or disposition of any business, assets or Capital Stock;

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    (vii)
    any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such obligation is extinguished within five Business Days of its incurrence;

    (viii)
    any Treasury Management Arrangement;

    (ix)
    any obligation arising out of advances on trade receivables, factoring of receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice; and

    (x)
    all contracts and other obligations, agreements, instruments or arrangements described in clauses (18), (28) and (29) of the definition of " Permitted Liens. "

        " Internal Revenue Code " means the Internal Revenue Code of 1986, as amended, and any successor statute.

        " Investment Grade Rating " means a rating equal to or higher than:

    (1)
    Baa3 (or the equivalent) by Moody's;

    (2)
    BBB– (or the equivalent) by S&P; or

    (3)
    BBB– (or the equivalent) by Fitch,

or, if any such Rating Agency ceases to rate the notes for reasons outside of the control of NGL Energy, the equivalent investment grade credit rating from any other Rating Agency.

        " Investment Grade Rating Event " means the first day on which (a) the notes have an Investment Grade Rating from at least two Rating Agencies, (b) no Default or Event of Default with respect to the notes has occurred and is then continuing under the indenture and (c) NGL Energy has delivered to the trustee an Officers' Certificate certifying as to the satisfaction of the conditions set forth in clauses (a) and (b) of this definition.

        " Investments " means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding (1) endorsements of negotiable instruments and documents in the ordinary course of business, and commission, travel and similar advances to officers, employees and consultants made in the ordinary course of business and (2) advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the Person making the advance), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities (excluding any interest in an oil or natural gas leasehold to the extent constituting a security under applicable law), together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If NGL Energy or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of NGL Energy, NGL Energy will be deemed to have made an Investment on the date of any such sale or disposition in an amount equal to the Fair Market Value of NGL Energy's Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of the covenant described above under the caption "—Covenants—Restricted Payments." The acquisition by NGL Energy or any Restricted Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an Investment by NGL Energy or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of the covenant described above under the caption "—Covenants—Restricted Payments." Except as otherwise provided in the indenture, the amount of an Investment will be determined at the time the Investment is made and without giving

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effect to subsequent changes in value or write-ups, write-downs or write-offs with respect to such Investment.

        " Issue Date " means the first date on which notes are issued under the indenture.

        " Joint Venture " means any Person that is not a direct or indirect Subsidiary of NGL Energy in which NGL Energy or any of its Restricted Subsidiaries makes any Investment.

        " Lien " means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, regardless of whether filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction other than a precautionary financing statement respecting a lease not intended as a security agreement.

        " Liquidated Damages " means all liquidated damages then owing pursuant to the Registration Rights Agreement.

        " Measuring Date " means October 16, 2013.

        " Moody's " means Moody's Investors Service, Inc. or any successor to the ratings business thereof.

        " Net Proceeds " means the aggregate amount of cash proceeds and Cash Equivalents received by NGL Energy or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale, but excluding any non-cash consideration deemed to be cash for purposes of the "Asset Sales" provisions of the indenture), net of:

    (1)
    the direct costs relating to such Asset Sale, including, without limitation, all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expense incurred, and all federal, state, provincial, foreign and local taxes required to be paid or accrued as a liability under GAAP (after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset Sale;

    (2)
    all payments made on any Indebtedness that is secured by any assets subject to such Asset Sale, in accordance with the terms of such Indebtedness, or that must by its terms, or in order to obtain a necessary consent to such Asset Sale, or by applicable law be repaid out of the proceeds from such Asset Sale;

    (3)
    all distributions and other payments required to be made to holders of minority interests in Subsidiaries or Joint Ventures as a result of such Asset Sale; and

    (4)
    the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, or held in escrow, in either case for as long as required to be held as reserve or in escrow for adjustment in respect of the sale price or for indemnification or any liabilities associated with the assets disposed of in such Asset Sale and retained by NGL Energy or any Restricted Subsidiary after such Asset Sale.

        " Non-Recourse Debt " means Indebtedness:

    (1)
    as to which neither NGL Energy nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, Guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor or otherwise, in each case of clause (a) and (b) above, except for Customary Recourse Exceptions; and

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    (2)
    as to which the lenders have been notified in writing that they will not have any recourse to the Capital Stock or assets of NGL Energy or any of its Restricted Subsidiaries (other than the Equity Interests of any Unrestricted Subsidiary or Joint Venture), except for Customary Recourse Exceptions.

        " Note Guarantee " means any Guarantee of the Issuers' obligations under the indenture and the notes by any Guarantor in accordance with the provisions of the indenture.

        " Obligations " means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

        " Officer " means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person (or, with respect to NGL Energy, so long as it remains a partnership, the General Partner).

        " Officers' Certificate " means a certificate signed on behalf of NGL Energy by two Officers of NGL Energy or two Officers of the General Partner, one of whom must be the principal executive officer, the principal financial officer or the principal accounting officer of such Person, that meets the requirements of the indenture pertaining to such certificates.

        " Operating Surplus " has the meaning assigned to such term in the Partnership Agreement, as in effect on the Issue Date.

        " Partnership Agreement " means the Third Amended and Restated Agreement of Limited Partnership of NGL Energy dated as of June 24, 2016, as such may be further amended, modified or supplemented from time to time.

        " Permitted Acquisition Indebtedness " means Indebtedness or Disqualified Stock of NGL Energy or any of its Restricted Subsidiaries to the extent such Indebtedness or Disqualified Stock was Indebtedness or Disqualified Stock of:

    (1)
    a Subsidiary prior to the date on which such Subsidiary became a Restricted Subsidiary; or

    (2)
    a Person that was merged or consolidated into NGL Energy or a Restricted Subsidiary;

provided that on the date such Subsidiary became a Restricted Subsidiary or the date such Person was merged and consolidated into NGL Energy or a Restricted Subsidiary, as applicable, after giving pro forma effect thereto and to any related financing transaction as if the same had occurred at the beginning of the applicable four-quarter period:

    (a)
    the Restricted Subsidiary or NGL Energy, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test described under "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock," or

    (b)
    the Fixed Charge Coverage Ratio for the Restricted Subsidiary or NGL Energy, as applicable, would be greater than the Fixed Charge Coverage Ratio for such Restricted Subsidiary or NGL Energy immediately prior to such transaction.

        " Permitted Business " means either (a) gathering, transporting, compressing, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, including water treatment, disposal and transportation, and entering into Hedging Obligations relating to any of the foregoing activities, or (b) any other business that generates gross income at least 90% of which constitutes "qualifying income" under Section 7704(d) of the Internal Revenue Code.

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        " Permitted Business Investments " means Investments by NGL Energy or any of its Restricted Subsidiaries in any Unrestricted Subsidiary or in any Joint Venture; provided that:

    (1)
    either (a) at the time of such Investment and immediately thereafter, NGL Energy could incur $1.00 of additional Indebtedness under the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described above under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" or (b) such Investment does not exceed the aggregate amount of Incremental Funds (as defined in the covenant described under "—Covenants—Restricted Payments") not previously expended at the time of making such Investment;

    (2)
    if such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at the time of such Investment, either (a) all such Indebtedness is Non-Recourse Debt or (b) any such Indebtedness of such Unrestricted Subsidiary or Joint Venture that is recourse to NGL Energy or any of its Restricted Subsidiaries (which shall include, without limitation, all Indebtedness of such Unrestricted Subsidiary or Joint Venture for which NGL Energy or any of its Restricted Subsidiaries may be directly or indirectly, contingently or otherwise, obligated to pay, whether pursuant to the terms of such Indebtedness, by law or pursuant to any guarantee, including, without limitation, any " claw-back, " " make-well " or " keep-well " arrangement) could, at the time such Investment is made, be incurred at that time by NGL Energy and its Restricted Subsidiaries under the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described above under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock"; and

    (3)
    such Unrestricted Subsidiary's or Joint Venture's activities are not outside the scope of the Permitted Business.

        " Permitted Debt " is defined in the covenant described under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock."

        " Permitted Holder " means: (i) any of Coady Enterprises, LLC, Shawn W. Coady, Thorndike, LLC, Todd M. Coady, SemGroup Corporation, KrimGP2010, LLC, H. Michael Krimbill, EMG I NGL GP Holdings, LLC and EMG II NGL GP Holdings, LLC; (ii) any wife, lineal descendant, legal guardian or other legal representative or estate of any of the Persons described in the preceding clause (i); (iii) any trust of which at least one of the trustees is any of the Persons described in the preceding clauses (i) or (ii); and (iv) any other Person that is controlled directly or indirectly by any one or more of the Persons described in the preceding clauses (i) through (iii).

        " Permitted Investments " means:

    (1)
    any Investment in NGL Energy or in a Restricted Subsidiary;

    (2)
    any Investment in Cash Equivalents;

    (3)
    any Investment by NGL Energy or any Restricted Subsidiary in a Person, if as a result of such Investment:

    (a)
    such Person becomes a Restricted Subsidiary; or

    (b)
    such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, NGL Energy or a Restricted Subsidiary;

    (4)
    any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the covenant described above under the caption "—Repurchase at the Option of Holders—Asset Sales";

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    (5)
    any Investment in a Person to the extent in exchange for the issuance of Equity Interests (other than Disqualified Stock) of NGL Energy;

    (6)
    any Investment received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of NGL Energy or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, or as a result of a foreclosure by, or other transfer of title to, NGL Energy or any of its Restricted Subsidiaries with respect to any secured investment in default; or (b) litigation, arbitration or other disputes;

    (7)
    Investments represented by Hedging Obligations;

    (8)
    Investments in any Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility and workers' compensation, performance and other deposits made in the ordinary course of business by NGL Energy or any of its Restricted Subsidiaries;

    (9)
    advances to or reimbursements of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business;

    (10)
    loans or advances to officers, directors or employees made in the ordinary course of business of the General Partner, NGL Energy or any Restricted Subsidiary in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;

    (11)
    repurchases of the notes;

    (12)
    advances and prepayments for asset purchases in the ordinary course of business in a Permitted Business of NGL Energy or any of its Restricted Subsidiaries;

    (13)
    receivables owing to NGL Energy or any Restricted Subsidiary created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided , however , that such trade terms may include such concessionary trade terms as NGL Energy or any such Restricted Subsidiary deems reasonable under the circumstances;

    (14)
    any Guarantee of Indebtedness permitted to be incurred by the covenant entitled "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" other than a guarantee of Indebtedness of an Affiliate of NGL Energy that is not a Restricted Subsidiary;

    (15)
    any Investment existing on, or made pursuant to binding commitments existing on, the Issue Date and any Investment consisting of an extension, modification or renewal of any Investment existing on, or made pursuant to a binding commitment existing on, the Issue Date; provided that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted under the indenture;

    (16)
    surety and performance bonds and workers' compensation, utility, lease, tax, performance and similar deposits and prepaid expenses in the ordinary course of business;

    (17)
    guarantees by NGL Energy or any of its Restricted Subsidiaries of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by NGL Energy or any such Restricted Subsidiary in the ordinary course of business;

    (18)
    Permitted Business Investments;

    (19)
    Investments received as a result of a foreclosure by NGL Energy or any of its Restricted Subsidiaries with respect to any secured Investment in default;

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    (20)
    Investments acquired after the Issue Date as a result of the acquisition by NGL Energy or any Restricted Subsidiary of another Person, including by way of a merger, amalgamation or consolidation with or into NGL Energy or any of its Restricted Subsidiaries, or all or substantially all of the assets of another Person, in each case, in a transaction that is not prohibited by the covenant described above under the caption "—Merger, Consolidation or Sale of Assets" after the Issue Date to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation; and

    (21)
    other Investments in any Person (including Investments in any Joint Venture) having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (21) that are at the time outstanding that do not exceed the greater of (a) $75.0 million and (b) 3.25% of the Total Assets of NGL Energy; provided , however , that if any Investment pursuant to this clause (21) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (21) for so long as such Person continues to be a Restricted Subsidiary.

        " Permitted Liens " means, with respect to any Person:

    (1)
    Liens securing Indebtedness incurred under Credit Facilities that is permitted to be incurred pursuant to clause (1) of the definition of Permitted Debt in the covenant described under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock";

    (2)
    Liens securing (a) Indebtedness incurred under the first paragraph of the covenant described above under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" not to exceed $250.0 million in the aggregate; provided that the Existing Senior Secured Notes and all Permitted Refinancing Indebtedness in respect thereof shall have been repaid, repurchased or redeemed in full or (b) up to $250.0 million of Indebtedness under the Existing Senior Secured Notes;

    (3)
    Liens securing Indebtedness of Foreign Subsidiaries that is permitted to be incurred pursuant to clause (14) of the definition of Permitted Debt in the covenant described under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock";

    (4)
    Liens to secure Hedging Obligations and/or Obligations with respect to Treasury Management Arrangements incurred in the ordinary course of business;

    (5)
    Liens on property of a Person existing at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with NGL Energy or any Restricted Subsidiary; provided that such Liens were in existence prior to the contemplation of such Person becoming a Restricted Subsidiary or such merger or consolidation and do not extend to any assets (other than improvements thereon, accessions thereto and proceeds thereof) other than those of the Person that becomes a Restricted Subsidiary or is merged with or into or consolidated with NGL Energy or any Restricted Subsidiary;

    (6)
    Liens on property (including Capital Stock) existing at the time of acquisition of the property by NGL Energy or any Subsidiary of NGL Energy, including any acquisition by means of a merger or consolidation with or into NGL Energy or a Restricted Subsidiary; provided that such Liens were in existence prior to such acquisition and not incurred in contemplation of, such acquisition;

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    (7)
    Liens, pledges or deposits by such Person under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits or cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred in the ordinary course of business;

    (8)
    landlords', carriers', warehousemen's, mechanics', materialmen's, repairmen's or similar Liens arising by contract or statute in the ordinary course of business and with respect to amount that are not yet delinquent or are being contested in good faith by appropriate proceedings;

    (9)
    Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (4) of the definition of Permitted Debt in the covenant described under the caption "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock" covering only the assets acquired with or financed by such Indebtedness;

    (10)
    Liens to secure Indebtedness of Restricted Subsidiaries that are not Guarantors permitted under the covenant entitled "—Covenants—Incurrence of Indebtedness and Issuance of Preferred Stock"; provided that such Liens may not extend to any property or assets of NGL Energy or any Guarantor other than the Capital Stock of any non-Guarantor Restricted Subsidiaries;

    (11)
    Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Joint Venture owned by NGL Energy or any Restricted Subsidiary to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Joint Venture;

    (12)
    Liens on any asset or property acquired, constructed or improved by NGL Energy or any of its Restricted Subsidiaries; provided that (a) such Liens are in favor of the seller of such asset or property, in favor of the Person or Persons developing, constructing, repairing or improving such asset or property, or in favor of the Person or Persons that provided the funding for the acquisition, development, construction, repair or improvement cost, as the case may be, of such asset or property, (b) such Liens are created within 360 days after the acquisition, development, construction, repair or improvement, (c) the aggregate principal amount of the Indebtedness secured by such Liens is otherwise permitted to be incurred under the indenture and does not exceed the greater of (i) the cost of the asset or property so acquired, constructed or improved plus related financing costs and (ii) the Fair Market Value of the asset or property so acquired, constructed or improved, measured at the date of such acquisition, or the date of completion of such construction or improvement, and (d) such Liens are limited to the asset or property so acquired, constructed or improved (including the proceeds thereof, accessions thereto, upgrades thereof and improvements thereto);

    (13)
    Liens existing on the Issue Date;

    (14)
    Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

    (15)
    Liens imposed by law, such as carriers', warehousemen's, landlord's and mechanics' Liens, in each case, incurred in the ordinary course of business;

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    (16)
    survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, leases and subleases of real property, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of NGL Energy and its Restricted Subsidiaries, considered as a single enterprise;

    (17)
    Liens created for the benefit of (or to secure) the notes or the Note Guarantees or other obligations under the indenture and Liens securing any Indebtedness equally and ratably with all Obligations due under the notes or any Note Guarantee pursuant to a contractual covenant that limits Liens in a manner substantially similar to the covenant described above under "—Covenants-Liens";

    (18)
    Liens on pipelines or pipeline facilities that arise by operation of law;

    (19)
    Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under the indenture; provided , however , that the new Lien is limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof);

    (20)
    Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings;

    (21)
    filing of Uniform Commercial Code financing statements as a precautionary measure in connection with operating leases;

    (22)
    bankers' Liens, rights of setoff, Liens arising out of judgments, attachments or awards not constituting an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;

    (23)
    Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;

    (24)
    Liens on specific items of inventory or other goods (and the proceeds thereof) of any Person securing such Person's obligations in respect of bankers' acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

    (25)
    grants of software and other technology licenses in the ordinary course of business;

    (26)
    Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;

    (27)
    Liens in favor of the Issuers or any of the Guarantors;

    (28)
    Liens arising under operating agreements, joint venture agreements, partnership agreements, construction agreements, oil and gas leases, farmout agreements, division orders, agreements for the purchase, gathering, processing, treatment, sale, transportation or exchange of Hydrocarbons, unitization and pooling designations, declarations, orders and agreements, development agreements, participating agreements, area of mutual interest agreements, gas balancing agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, and other agreements arising in the ordinary course of NGL Energy's or any of its Restricted Subsidiaries' business that are customary in the Permitted Business;

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    (29)
    Liens on, or related to, properties or assets to secure all or part of the costs incurred in the ordinary course of a Permitted Business for gathering, transporting, compressing, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, including entering into Hedging Obligations to support these businesses and the development, manufacture or sale of equipment or technology related to these activities;

    (30)
    Liens arising solely by virtue of any statutory or common law provisions relating to bankers' Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained or deposited with a depositary institution; provided that:

    (a)
    such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by NGL Energy in excess of those set forth by regulations promulgated by the Federal Reserve Board; and

    (b)
    such deposit account is not intended by NGL Energy or any Restricted Subsidiary to provide collateral to the depository institution;

    (31)
    Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by NGL Energy and its Restricted Subsidiaries in the ordinary course of business;

    (32)
    Liens arising under the indenture in favor of the trustee under the indenture for its own benefit and similar Liens in favor of other trustees, agents and representatives arising under instruments governing Indebtedness permitted to be incurred under the indenture; provided that such Liens are solely for the benefit of the trustees, agents or representatives in their capacities as such and not for the benefit of the holders of the Indebtedness; and

    (33)
    Liens incurred in the ordinary course of business of NGL Energy or any Restricted Subsidiary with respect to obligations at any one time outstanding not to exceed the greater of (a) $75.0 million and (b) 3.25% of the Total Assets of NGL Energy.

        " Permitted Refinancing Indebtedness " means any Indebtedness of NGL Energy or any of its Restricted Subsidiaries, any Disqualified Stock of NGL Energy or any preferred stock of any Restricted Subsidiary (a) issued in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease, discharge or otherwise retire for value, in whole or in part, or (b) constituting an amendment, modification or supplement to or a deferral or renewal of (clauses (a) and (b), collectively, a " Refinancing, " and the term " Refinanced " has a correlative meaning) any other Indebtedness of NGL Energy or any of its Restricted Subsidiaries (other than intercompany Indebtedness), any Disqualified Stock of NGL Energy or any preferred stock of a Restricted Subsidiary in a principal amount or, in the case of Disqualified Stock of NGL Energy or preferred stock of a Restricted Subsidiary, liquidation preference, not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection with the Refinancing) the lesser of:

    (1)
    the principal amount or, in the case of Disqualified Stock or preferred stock, liquidation preference, of the Indebtedness, Disqualified Stock or preferred stock so Refinanced (plus, in the case of Indebtedness, the amount of premium, if any paid in connection therewith); and

    (2)
    if the Indebtedness being Refinanced was issued with any original issue discount, the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time of such Refinancing.

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        Notwithstanding the preceding, no Indebtedness, Disqualified Stock or preferred stock will be deemed to be Permitted Refinancing Indebtedness, unless:

    (i)
    such Indebtedness, Disqualified Stock or preferred stock has a final maturity date or redemption date, as applicable, no earlier than the final maturity date or redemption date, as applicable, of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness, Disqualified Stock or preferred stock being Refinanced;

    (ii)
    if the Indebtedness, Disqualified Stock or preferred stock being Refinanced is contractually subordinated or otherwise junior in right of payment to the notes, such Indebtedness (and any related Guarantee), Disqualified Stock or preferred stock is contractually subordinated or otherwise junior in right of payment to, the notes, on terms at least as favorable to the holders of notes as those contained in the documentation governing the Indebtedness, Disqualified Stock or preferred stock being Refinanced at the time of the Refinancing; and

    (iii)
    such Indebtedness or Disqualified Stock is incurred or issued by NGL Energy or such Indebtedness, Disqualified Stock or preferred stock is incurred or issued by the Restricted Subsidiary who is the obligor on the Indebtedness being Refinanced or the issuer of the Disqualified Stock or preferred stock being Refinanced; provided that a Restricted Subsidiary that is also a Guarantor may guarantee Permitted Refinancing Indebtedness incurred by NGL Energy, regardless of whether such Restricted Subsidiary was an obligor or guarantor of the Indebtedness being Refinanced.

        Notwithstanding the foregoing, any Indebtedness incurred under Credit Facilities shall be subject to the refinancing provision of the definition of Credit Facilities and not pursuant to the requirements set forth in this definition of Permitted Refinancing Indebtedness.

        " Person " means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

        " Rating Agency " means each of S&P, Moody's and Fitch, or if (and only if) any of S&P, Moody's or Fitch shall not make a rating on the notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by NGL Energy, which shall be substituted for S&P, Moody's or Fitch, as the case may be.

        " Rating Decline " means a decrease in the rating of the notes by at least two Rating Agencies by one or more gradations (including gradations within rating categories as well as between rating categories). In determining whether the rating of the notes has decreased by one or more gradations, gradations within rating categories, such as + or – for S&P, and 1, 2, and 3 for Moody's, will be taken into account; for example, in the case of S&P, a rating decline either from BB+ to BB or BB– to B+ will constitute a decrease of one gradation.

        " Registration Rights Agreement " means (1) with respect to the notes issued on the Issue Date, the registration rights agreement dated the Issue Date among the Issuers, the Guarantors on the Issue Date, and the initial purchasers of such notes that are signatories thereto, and (2) with respect to any additional notes, any registration rights agreement among the Issuers and the other parties thereto relating to the registration by the Issuers of such additional notes under the Securities Act.

        " Reporting Default " means a Default described in subclause (b) of clause (5) under "—Events of Default and Remedies."

        " Restricted Investment " means an Investment other than a Permitted Investment.

        " Restricted Subsidiary " means any Subsidiary of NGL Energy, other than an Unrestricted Subsidiary.

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        " S&P " means S&P Global Inc., or any successor to the rating business thereof.

        " SEC " means the United States Securities and Exchange Commission.

        " Securities Act " means the Securities Act of 1933, as amended.

        " Senior Debt " means:

    (1)
    all Indebtedness of NGL Energy or any of its Restricted Subsidiaries outstanding under Credit Facilities and all Hedging Obligations with respect thereto;

    (2)
    the notes and any other Indebtedness of NGL Energy or any of its Restricted Subsidiaries permitted to be incurred under the terms of the indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the notes or any Note Guarantee; and

    (3)
    all Obligations with respect to the items listed in the preceding clauses (1) and (2).

Notwithstanding anything to the contrary in the preceding sentence, Senior Debt will not include:

    (i)
    any intercompany Indebtedness of NGL Energy or any of its Subsidiaries to NGL Energy or any of its Affiliates;

    (ii)
    any Indebtedness that is incurred in violation of the indenture; or

    (iii)
    any trade payables or taxes owed or owing by NGL Energy or any of its Restricted Subsidiaries.

        " Significant Subsidiary " means any Restricted Subsidiary that would be a " significant subsidiary " as defined in Article 1, Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.

        " Stated Maturity " means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the first date it was incurred in compliance with the terms of the indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof; provided that, in the case of debt securities that are by their terms convertible into Capital Stock (or cash or a combination of cash and Capital Stock based on the value of the Capital Stock) of NGL Energy, any obligation to offer to repurchase such debt securities on a date(s) specified in the original terms of such securities, which obligation is not subject to any condition or contingency, will be treated as a Stated Maturity date of such convertible debt securities.

        " Subordinated Debt " means Indebtedness of NGL Energy or a Guarantor that is contractually subordinated in right of payment (by its terms or the terms of any document or instrument relating thereto) to the notes or the Note Guarantee of such Guarantor, as applicable.

        " Subsidiary " means, with respect to any specified Person:

    (1)
    any corporation, association or other business entity (other than a partnership or a limited liability company) of which more than 50% of the total voting power of its Voting Stock is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

    (2)
    any partnership or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or

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      otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

        " Total Assets " of any Person means, as of any date, the amount that, in accordance with GAAP, would be set forth under the caption "Total Assets" (or any like caption) on a consolidated balance sheet of such Person and its Restricted Subsidiaries, as of the end of the most recently ended fiscal quarter for which internal financial statements are available; provided , however that such amount shall be adjusted to give pro forma effect to any subsequent Investment, acquisition or disposition of any assets or Person (regardless of whether effected as a merger, purchase or sale of Equity Interests, asset acquisition or disposition or other form of acquisition or disposition) by such Person or any of its Restricted Subsidiaries, including any such Investment, acquisition or disposition that is pending and giving rise to the need to determine the amount of Total Assets, as if such transaction had occurred immediately prior to the end of such most recently ended fiscal quarter.

        " Treasury Management Arrangement " means any agreement or other arrangement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

        " Unrestricted Subsidiary " means any Subsidiary of NGL Energy (excluding Finance Corp.) that is designated by the Board of Directors of NGL Energy as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:

    (1)
    except to the extent permitted by subclause (2)(b) of the definition of " Permitted Business Investments, " has no Indebtedness other than Non-Recourse Debt owing to any Person other than NGL Energy or any of its Restricted Subsidiaries;

    (2)
    is a Person with respect to which neither NGL Energy nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person's financial condition or to cause such Person to achieve any specified levels of operating results; and

    (3)
    has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of NGL Energy or any of its Restricted Subsidiaries, except to the extent such Guarantee or credit support would be released upon such designation.

        All Subsidiaries of an Unrestricted Subsidiary shall also be Unrestricted Subsidiaries.

        " Voting Stock " of any specified Person as of any date means the Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of Capital Stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors of such Person; provided that, with respect to a limited partnership or other entity which does not have a Board of Directors, Voting Stock means the Capital Stock of the general partner of such limited partnership or other business entity with the ultimate authority to manage the business and operations of such Person.

        " Weighted Average Life to Maturity " means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

    (1)
    the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

    (2)
    the then outstanding principal amount of such Indebtedness.

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PLAN OF DISTRIBUTION

        Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker- dealer in connection with resales of new notes received in exchange for old notes where such old notes were acquired as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the consummation of the exchange offer, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until                         , 2017, all dealers effecting transactions in the new notes may be required to deliver a prospectus.

        We will not receive any proceeds from any sale of new notes by broker-dealers. New notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such new notes. Any broker-dealer that resells new notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such new notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any such resale of new notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.

        For a period of 180 days after the consummation of the exchange offer, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all reasonable expenses incident to the exchange offer (including the reasonable expenses of one counsel for the holders of the notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the old notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.

        Following completion of the exchange offer, we may, in our sole discretion, commence one or more additional exchange offers to holders of old notes who did not exchange their old notes for new notes in the exchange offer on terms which may differ from those contained in this prospectus and the enclosed letter of transmittal. This prospectus, as it may be amended or supplemented from time to time, may be used by us in connection with any additional exchange offers. These additional exchange offers may take place from time to time until all outstanding old notes have been exchanged for new notes, subject to the terms and conditions in the prospectus and letter of transmittal distributed by us in connection with these additional exchange offers.

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CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES

        The following discussion is a summary of certain U.S. federal income tax considerations relevant to the exchange of old notes for new notes, but does not purport to be a complete analysis of all potential tax effects. The discussion is based upon the Internal Revenue Code of 1986, as amended, Treasury Regulations, Internal Revenue Service rulings and pronouncements and judicial decisions now in effect, all of which may be subject to change at any time by legislative, judicial or administrative action. These changes may be applied retroactively in a manner that could adversely affect a holder of new notes. We cannot assure you that the Internal Revenue Service will not challenge one or more of the tax consequences described in this discussion, and we have not obtained, nor do we intend to obtain, a ruling from the Internal Revenue Service or an opinion of counsel with respect to the U.S. federal tax consequences described herein. Some holders, including financial institutions, insurance companies, regulated investment companies, tax-exempt organizations, dealers in securities or currencies, persons whose functional currency is not the U.S. dollar or persons who hold the notes as part of a hedge, conversion transaction, straddle or other risk reduction transaction may be subject to special rules not discussed below.

         We recommend that each holder consult his own tax advisor as to the particular tax consequences of exchanging such holder's old notes for new notes, including the applicability and effect of any foreign, state, local or other tax laws or estate or gift tax considerations.

        We believe that the exchange of old notes for new notes will not be a taxable exchange to a holder for U.S. federal income tax purposes. Accordingly, a holder will not recognize gain or loss upon receipt of a new note in exchange for an old note in the exchange, and the holder's basis and holding period in the new note will be the same as its basis and holding period in the corresponding old note immediately before the exchange.

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LEGAL MATTERS

        The validity of the new notes offered in this exchange offer will be passed on by Andrews Kurth Kenyon LLP, Houston, Texas. Certain matters with respect to Colorado law will be passed upon by Arkan Haile, Denver, Colorado, internal counsel to NGL Energy Partners LP. Certain matters with respect to Oklahoma law will be passed upon by Kurston McMurray, Tulsa, Oklahoma, internal counsel to NGL Energy Partners LP. Certain matters with respect to Wyoming law will be passed upon by Holland & Hart LLP, Cheyenne, Wyoming. Certain matters with respect to Utah law will be passed upon by Holland & Hart LLP, Salt Lake City, Utah. Certain matters with respect to Alberta law will be passed upon by Norton Rose Fulbright Canada LLP, Calgary, Alberta.


EXPERTS

        The audited consolidated financial statements and management's assessment of the effectiveness of internal control over financial reporting of NGL Energy Partners LP incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.

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LOGO

    Dealer Prospectus Delivery Obligation

        Until                        , 2017, all dealers that effect transactions in these securities, whether or not participating in the offering, may be required to deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters and with respect to unsold allotments or subscriptions.


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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 20.    Indemnification of Directors and Officers.

Indemnification of Directors and Officers of NGL Energy Partners LP

        NGL Energy Partners LP is a Delaware limited partnership. Under our partnership agreement, in most circumstances, we will indemnify the following persons, to the fullest extent permitted by law, from and against all losses, claims, damages or similar events:

    its general partner;

    any departing general partner;

    any person who is or was an affiliate of a general partner or any departing general partner;

    any person who is or was a director, officer, member, partner, fiduciary or trustee of any entity set forth in the preceding three bullet points;

    any person who is or was serving as director, officer, member, partner, fiduciary or trustee of another person at the request of its general partner or any departing general partner; and

    any person designated by its general partner.

        Any indemnification under these provisions will only be out of NGL Energy Partners LP's assets. Unless it otherwise agrees, NGL Energy Partner LP's general partner will not be personally liable for, or have any obligation to contribute or loan funds or assets to NGL Energy Partners LP to enable us to effectuate, indemnification. NGL Energy Partners LP may purchase insurance against liabilities asserted against and expenses incurred by persons for its activities, regardless of whether it would have the power to indemnify the person against liabilities under its partnership agreement.

Indemnification of Directors and Officers of NGL Energy Finance Corp.

        NGL Energy Finance Corp. is organized under the laws of the state of Delaware. Section 145 of the General Corporation Law of the State of Delaware, among other things, empowers a Delaware corporation to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Similar indemnity is authorized for such persons against expenses (including attorneys' fees) actually and reasonably incurred by such persons in connection with the defense or settlement of any such threatened, pending or completed action or suit, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, provided that (unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized in each specific case upon a determination by the stockholders or disinterested directors or by independent legal counsel in a written opinion that indemnification is proper because the indemnitee has met the applicable standard of conduct.

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        Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.

        Article VI, Section 6.1 of the Bylaws of NGL Energy Finance Corp. provides that each person serving or having served as a director, officer, employee, or agent of NGL Energy Finance Corp. shall be indemnified by the company to the fullest extent of the law from and against any and all losses, claims, damages, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, in which such person may be involved by reason of the management of the affairs of the company.

Indemnification by the Registrant Guarantors

Delaware

         NGL Energy Operating LLC, NGL Crude Logistics, LLC, NGL Propane, LLC, NGL Liquids, LLC, NGL Energy Holdings II, LLC, NGL Crude Terminals, LLC, Osterman Propane, LLC, Hicksgas, LLC, NGL-NE Real Estate, LLC, NGL-MA Real Estate, LLC, NGL-MA, LLC, NGL Supply Terminal Company, LLC, NGL Supply Wholesale, LLC, NGL Water Solutions Eagle Ford, LLC, NGL Shipping and Trading, LLC, Sawtooth NGL Caverns, LLC, Grand Mesa Pipeline, LLC, TransMontaigne LLC, TransMontaigne Product Services LLC, TransMontaigne Services LLC and OPR, LLC

        Each of NGL Energy Operating LLC, NGL Crude Logistics, LLC, NGL Propane, LLC, NGL Liquids, LLC, NGL Energy Holdings II, LLC, NGL Crude Terminals, LLC, Osterman Propane, LLC, Hicksgas, LLC, NGL-NE Real Estate, LLC, NGL-MA Real Estate, LLC, NGL-MA, LLC, NGL Supply Terminal Company, LLC, NGL Supply Wholesale, LLC, NGL Water Solutions Eagle Ford, LLC, NGL Shipping and Trading, LLC, Sawtooth NGL Caverns, LLC, Grand Mesa Pipeline, LLC, TransMontaigne LLC, TransMontaigne Product Services LLC, TransMontaigne Services LLC and OPR, LLC is organized as a limited liability company under the laws of the state of Delaware. Under the Delaware Limited Liability Company Act, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.

        The limited liability company agreements of these entities provide that any person who is or was a director, officer, fiduciary, trustee, manager or managing member of each company (" Indemnitees ") shall be indemnified and held harmless from, to the fullest extent permitted by law, any and all losses, claims, damages, liabilities, joint or several, expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings in which any Indemnitee may be involved by reason of its status as an Indemnitee, unless a court finds that the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or acted with knowledge that the Indemnitee's conduct was unlawful.

High Sierra Energy, LP

        High Sierra Energy, LP is organized as a limited partnership under the laws of the state of Delaware. Under the limited partnership agreement of High Sierra Energy, LP, the partnership will indemnify and hold harmless the general partner of each respective entity and its officers, directors, shareholders, employees, agents and affiliates from and against any and all losses, claims, demands, costs, liabilities, joint and several, expenses, judgments, fines, settlements and other claims arising out of or incidental to the business or affairs of the partnership or acting as general partner, unless the

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indemnified party acted in bad faith, committed an act of gross negligence or willful misconduct, or did not reasonably believe they were acting in the best interests of the partnership.

Texas

Choya Operating, LLC and NGL Marine, LLC

        NGL Marine, LLC is organized under the laws of the state of Texas. The Texas Business Organizations Code ("TBOC") governs Texas limited liability companies. Section 8.051 of the TBOC states that: (a) An enterprise shall indemnify a governing person, former governing person, or delegate against reasonable expenses actually incurred by the person in connection with a proceeding in which the person is a respondent because the person is or was a governing person or delegate if the person is wholly successful, on the merits or otherwise, in the defense of the proceeding. (b) A court that determines, in a suit for indemnification, that a governing person, former governing person, or delegate is entitled to indemnification under this section shall order indemnification and award to the person the expenses incurred in securing the indemnification.

        Section 8.052 states that: (a) On application of a governing person, former governing person, or delegate and after notice is provided as required by the court, a court may order an enterprise to indemnify the person to the extent the court determines that the person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. (b) This section applies without regard to whether the governing person, former governing person, or delegate applying to the court satisfies the requirements of Section 8.101 or has been found liable: (1) to the enterprise; or (2) because the person improperly received a personal benefit, without regard to whether the benefit resulted from an action taken in the person's official capacity. (c) The indemnification ordered by the court under this section is limited to reasonable expenses if the governing person, former governing person, or delegate is found liable: (1) to the enterprise; or (2) because the person improperly received a personal benefit, without regard to whether the benefit resulted from an action taken in the person's official capacity.

        Section 8.101 states that: (a) An enterprise may indemnify a governing person, former governing person, or delegate who was, is, or is threatened to be made a respondent in a proceeding to the extent permitted by Section 8.102 if it is determined in accordance with Section 8.103 that: (1) the person: (A) acted in good faith; (B) reasonably believed: (i) in the case of conduct in the person's official capacity, that the person's conduct was in the enterprise's best interests; and (ii) in any other case, that the person's conduct was not opposed to the enterprise's best interests; and (C) in the case of a criminal proceeding, did not have a reasonable cause to believe the person's conduct was unlawful; (2) with respect to expenses, the amount of expenses other than a judgment is reasonable; and (3) indemnification should be paid. (b) Action taken or omitted by a governing person or delegate with respect to an employee benefit plan in the performance of the person's duties for a purpose reasonably believed by the person to be in the interest of the participants and beneficiaries of the plan is for a purpose that is not opposed to the best interests of the enterprise. (c) Action taken or omitted by a delegate to another enterprise for a purpose reasonably believed by the delegate to be in the interest of the other enterprise or its owners or members is for a purpose that is not opposed to the best interests of the enterprise. (d) A person does not fail to meet the standard under Subsection (a)(1) solely because of the termination of a proceeding by: (1) judgment; (2) order; (3) settlement; (4) conviction; or (5) a plea of nolo contendere or its equivalent.

        Section 8.102 states that: (a) Subject to Subsection (b), an enterprise may indemnify a governing person, former governing person, or delegate against: (1) a judgment; and (2) expenses, other than a judgment, that are reasonable and actually incurred by the person in connection with a proceeding. (b) Indemnification under this subchapter of a person who is found liable to the enterprise or is found liable because the person improperly received a personal benefit: (1) is limited to reasonable expenses

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actually incurred by the person in connection with the proceeding; (2) does not include a judgment, a penalty, a fine, and an excise or similar tax, including an excise tax assessed against the person with respect to an employee benefit plan; and (3) may not be made in relation to a proceeding in which the person has been found liable for: (A) willful or intentional misconduct in the performance of the person's duty to the enterprise; (B) breach of the person's duty of loyalty owed to the enterprise; or (C) an act or omission not committed in good faith that constitutes a breach of a duty owed by the person to the enterprise. (c) A governing person, former governing person, or delegate is considered to have been found liable in relation to a claim, issue, or matter only if the liability is established by an order, including a judgment or decree of a court, and all appeals of the order are exhausted or foreclosed by law.

        Section 8.105(b) states that: An enterprise shall indemnify an officer to the same extent that indemnification is required under this chapter for a governing person.

        Article VII of the Second Amended and Restated Limited Liability Company Agreement of NGL Marine, LLC gives the company the power to indemnify or reimburse for any expenses, to the fullest extent permitted by law, each (1) member of the company, (2) person who is or was a director, officer, fiduciary, trustee, manager or managing member of the company, (3) person who is or was serving at the request of the member of the company as a director, officer, fiduciary, trustee, manager or managing member of another person owing a fiduciary duty to the company or the member of the company, provided that a person shall not considered an indemnitee by reason of providing, on a fee-for-service basis, trustee, fiduciary or custodial services, (iv) any person that controls the member of the company and (v) any person the member of the company designates as an indemnitee for purposes of the Second Amended and Restated Limited Liability Company Agreement of NGL Marine, LLC.

        Article VIII of the Amended and Restated Company Agreement of Choya Operating, LLC states that Choya Operating, LLC shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of Choya Operating, LLC or if brought by such person against the Choya Operating, LLC) by reason of the fact that he is or was a covered person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or it in connection with such action, suit or proceeding if he or it acted in good faith and in a manner he or it reasonably believed to be in or not opposed to the Choya Operating, LLC's best interests, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or its conduct was unlawful regardless of whether arising from any act or omission which constituted the sole, partial or concurrent negligence (whether active or passive) of such covered person.

Colorado

         High Sierra Crude Oil & Marketing, LLC, NGL Crude Canada Holdings, LLC, Centennial Energy, LLC, NGL Water Solutions, LLC, NGL Water Solutions DJ, LLC, NGL Water Solutions Permian, LLC, NGL Milan Investments, LLC, NGL Water Solutions Mid-Continent, LLC, NGL Crude Transportation, LLC, NGL Water Solutions Bakken, LLC and NGL Energy Equipment LLC

        Each of High Sierra Crude Oil & Marketing, LLC, NGL Crude Canada Holdings, LLC, Centennial Energy, LLC, NGL Water Solutions, LLC, NGL Water Solutions DJ, LLC, NGL Water Solutions Permian, LLC, NGL Milan Investments, LLC, NGL Water Solutions Mid-Continent, LLC, NGL Crude Transportation, LLC, NGL Water Solutions Bakken, LLC and NGL Energy Equipment LLC is organized under the laws of the state of Colorado. Section 7-80-104(1)(k) of the Colorado Limited Liability Company Act permits a company to indemnify a member or manager or former member or manager of the limited liability company as provided in section 7-80-407. Under Section 7-80-407, a limited liability company shall reimburse a person who is or was a member or

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manager for payments made, and indemnify a person who is or was a member or manager for liabilities incurred by the person, in the ordinary course of the business of the limited liability company or for the preservation of its business or property, if such payments were made or liabilities incurred without violation of the person's duties to the limited liability company.

        The limited liability company operating agreements of these entities provide that managing members of each company shall not be liable, responsible, or accountable and to any member of the company and shall be indemnified by the company for any act performed by the managing member within the scope of the authority of the managing member, except for actions constituting fraud, gross negligence, or intentional breach of the applicable limited liability company operating agreement or applicable law.

Wyoming

AntiCline Disposal, LLC

        AntiCline Disposal, LLC is organized under the laws of the state of Wyoming. Section 408 of the Wyoming Limited Liability Company Act allows limited liability companies to purchase insurance and repay for any payment made and indemnify for any debt, obligation, or other liability incurred by a member of a member-managed company or the manager of a member-managed company in the course of the member's or manager's activities on behalf of the company.

        Section 9.1 of the limited liability company operating agreement of AntiCline Disposal, LLC provides that the company will indemnify and hold harmless, to the fullest extent permitted by law, any employee, officer, shareholder, director, officer, partner, or any member of any management committee from and against all losses, claims, damages, liabilities, joint or several, expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative in which the person may be involved by reason of the person's status with the company, as long as the person acted in good faith and in a manner the person reasonably believed to be in the best interests of the company and not unlawful.

Alberta

Centennial Gas Liquids, ULC and NGL Crude Canada ULC

        Centennial Gas Liquids, ULC is an Alberta unlimited liability corporation. Under the Canada Business Corporations Act ("CBCA"), a corporation may indemnify certain persons associated with the corporation or, at the request of the corporation, another entity, against all costs, charges, and expenses (including an amount paid to settle an action or satisfy a judgment) reasonably incurred by him or her in respect of any civil, criminal, administrative, investigative, or other proceeding in which he or she is involved because of that association with the corporation or other entity. Indemnifiable persons are current and former directors or officers, other individuals who act or acted at the corporation's request as a director or officer, or an individual acting in a similar capacity of another entity.

        The law permits indemnification only if the indemnifiable person acted honestly and in good faith with a view to the best interests of the corporation or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer in a similar capacity at the corporation's request and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he or she had reasonable grounds for believing his or her conduct was lawful and he or she was not judged by a court or other competent authority to have committed any fault or omitted to do anything he or she ought to have done. With the approval of the court, a corporation may also indemnify an indemnifiable person in respect of an action by or on behalf of the

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corporation to which the indemnifiable person is made a party because of his or her association with the corporation.

        Section 6.02 of the bylaws of Centennial Gas Liquids, ULC allows the corporation to indemnify any director, officer, former director, former officer, or any person who acts or acted at the corporation's request as a director or officer against all costs, charges and expenses reasonably incurred by the person in respect of any civil, criminal, or administrative action or proceeding to which the person is made a party by reason of being or having been a director or officer of the corporation, as long as the person acted honestly and in good faith with a view to the best interests of the Corporation, and the person had reasonable grounds for believing his conduct was lawful.

        Section 5.02 of NGL Crude Canada ULC's By-law No. 1 allows the corporation to indemnify each present and former director and officer against and from all liabilities, claims, costs, damages, fines, penalties, charges and expenses (including, without limitation, reasonable legal fees and disbursements on a full indemnity basis, and any amount reasonably paid to settle an action or satisfy a judgment) suffered or incurred by such Indemnified Person in connection with any civil, criminal, administrative or other claim, action or proceeding to which he is made a party by reason of his being or having been a director or officer of the corporation or any other entity of which the corporation is or was a shareholder, creditor or other oblige, or in any way caused by or arising from or in consequence of any act or omission or alleged act or omission arising out of or in connection with the activities of the indemnified person in his role as a director or officer of the corporation, or believed by the indemnified person to be in furtherance of the interests of the corporation, and the corporation shall do all things reasonably required of it to give full effect to such indemnification; provided, however that no indemnified person shall be entitled to any indemnification in respect of any such liabilities, claims, costs, damages, fines, penalties charges or expenses if, and to the extent that, they arise out of any act or omission involving a conscious or careless disregard of the indemnified person's obligation to act honestly and in good faith with a view to the best interests of the corporation.

Utah

NGL Supply Terminal Solution Mining, LLC

        NGL Supply Terminal Solution Mining, LLC is organized under the laws of the state of Utah. Pursuant to Section 48-3a-408 of the Utah Revised Uniform Limited Liability Company Act, a company is permitted to indemnify a member or manager or former member or manager of the limited liability company for actions taken in his or her capacity as a member or manager. Furthermore, a company may advance reasonable expenses, including attorney's fees and costs, incurred by a person in connection with a claim or demand against the person by reason of the person's former or present capacity as a member or manager of the limited liability company if the person promises to repay the company if ultimately determined not to be entitled to be indemnified under Section 48-3a-408(2). Moreover, a limited liability company may purchase and maintain insurance on behalf of a member or manager of the company against liability asserted against or incurred by the member or manager in that capacity or arising from that status.

        Section 7(c) of the First Amended and Restated Limited Liability Company Agreement of NGL Supply Terminal Solution Mining, LLC provides that the company will indemnify and hold harmless, to the fullest extent permitted by law, any employee, officer, member, manager from and against all losses, claims, damages, liabilities, joint or several, expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative in which the person may be involved, or may be threatened to be involved, by reason of the person's status with the company, as long as the person acted in good faith and in a manner the person reasonably believed to be in the best interests of the company and not unlawful.

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Oklahoma

NGL Crude Pipelines, LLC and NGL Crude Cushing, LLC

        NGL Crude Pipelines, LLC and NGL Crude Cushing, LLC are organized under the laws of the state of Oklahoma. Section 2003 of the Oklahoma Limited Liability Company Act provides that an Oklahoma limited liability company may indemnify and hold harmless any member, agent, or employee from and against any and all claims and demands whatsoever, except in the case of action or failure to act by the member, agent, or employee which constitutes willful misconduct or recklessness, and subject to the standards and restrictions, if any, set forth in the articles of organization or operating agreement. Section 2017 of the Oklahoma Limited Liability Company Act provides that the articles of organization or operating agreement of a Oklahoma limited liability company may eliminate or limit the personal liability of a member or manager for monetary damages for breach of any fiduciary duty, and provide for indemnification of a member or manager for judgments, settlements, penalties, fines or expenses incurred in any proceeding because the person is or was a member or manager, except that any such provisions may not limit or eliminate the liability of a manager for (1) any breach of the manager's duty of loyalty to the limited liability company or its members; (2) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or (3) any transaction from which the manager derived an improper personal benefit.

        Article VII of the limited liability agreements of each of NGL Crude Pipelines, LLC and NGL Crude Cushing, LLC gives each company the power to indemnify or reimburse for any expenses, to the fullest extent permitted by law, each (1) member of the company, (2) person who is or was a director, officer, fiduciary, trustee, manager or managing member of the company, (3) person who is or was serving at the request of the member of the company as a director, officer, fiduciary, trustee, manager or managing member of another person owing a fiduciary duty to the company or the member of the company, provided that a person shall not considered an indemnitee by reason of providing, on a fee-for-service basis, trustee, fiduciary or custodial services, (iv) any person that controls the member of the company and (v) any person the member of the company designates as an indemnitee for purposes of limited liability agreements of each of NGL Crude Pipelines, LLC and NGL Crude Cushing, LLC, respectively.

Item 21.    Exhibits and Financial Statement Schedules.

        (a)   The following documents are filed as exhibits to this Registration Statement, including those exhibits incorporated herein by reference to a prior filing of the Company under the Securities Act or the Exchange Act as indicated in parentheses:

Exhibit
Number
  Description
  1.1 * Purchase Agreement, dated October 19, 2016, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors party thereto and Barclays Capital Inc., as representative of the initial purchasers named therein (incorporated by reference to Exhibit 1.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 24, 2016).
        
  3.1 * Certificate of Limited Partnership of NGL Energy Partners LP (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  3.2 * Certificate of Amendment to Certificate of Limited Partnership of NGL Energy Partners LP (incorporated by reference to Exhibit 3.2 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
 
   

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Exhibit
Number
  Description
  3.3 * Fourth Amended and Restated Agreement of Limited Partnership of NGL Energy Partners LP, dated as of June 13, 2017 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 13, 2017).
        
  3.4 * Certificate of Formation of NGL Energy Holdings LLC (incorporated by reference to Exhibit 3.4 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  3.5 * Certificate of Amendment to Certificate of Formation of NGL Energy Holdings LLC (incorporated by reference to Exhibit 3.5 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  3.6 * Third Amended and Restated Limited Liability Company Agreement of NGL Energy Holdings LLC (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35172) filed on February 28, 2013).
        
  3.7 * Amendment No. 1 to Third Amended and Restated Limited Liability Company Agreement of NGL Energy Holdings LLC, dated as of August 6, 2013 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on August 7, 2013).
        
  3.8 * Amendment No. 2 to Third Amended and Restated Limited Liability Company Agreement of NGL Energy Holdings LLC, dated as of June 27, 2014 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 3, 2014).
        
  3.9 * Amendment No. 3 to Third Amended and Restated Limited Liability Company Agreement of NGL Energy Holdings LLC, dated as of June 24, 2016 (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  3.10 * Certificate of Formation of NGL Energy Finance Corp. (incorporated by reference to Exhibit 3.13 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.11 * Bylaws of NGL Energy Finance Corp. (incorporated by reference to Exhibit 3.13 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.12 * Certificate of Formation of NGL Energy Operating LLC (incorporated by reference to Exhibit 3.15 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.13 * Certificate of Amendment to Certificate of Formation of NGL Energy Operating LLC (incorporated by reference to Exhibit 3.16 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.14 * Limited Liability Company Agreement of NGL Energy Operating LLC (incorporated by reference to Exhibit 3.17 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.15 * First Amendment to the Limited Liability Company Agreement of NGL Energy Operating LLC (incorporated by reference to Exhibit 3.18 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.16 * Certificate of Formation of NGL Crude Logistics, LLC (incorporated by reference to Exhibit 3.19 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

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Exhibit
Number
  Description
  3.17 * Certificate of Amendment to Certificate of Formation of NGL Crude Logistics, LLC (incorporated by reference to Exhibit 3.20 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.18 * Certificate of Amendment to Certificate of Formation of NGL Crude Logistics, LLC (incorporated by reference to Exhibit 3.21 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.19 * Third Amended and Restated Limited Liability Company Agreement of NGL Crude Logistics, LLC (incorporated by reference to Exhibit 3.22 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.20 * Certificate of Formation of NGL Propane, LLC (incorporated by reference to Exhibit 3.23 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.21 * Certificate of Amendment of Certificate of Formation NGL Propane, LLC (incorporated by reference to Exhibit 3.24 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
  3.22 * Amended and Restated Limited Liability Company Agreement NGL Propane, LLC (incorporated by reference to Exhibit 3.25 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.23 * Certificate of Formation of NGL Liquids, LLC (incorporated by reference to Exhibit 3.26 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.24 * Certificate of Amendment to Certificate of Formation of NGL Liquids, LLC (incorporated by reference to Exhibit 3.27 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.25 * Second Amended and Restated Limited Liability Company Agreement of NGL Liquids, LLC (incorporated by reference to Exhibit 3.28 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.26 * Articles of Organization of NGL Crude Transportation, LLC (incorporated by reference to Exhibit 3.29 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.27 * Limited Liability Company Agreement of NGL Crude Transportation, LLC (incorporated by reference to Exhibit 3.30 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.28 * Articles of Organization of NGL Crude Cushing, LLC (incorporated by reference to Exhibit 3.31 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.29 * Amended Articles of Organization of NGL Crude Cushing, LLC (incorporated by reference to Exhibit 3.32 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.30 * Second Amended and Restated Operating Agreement of NGL Crude Cushing, LLC (incorporated by reference to Exhibit 3.33 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

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Exhibit
Number
  Description
  3.31 * Articles of Organization of High Sierra Crude Oil & Marketing, LLC (incorporated by reference to Exhibit 3.34 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.32 * Amended and Restated Limited Liability Company Operating Agreement of High Sierra Crude Oil & Marketing, LLC (incorporated by reference to Exhibit 3.35 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.33 * Certificate of Limited Partnership of High Sierra Energy, LP (incorporated by reference to Exhibit 3.36 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.34 ** Third Amended and Restated Agreement of Limited Partnership of High Sierra Energy, LP.
        
  3.35 ** Amendment No. 1 to Third Amended and Restated Agreement of Limited Partnership of High Sierra Energy, LP.
        
  3.36 ** Articles of Organization of NGL Milan Investments, LLC
        
  3.37 ** Limited Liability Company Agreement of NGL Milan Investments, LLC.
        
  3.38 * Articles of Organization of NGL Crude Pipelines, LLC (incorporated by reference to Exhibit 3.43 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.39 * Amended Articles of Organization of NGL Crude Pipelines, LLC (incorporated by reference to Exhibit 3.44 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.40 * Second Amended and Restated Limited Liability Company Agreement of NGL Crude Pipelines, LLC (incorporated by reference to Exhibit 3.45 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.41 * Certificate of Formation of NGL Energy Logistics, LLC (incorporated by reference to Exhibit 3.46 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.42 * Certificate of Amendment of Certificate of Formation of NGL Energy Logistics, LLC (incorporated by reference to Exhibit 3.47 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.43 * Amended and Restated Operating Agreement of NGL Energy Logistics, LLC (incorporated by reference to Exhibit 3.48 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.44 * Certificate of Formation of NGL Energy Holdings II, LLC (incorporated by reference to Exhibit 3.49 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.45 * Certificate of Amendment to Certificate of Formation of NGL Energy Holdings II, LLC (incorporated by reference to Exhibit 3.50 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
  3.46 * Certificate of Amendment to Certificate of Formation of NGL Energy Holdings II, LLC (incorporated by reference to Exhibit 3.51 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

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Table of Contents

Exhibit
Number
  Description
  3.47 * Amended and Restated Operating Agreement of NGL Energy Holdings II, LLC (incorporated by reference to Exhibit 3.52 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.48 * Certificate of Formation of NGL Crude Terminals, LLC (incorporated by reference to Exhibit 3.53 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.49 * Certificate of Amendment to Certificate of Formation of NGL Crude Terminals, LLC (incorporated by reference to Exhibit 3.54 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.50 * Amended and Restated Operating Agreement of NGL Crude Terminals, LLC (incorporated by reference to Exhibit 3.55 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.51 * Articles of Organization of NGL Crude Canada Holdings, LLC (incorporated by reference to Exhibit 3.59 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
  3.52 * Articles of Amendment to Articles of Organization of NGL Crude Canada Holdings, LLC (incorporated by reference to Exhibit 3.60 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.53 * Amended and Restated Limited Liability Company Agreement of NGL Crude Canada Holdings, LLC (incorporated by reference to Exhibit 3.61 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.54 * Articles of Organization of NGL Marine, LLC (incorporated by reference to Exhibit 3.62 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.55 * Certificate of Amendment to Articles of Organization of NGL Marine, LLC (incorporated by reference to Exhibit 3.63 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.56 * Second Amended and Restated Limited Liability Company Agreement of NGL Marine, LLC (incorporated by reference to Exhibit 3.64 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.57 * Certificate of Formation of Osterman Propane, LLC (incorporated by reference to Exhibit 3.67 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.58 * Limited Liability Company Agreement of Osterman Propane, LLC (incorporated by reference to Exhibit 3.68 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.59 * Certificate of Formation of Hicksgas, LLC (incorporated by reference to Exhibit 3.69 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.60 * First Amended and Restated Limited Liability Company Agreement of Hicksgas, LLC (incorporated by reference to Exhibit 3.70 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.61 * Certificate of Formation of NGL-NE Real Estate, LLC (incorporated by reference to Exhibit 3.71 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

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Table of Contents

Exhibit
Number
  Description
  3.62 * Limited Liability Company Agreement of NGL-NE Real Estate, LLC (incorporated by reference to Exhibit 3.72 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.63 * Certificate of Formation of NGL-MA Real Estate, LLC (incorporated by reference to Exhibit 3.73 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.64 * Limited Liability Company Agreement of NGL-MA Real Estate, LLC (incorporated by reference to Exhibit 3.74 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.65 * Certificate of Formation of NGL-MA, LLC (incorporated by reference to Exhibit 3.75 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.66 * Limited Liability Company Agreement of NGL-MA, LLC (incorporated by reference to Exhibit 3.76 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.67 * Articles of Organization of Centennial Energy, LLC (incorporated by reference to Exhibit 3.77 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.68 * Articles of Amendment to Articles of Organization of Centennial Energy, LLC (incorporated by reference to Exhibit 3.78 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.69 * Amended and Restated Limited Liability Company Agreement of Centennial Energy, LLC (incorporated by reference to Exhibit 3.79 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.70 * Certificate of Incorporation of Centennial Gas Liquids ULC (incorporated by reference to Exhibit 3.80 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.71 * Bylaw No. 1 of Centennial Gas Liquids ULC (incorporated by reference to Exhibit 3.81 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.72 * Certificate of Formation of NGL Shipping and Trading, LLC (incorporated by reference to Exhibit 3.82 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.73 * Certificate of Amendment to Certificate of Formation of NGL Shipping and Trading, LLC (incorporated by reference to Exhibit 3.83 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.74 * Certificate of Amendment to Certificate of Formation of NGL Shipping and Trading, LLC (incorporated by reference to Exhibit 3.84 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.75 * Second Amended and Restated Operating Agreement of NGL Shipping and Trading, LLC (incorporated by reference to Exhibit 3.85 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

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Table of Contents

Exhibit
Number
  Description
  3.76 * Articles of Organization of NGL Supply Terminal Company, LLC (incorporated by reference to Exhibit 3.86 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.77 * Limited Liability Company Agreement of NGL Supply Terminal Company, LLC (incorporated by reference to Exhibit 3.87 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.78 * Certificate of Formation of NGL Supply Wholesale, LLC (incorporated by reference to Exhibit 3.88 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.79 * Limited Liability Company Agreement of NGL Supply Wholesale, LLC (incorporated by reference to Exhibit 3.89 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.80 * Articles of Organization of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.90 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.81 * Articles of Amendment to Articles of Organization of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.91 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.82 * Articles of Amendment to Articles of Organization of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.92 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.83 * Articles of Amendment to Articles of Organization of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.93 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.84 * Amended and Restated Limited Liability Company Agreement of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.94 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.85 * Articles of Organization of AntiCline Disposal, LLC (incorporated by reference to Exhibit 3.95 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.86 * First Amendment to Articles of Organization of AntiCline Disposal, LLC (incorporated by reference to Exhibit 3.96 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.87 * Second Amended and Restated Limited Liability Company Agreement of AntiCline Disposal, LLC (incorporated by reference to Exhibit 3.97 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.88 * Articles of Organization of NGL Water Solutions DJ, LLC (incorporated by reference to Exhibit 3.98 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.89 * Articles of Amendment to Articles of Organization of NGL Water Solutions DJ, LLC (incorporated by reference to Exhibit 3.99 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

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Table of Contents

Exhibit
Number
  Description
  3.90 * Articles of Amendment to Articles of Organization of NGL Water Solutions DJ, LLC (incorporated by reference to Exhibit 3.100 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.91 * Amended and Restated Limited Liability Company Agreement of NGL Water Solutions DJ, LLC (incorporated by reference to Exhibit 3.101 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.92 * Certificate of Formation of NGL Water Solutions Eagle Ford, LLC (incorporated by reference to Exhibit 3.102 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.93 * Certificate of Amendment to Certificate of Formation of NGL Water Solutions Eagle Ford, LLC (incorporated by reference to Exhibit 3.103 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.94 * Amended and Restated Limited Liability Company Agreement of NGL Water Solutions Eagle Ford, LLC (incorporated by reference to Exhibit 3.104 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.95 * Articles of Organization of NGL Water Solutions Permian, LLC (incorporated by reference to Exhibit 3.105 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.96 * Articles of Amendment to Articles of Organization of NGL Water Solutions Permian, LLC (incorporated by reference to Exhibit 3.106 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.97 * Amended and Restated Limited Liability Company Agreement of NGL Water Solutions Permian, LLC (incorporated by reference to Exhibit 3.107 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.98 ** Certificate of Formation of TransMontaigne LLC, dated December 30, 2014.
        
  3.99 ** First Amended and Restated Limited Liability Company of TransMontaigne LLC, dated January 31, 2017.
        
  3.100 ** Certificate of Formation of TransMontaigne Product Services LLC.
        
  3.101 ** Limited Liability Company Agreement of TransMontaigne Product Services LLC.
        
  3.102 ** Amendment No. 1 to Limited Liability Company Agreement of TransMontaigne Product Services LLC, dated February 1, 2016.
        
  3.103 ** Certificate of Formation of TransMontaigne Services LLC.
        
  3.104 ** Limited Liability Company Agreement of TransMontaigne Services LLC.
        
  3.105 ** Articles of Organization of NGL Water Solutions Bakken, LLC, dated October 17, 2014.
        
  3.106 ** Limited Liability Company Agreement of NGL Water Solutions Bakken, LLC, dated October 17, 2014.
        
  3.107 ** Certificate of Formation of Magnum NGLS, LLC, dated September 13, 2011.
        
  3.108 ** Certificate of Amendment to the Certificate of Formation of Magnum NGLS, LLC, dated March 18, 2015.
        
  3.109 ** First Amended and Restated Limited Liability Company Agreement of Sawtooth NGL Caverns, LLC, dated March 17, 2015.

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Table of Contents

Exhibit
Number
  Description
        
  3.110 ** Certificate of Formation of Grand Mesa Pipeline, LLC, dated July 11, 2014.
        
  3.111 ** First Amended and Restated Limited Liability Company Agreement of Grand Mesa Pipeline, LLC, dated as of December 2, 2014.
        
  3.112 ** Articles of Organization of Magnum NGLs Solution Mining LLC, dated March 18, 2013.
        
  3.113 ** Certificate of Amendment to Articles of Organization of Magnum NGLs Solution Mining LLC, dated March 17, 2015.
        
  3.114 ** Amendment to the Certificate of Organization of Magnum NGLs Solution Mining LLC.
        
  3.115 ** First Amended and Restated Limited Liability Company Agreement of NGL Supply Terminal Solution Mining, LLC, dated March 17, 2015.
        
  3.116 ** Articles of Organization of NGL Energy Equipment LLC, dated October 6, 2015.
        
  3.117 ** Limited Liability Company Agreement of NGL Energy Equipment LLC, dated October 6, 2015.
        
  3.118 ** Certificate of Formation of Choya Operating, LLC, dated April 2, 2013.
        
  3.119 ** Second Amended and Restated Company Agreement of Choya Operating, LLC, dated September 15, 2016.
        
  3.120 ** Certificate of Formation of OPR, LLC, dated August 19, 2015.
        
  3.121 ** First Amended and Restated Operating Company Agreement of OPR, LLC, dated August 19, 2015.
        
  3.122 ** Certificate of Incorporation of High Sierra Energy Canada ULC, dated January 16, 2013.
        
  3.123 ** By-Law No. 1 of NGL Crude Canada ULC, dated January 23, 2013.
        
  3.124 ** Articles of Organization of NGL Water Solutions Mid-Continent, LLC.
        
  3.125 ** Limited Liability Company Agreement of NGL Water Solutions Mid-Continent, LLC.
        
  4.1 * First Amended and Restated Registration Rights Agreement, dated October 3, 2011, by and among the Partnership, Hicks Oils & Hicksgas, Incorporated, NGL Holdings, Inc., Krim2010, LLC, Infrastructure Capital Management, LLC, Atkinson Investors, LLC, E. Osterman Propane, Inc. and the other holders party thereto (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on October 7, 2011).
        
  4.2 * Amendment No. 1 and Joinder to First Amended and Restated Registration Rights Agreement dated as of November 1, 2011 by and among the Partnership and SemStream (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on November 4, 2011).
  4.3 * Amendment No. 2 and Joinder to First Amended and Restated Registration Rights Agreement, dated January 3, 2012, by and among NGL Energy Holdings LLC, Liberty Propane, L.L.C., Pacer-Enviro Propane, L.L.C., Pacer-Pittman Propane, L.L.C., Pacer-Portland Propane, L.L.C., Pacer Propane (Washington), L.L.C., Pacer-Salida Propane, L.L.C. and Pacer-Utah Propane, L.L.C. (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on January 9, 2012).
 
   

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Table of Contents

Exhibit
Number
  Description
  4.4 * Amendment No. 3 and Joinder to First Amended and Restated Registration Rights Agreement, dated May 1, 2012, by and between NGL Energy Holdings LLC and Downeast Energy Corp. (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on May 4, 2012).
        
  4.5 * Amendment No. 4 and Joinder to First Amended and Restated Registration Rights Agreement, dated June 19, 2012, by and between NGL Energy Holdings LLC and NGP M&R HS LP LLC (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on June 25, 2012).
        
  4.6 * Amendment No. 5 and Joinder to First Amended and Restated Registration Rights Agreement, dated October 1, 2012, by and between NGL Energy Holdings LLC and Enstone, LLC (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 3, 2012).
        
  4.7 * Amendment No. 6 and Joinder to First Amended and Restated Registration Rights Agreement, dated November 13, 2012, by and between NGL Energy Holdings LLC and Gerald L. Jensen, Thrift Opportunity Holdings,  LP, Jenco Petroleum Corporation, Caritas Trust, Animosus Trust and Nitor Trust (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on November 19, 2012).
        
  4.8 * Amendment No. 7 and Joinder to First Amended and Restated Registration Rights Agreement, dated as of August 1, 2013, by and among NGL Energy Holdings LLC, Oilfield Water Lines, LP and Terry G. Bailey (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on August 7, 2013).
        
  4.9 * Amendment No. 8 and Joinder to First Amended and Restated Registration Rights Agreement, dated as of February 17, 2015, by and among NGL Energy Holdings LLC and Magnum NGL Holdco LLC (incorporated by reference to Exhibit 4.9 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.10 * Amendment No. 9 and Joinder to First Amended and Restated Registration Rights Agreement, dated as of February 25, 2016, by and among NGL Energy Holdings LLC and Magnum NGL Holdco LLC (incorporated by reference to Exhibit 4.10 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2016 filed with the SEC on May 31, 2015).
        
  4.11 * Indenture, dated as of October 16, 2013, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 16, 2013).
        
  4.12 * Forms of 6.875% Senior Notes due 2021 (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 16, 2013).
        
  4.13 * First Supplemental Indenture, dated as of December 2, 2013, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.19 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2014 filed with the SEC on May 30, 2014).
 
   

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Table of Contents

Exhibit
Number
  Description
  4.14 * Second Supplemental Indenture, dated as of April 22, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiary party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.20 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2014 filed with the SEC on May 30, 2014).
        
  4.15 * Third Supplemental Indenture, dated as of July 31, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiary party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.6 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2014 filed with the SEC on November 10, 2014).
        
  4.16 * Fourth Supplemental Indenture, dated as of December 1, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.25 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.17 * Fifth Supplemental Indenture, dated as of February 17, 2015, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.26 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.18 * Sixth Supplemental Indenture, dated as of August 21, 2015, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2015 filed with the SEC on November 9, 2015).
        
  4.19 * Registration Rights Agreement, dated as of October 16, 2013, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the Guarantors listed therein on Exhibit A and RBC Capital Markets, LLC as representative of the several initial purchasers (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 16, 2013).
        
  4.20 * Registration Rights Agreement, dated December 2, 2013, by and among NGL Energy Partners LP and the purchasers set forth on Schedule A thereto (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on December 5, 2013).
        
  4.21 * Indenture, dated as of July 9, 2014, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 9, 2014).
        
  4.22 * Forms of 5.125% Senior Notes due 2019 (incorporated by reference and included as Exhibits A1 and A2 to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 9, 2014).
        
  4.23 * Registration Rights Agreement, dated July 9, 2014, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the Guarantors listed therein on Exhibit A and RBS Securities Inc. as representative of the several initial purchasers (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 9, 2014).
 
   

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Table of Contents

Exhibit
Number
  Description
  4.24 * First Supplemental Indenture, dated as of July 31, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.5 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2014 filed with the SEC on November 10, 2014).
        
  4.25 * Second Supplemental Indenture, dated as of December 1, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.32 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.26 * Third Supplemental Indenture, dated as of February 17, 2015, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.33 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.27 * Fourth Supplemental Indenture, dated as of August 21, 2015, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.2 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2015 filed with the SEC on November 9, 2015).
        
  4.28 * Registration Rights Agreement, dated May 11, 2016, by and among NGL Energy Partners LP and Highstar NGL Prism/IV-A Interco LLC and Highstar NGL Main Interco LLC (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  4.29 * Amendment to Registration Rights Agreement, dated June 24, 2016, by and among NGL Energy Partners LP and Highstar NGL Prism/IV-A Interco LLC, Highstar NGL Main Interco LLC (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  4.30 * Limited Consent and Amendment No. 11 to Note Purchase Agreement, dated as of September 30, 2016, among the Partnership and the purchasers named therein (incorporated by reference to Exhibit 4.1 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2016 filed with the SEC on November 7, 2016).
        
  4.31 * Indenture, dated as of October 24, 2016, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on October 24, 2016).
        
  4.32 * Form of 7.5% Senior Notes due 2023 (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-35172) filed on October 24, 2016).
        
  4.33 * Registration Rights Agreement, dated as of October 24, 2016, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors listed therein on Exhibit A and Barclays Capital Inc. as representative of the several initial purchasers (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 24, 2016).
 
   

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Exhibit
Number
  Description
  4.34 * Indenture, dated as of February 22, 2017, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on February 22, 2017).
        
  4.35 * Forms of 6.125% Senior Notes due 2025 (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-35172) filed on February 22, 2017).
        
  4.36 * Registration Rights Agreement, dated as of February 22, 2017, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors listed therein on Exhibit A and RBC Capital Markets, LLC and Deutsche Bank Securities Inc. as representative of the several initial purchasers (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on February 22, 2017).
        
  4.37 * Amended and Restated Note Purchase Agreement, dated March 31, 2017 and effective as of December 31, 2016, by and among the Partnership and the purchasers named therein (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on April 4, 2017).
        
  5.1 ** Opinion of Andrews Kurth Kenyon LLP.
        
  5.2 ** Opinion of Arkan Haile.
        
  5.3 ** Opinion of Kurston McMurray.
        
  5.4 ** Opinion of Holland & Hart LLP.
        
  5.5 ** Opinion of Holland & Hart LLP.
        
  5.6 ** Opinion of Norton Rose Fulbright Canada LLP.
        
  10.1 * Credit Agreement, dated as of June 19, 2012, among NGL Energy Partners LP, the NGL subsidiary borrowers, the lenders party thereto and Deutsche Bank Trust Company Americas, as administrative agent (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on June 25, 2012).
        
  10.2 * Facility Increase Agreement, dated as of November 1, 2012, among NGL Energy Operating LLC, NGL Energy Partners LP, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on November 7, 2012).
        
  10.3 * Amendment No. 1 to Credit Agreement, dated as of January 15, 2013, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on January 18, 2013).
        
  10.4 * Amendment No. 2 to Credit Agreement, dated as of May 8, 2013, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No 001-35172) filed on May 9, 2013).
 
   

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Exhibit
Number
  Description
  10.5 * Amendment No. 3 to Credit Agreement, dated September 30, 2013, among NGL Energy Partners LP, NGL Energy Operating LLC, each subsidiary of NGL identified as a "Borrower" therein, Deutsche Bank AG, New York Branch, as technical agent, Deutsche Bank Trust Company Americas, as administrative agent and collateral agent and each financial institution identified as a "Lender" or "Issuing Bank" therein (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 3, 2013).
        
  10.6 * Amendment No. 4 to Credit Agreement, dated as of November 5, 2013, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on November 8, 2013).
        
  10.7 * Amendment No. 5 to Credit Agreement, dated as of December 23, 2013, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank and Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on December 30, 2013).
        
  10.8 * Facility Increase Agreement, dated as of December 30, 2013, among NGL Energy Operating LLC, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on January 3, 2014).
        
  10.9 * Amendment No. 6 to Credit Agreement, dated as of June 12, 2014, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on June 16, 2014).
        
  10.10 * Amendment No. 7 to Credit Agreement, dated as of June 27, 2014, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 3, 2014).
        
  10.11 * Facility Increase Agreement, dated December 1, 2014, among NGL Energy Operating LLC, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on December 1, 2014).
        
  10.12 * Amendment No. 8 to Credit Agreement, dated as of December 19, 2014 and effective as of December 26, 2014, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on January 2, 2015).
        
  10.13 * Amendment No. 9 to Credit Agreement, dated as of May 1, 2015, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.13 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
 
   

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Exhibit
Number
  Description
  10.14 * Amendment No. 10 to Credit Agreement, dated as of July 31, 2015, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on August 4, 2015).
        
  10.15 * Facility Increase Agreement, dated October 7, 2015, among NGL Energy Operating LLC, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended December 31, 2015 filed with the SEC on February 9, 2016).
        
  10.16 * Amendment No. 11 to Credit Agreement, dated as of December 23, 2015, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended December 31, 2015 filed with the SEC on February 9, 2016).
        
  10.17 * Amendment No. 12 to Credit Agreement, dated as of February 9, 2016, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.17 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2016 filed with the SEC on February 9, 2016).
        
  10.18 * Common Unit Purchase Agreement, dated November 5, 2013, by and among NGL Energy Partners LP and the purchasers listed on Schedule A thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on December 5, 2013).
        
  10.19 + Letter Agreement among Silverthorne Energy Holdings LLC, Shawn W. Coady and Todd M. Coady dated October 14, 2010 (incorporated by reference to Exhibit 10.11 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  10.20 + NGL Energy Partners LP 2011 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on May 17, 2011).
        
  10.21 + Form of Restricted Unit Award Agreement under the NGL Energy Partners LP 2011 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended June 30, 2012 filed with the SEC on August 14, 2012).
        
  10.22 * NGL Performance Unit Program (incorporated by reference to Exhibit 10.18 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  10.23 * Class A Convertible Preferred Unit and Warrant Purchase Agreement, dated as of April 21, 2016, by and among NGL Energy Partners LP, Highstar NGL Prism/IV-A Interco LLC and Highstar NGL Main Interco LLC (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on April 27, 2016).
 
   

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Exhibit
Number
  Description
  10.24 * Amendment to Class A Convertible Preferred Unit and Warrant Purchase Agreement, dated as of June 23, 2016, by and among NGL Energy Partners LP and Highstar NGL Prism/IV-A Interco LLC, Highstar NGL Main Interco LLC and NGL CIV A, LLC (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  10.25 * Form of Warrant (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  10.26 * Amended and Restated Credit Agreement, dated as of February 14, 2017, by and among NGL Energy Partners LP, NGL Energy Operating LLC, the subsidiary guarantors party thereto, Deutsche Bank Trust Company Americas, Deutsche Bank AG, New York Branch, and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on February 17, 2017).
        
  10.27 * Amendment No. 1 to Amended and Restated Credit Agreement, dated as of March 31, 2017, among the Partnership, NGL Energy Operating LLC, the other subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas, and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on April 5, 2017).
        
  10.28 * Amendment No. 2 to Amended and Restated Credit Agreement, dated as of March 31, 2017, among the Partnership, NGL Energy Operating LLC, the other subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas, and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 5, 2017).
        
  12.1 * Statement regarding computation of rations (incorporated by reference to Exhibit 12.1 to the Quarterly Report on Form 10-K (File No. 001-35172) filed with the SEC on May 26, 2017).
        
  23.1 ** Consent of Grant Thornton LLP
        
  23.2 ** Consent of Andrews Kurth Kenyon LLP (included in Exhibit 5.1)
        
  23.3 ** Consent of Arkan Haile (included in Exhibit 5.2)
        
  23.4 ** Consent of Kurston McMurray (included in Exhibit 5.3)
        
  23.5 ** Consent of Holland & Hart (included in Exhibit 5.4)
        
  23.6 ** Consent of Holland & Hart (included in Exhibit 5.5)
        
  23.7 ** Consent of Norton Rose Fulbright Canada LLP (included in Exhibit 5.6)
        
  24.1 ** Power of Attorney (included in the signature pages attached hereto)
        
  25.1 ** Statement of Eligibility on Form T-1 of U.S. Bank National Association
        
  99.1 ** Letter of Transmittal

*
Incorporated by reference, as indicated.

**
Filed herewith.

+
Management contracts or compensatory plans or arrangements.

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Item 22.    Undertakings.

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants, we have been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by any registrant of expenses incurred or paid by a director, officer or controlling person of a registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

        Each registrant hereby undertakes:

        To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to:

            (a)   include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

            (b)   reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement; notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and

            (c)   to include any material information with respect to the plan of distribution not previously disclosed in this registration statement, or any material change to such information in this registration statement.

        That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

        To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.

        That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, if such registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

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        That, for the purpose of determining liability of such registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of such registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

            (d)   preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424;

            (e)   any free writing prospectus relating to the offering prepared by or on behalf of such registrant or used or referred to by the undersigned registrants;

            (f)    the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or their securities provided by or on behalf of such registrant; and

            (g)   any other communication that is an offer in the offering made by such registrant to the purchaser.

        That, for purposes of determining any liability under the Securities Act of 1933, each filing of a registrant annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

        To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to, and meeting the requirements of, Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.

        To respond to requests for information that are incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.

        To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.

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SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

 
   
   
   
    NGL ENERGY PARTNERS LP

 

 

By:

 

NGL Energy Holdings LLC,
its general partner

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer and Director
(Principal Executive Officer)
  June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)

 

June 29, 2017

/s/ LAWRENCE W. THUILLIER

Lawrence W. Thuillier

 

Chief Accounting Officer
(Principal Accounting Officer)

 

June 29, 2017

/s/ SHAWN W. COADY

Shawn W. Coady

 

Director

 

June 29, 2017

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Signature
 
Title
 
Date

 

 

 

 

 
/s/ JAMES M. COLLINGSWORTH

James M. Collingsworth
  Director   June 29, 2017

/s/ STEPHEN L. CROPPER

Stephen L. Cropper

 

Director

 

June 29, 2017

/s/ BRYAN K. GUDERIAN

Bryan K. Guderian

 

Director

 

June 29, 2017

/s/ JAMES C. KNEALE

James C. Kneale

 

Director

 

June 29, 2017

/s/ VINCENT J. OSTERMAN

Vincent J. Osterman

 

Director

 

June 29, 2017

/s/ JARED PARKER

Jared Parker

 

Director

 

June 29, 2017

/s/ JOHN RAYMOND

John Raymond

 

Director

 

June 29, 2017

/s/ PATRICK WADE

Patrick Wade

 

Director

 

June 29, 2017

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SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

 
   
   
   
    NGL ENERGY FINANCE CORP.

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer and President


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer and Sole Director
(Principal Executive Officer)
  June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and
Chief Financial Officer
(Principal Financial and Accounting Officer)

 

June 29, 2017

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SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    CENTENNIAL GAS LIQUIDS ULC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer and President


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer, President and Sole Director (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017

/s/ JACK L. EBERHARDT

Jack L. Eberhardt

 

Director

 

June 29, 2017

/s/ CHRIS STEVENS

Chris Stevens

 

Director

 

June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    ANTICLINE DISPOSAL, LLC
NGL WATER SOLUTIONS DJ, LLC
NGL WATER SOLUTIONS EAGLE FORD, LLC
NGL WATER SOLUTIONS PERMIAN, LLC
NGL WATER SOLUTIONS MID-CONTINENT, LLC
NGL WATER SOLUTIONS BAKKEN, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    NGL WATER SOLUTIONS, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    CENTENNIAL ENERGY, LLC
NGL SUPPLY TERMINAL COMPANY, LLC
NGL SUPPLY WHOLESALE, LLC
NGL SUPPLY TERMINAL SOLUTION MINING, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    NGL LIQUIDS, LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    HICKSGAS, LLC
NGL-MA, LLC
NGL-MA REAL ESTATE, LLC
NGL-NE REAL ESTATE, LLC
OSTERMAN PROPANE, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    NGL PROPANE, LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    HIGH SIERRA CRUDE OIL & MARKETING, LLC
NGL CRUDE TRANSPORTATION, LLC
NGL CRUDE CUSHING, LLC
NGL CRUDE PIPELINES, LLC
NGL ENERGY LOGISTICS, LLC
NGL ENERGY HOLDINGS II, LLC
NGL SHIPPING AND TRADING, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    NGL CRUDE LOGISTICS, LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    NGL CRUDE TERMINALS, LLC
NGL MARINE, LLC
NGL MILAN INVESTMENTS, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    NGL CRUDE TRANSPORTATION, LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    GRAND MESA PIPELINE, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    NGL CRUDE TERMINALS, LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    NGL CRUDE CANADA HOLDINGS, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    HIGH SIERRA CRUDE OIL & MARKETING, LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    NGL CRUDE CANADA ULC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017

/s/ DON ROBINSON

Don Robinson

 

Director

 

June 29, 2017

/s/ KURSTON P. MCMURRAY

Kurston P. McMurray

 

Director

 

June 29, 2017

/s/ CHRIS STEVENS

Chris Stevens

 

Director

 

June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

 
   
   
   
    NGL CRUDE LOGISTICS, LLC
NGL LIQUIDS, LLC
NGL PROPANE, LLC
NGL WATER SOLUTIONS, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
 
   
   
   
    NGL ENERGY OPERATING LLC,
its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

 
   
   
   
    HIGH SIERRA ENERGY, LP
By: HIGH SIERRA ENERGY GP, LLC,
its general partner

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
 
   
   
   
    HIGH SIERRA ENERGY GP, LLC
By: NGL ENERGY HOLDINGS LLC,
its sole manager

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer and President
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

 
   
   
   
    CHOYA OPERATING, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
 
   
   
   
    NGL WATER SOLUTIONS EAGLE FORD, LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

 
   
   
   
    NGL ENERGY OPERATING LLC
NGL ENERGY EQUIPMENT LLC
TRANSMONTAIGNE LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
 
   
   
   
    NGL ENERGY PARTNERS LP, its sole member
By: NGL ENERGY HOLDINGS LLC,
its general partner

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer and President
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

 
   
   
   
    TRANSMONTAIGNE PRODUCT SERVICES LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
 
   
   
   
    TRANSMONTAIGNE LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer and President
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    TRANSMONTAIGNE SERVICES LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    TRANSMONTAIGNE PRODUCT SERVICES LLC,
its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer and President
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    SAWTOOTH NGL CAVERNS, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    NGL SUPPLY TERMINAL COMPANY, LLC,
its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act, the following registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tulsa, State of Oklahoma, on June 29, 2017.

    OPR, LLC

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        Each person whose signature appears below hereby constitutes and appoints H. Michael Krimbill and Robert W. Karlovich III his or her lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including any and all post-effective amendments, and to file the same with all exhibits thereto and other documents necessary or advisable in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or the substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ H. MICHAEL KRIMBILL

H. Michael Krimbill
  Chief Executive Officer (Principal Executive Officer)   June 29, 2017

/s/ ROBERT W. KARLOVICH III

Robert W. Karlovich III

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

June 29, 2017
    OSTERMAN PROPANE, LLC, its sole member

 

 

By:

 

/s/ H. MICHAEL KRIMBILL

        Name:   H. Michael Krimbill
        Title:   Chief Executive Officer
        Date:   June 29, 2017

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EXHIBIT INDEX

Exhibit
Number
  Description
  1.1 * Purchase Agreement, dated October 19, 2016, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors party thereto and Barclays Capital Inc., as representative of the initial purchasers named therein (incorporated by reference to Exhibit 1.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 24, 2016).
        
  3.1 * Certificate of Limited Partnership of NGL Energy Partners LP (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  3.2 * Certificate of Amendment to Certificate of Limited Partnership of NGL Energy Partners LP (incorporated by reference to Exhibit 3.2 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  3.3 * Fourth Amended and Restated Agreement of Limited Partnership of NGL Energy Partners LP, dated as of June 13, 2017 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 13, 2017).
        
  3.4 * Certificate of Formation of NGL Energy Holdings LLC (incorporated by reference to Exhibit 3.4 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  3.5 * Certificate of Amendment to Certificate of Formation of NGL Energy Holdings LLC (incorporated by reference to Exhibit 3.5 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  3.6 * Third Amended and Restated Limited Liability Company Agreement of NGL Energy Holdings LLC (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35172) filed on February 28, 2013).
        
  3.7 * Amendment No. 1 to Third Amended and Restated Limited Liability Company Agreement of NGL Energy Holdings LLC, dated as of August 6, 2013 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on August 7, 2013).
        
  3.8 * Amendment No. 2 to Third Amended and Restated Limited Liability Company Agreement of NGL Energy Holdings LLC, dated as of June 27, 2014 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 3, 2014).
        
  3.9 * Amendment No. 3 to Third Amended and Restated Limited Liability Company Agreement of NGL Energy Holdings LLC, dated as of June 24, 2016 (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  3.10 * Certificate of Formation of NGL Energy Finance Corp. (incorporated by reference to Exhibit 3.13 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.11 * Bylaws of NGL Energy Finance Corp. (incorporated by reference to Exhibit 3.13 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.12 * Certificate of Formation of NGL Energy Operating LLC (incorporated by reference to Exhibit 3.15 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

Table of Contents

Exhibit
Number
  Description
  3.13 * Certificate of Amendment to Certificate of Formation of NGL Energy Operating LLC (incorporated by reference to Exhibit 3.16 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.14 * Limited Liability Company Agreement of NGL Energy Operating LLC (incorporated by reference to Exhibit 3.17 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.15 * First Amendment to the Limited Liability Company Agreement of NGL Energy Operating LLC (incorporated by reference to Exhibit 3.18 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.16 * Certificate of Formation of NGL Crude Logistics, LLC (incorporated by reference to Exhibit 3.19 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.17 * Certificate of Amendment to Certificate of Formation of NGL Crude Logistics, LLC (incorporated by reference to Exhibit 3.20 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.18 * Certificate of Amendment to Certificate of Formation of NGL Crude Logistics, LLC (incorporated by reference to Exhibit 3.21 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.19 * Third Amended and Restated Limited Liability Company Agreement of NGL Crude Logistics, LLC (incorporated by reference to Exhibit 3.22 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.20 * Certificate of Formation of NGL Propane, LLC (incorporated by reference to Exhibit 3.23 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.21 * Certificate of Amendment of Certificate of Formation NGL Propane, LLC (incorporated by reference to Exhibit 3.24 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.22 * Amended and Restated Limited Liability Company Agreement NGL Propane, LLC (incorporated by reference to Exhibit 3.25 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.23 * Certificate of Formation of NGL Liquids, LLC (incorporated by reference to Exhibit 3.26 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.24 * Certificate of Amendment to Certificate of Formation of NGL Liquids, LLC (incorporated by reference to Exhibit 3.27 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.25 * Second Amended and Restated Limited Liability Company Agreement of NGL Liquids, LLC (incorporated by reference to Exhibit 3.28 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.26 * Articles of Organization of NGL Crude Transportation, LLC (incorporated by reference to Exhibit 3.29 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.27 * Limited Liability Company Agreement of NGL Crude Transportation, LLC (incorporated by reference to Exhibit 3.30 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

Table of Contents

Exhibit
Number
  Description
  3.28 * Articles of Organization of NGL Crude Cushing, LLC (incorporated by reference to Exhibit 3.31 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.29 * Amended Articles of Organization of NGL Crude Cushing, LLC (incorporated by reference to Exhibit 3.32 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.30 * Second Amended and Restated Operating Agreement of NGL Crude Cushing, LLC (incorporated by reference to Exhibit 3.33 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.31 * Articles of Organization of High Sierra Crude Oil & Marketing, LLC (incorporated by reference to Exhibit 3.34 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.32 * Amended and Restated Limited Liability Company Operating Agreement of High Sierra Crude Oil & Marketing, LLC (incorporated by reference to Exhibit 3.35 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.33 * Certificate of Limited Partnership of High Sierra Energy, LP (incorporated by reference to Exhibit 3.36 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.34 ** Third Amended and Restated Agreement of Limited Partnership of High Sierra Energy, LP.
        
  3.35 ** Amendment No. 1 to Third Amended and Restated Agreement of Limited Partnership of High Sierra Energy, LP.
        
  3.36 ** Articles of Organization of NGL Milan Investments, LLC
        
  3.37 ** Limited Liability Company Agreement of NGL Milan Investments, LLC.
        
  3.38 * Articles of Organization of NGL Crude Pipelines, LLC (incorporated by reference to Exhibit 3.43 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.39 * Amended Articles of Organization of NGL Crude Pipelines, LLC (incorporated by reference to Exhibit 3.44 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.40 * Second Amended and Restated Limited Liability Company Agreement of NGL Crude Pipelines, LLC (incorporated by reference to Exhibit 3.45 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.41 * Certificate of Formation of NGL Energy Logistics, LLC (incorporated by reference to Exhibit 3.46 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.42 * Certificate of Amendment of Certificate of Formation of NGL Energy Logistics, LLC (incorporated by reference to Exhibit 3.47 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.43 * Amended and Restated Operating Agreement of NGL Energy Logistics, LLC (incorporated by reference to Exhibit 3.48 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.44 * Certificate of Formation of NGL Energy Holdings II, LLC (incorporated by reference to Exhibit 3.49 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

Table of Contents

Exhibit
Number
  Description
  3.45 * Certificate of Amendment to Certificate of Formation of NGL Energy Holdings II, LLC (incorporated by reference to Exhibit 3.50 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.46 * Certificate of Amendment to Certificate of Formation of NGL Energy Holdings II, LLC (incorporated by reference to Exhibit 3.51 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.47 * Amended and Restated Operating Agreement of NGL Energy Holdings II, LLC (incorporated by reference to Exhibit 3.52 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.48 * Certificate of Formation of NGL Crude Terminals, LLC (incorporated by reference to Exhibit 3.53 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.49 * Certificate of Amendment to Certificate of Formation of NGL Crude Terminals, LLC (incorporated by reference to Exhibit 3.54 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.50 * Amended and Restated Operating Agreement of NGL Crude Terminals, LLC (incorporated by reference to Exhibit 3.55 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.51 * Articles of Organization of NGL Crude Canada Holdings, LLC (incorporated by reference to Exhibit 3.59 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.52 * Articles of Amendment to Articles of Organization of NGL Crude Canada Holdings, LLC (incorporated by reference to Exhibit 3.60 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.53 * Amended and Restated Limited Liability Company Agreement of NGL Crude Canada Holdings, LLC (incorporated by reference to Exhibit 3.61 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.54 * Articles of Organization of NGL Marine, LLC (incorporated by reference to Exhibit 3.62 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.55 * Certificate of Amendment to Articles of Organization of NGL Marine, LLC (incorporated by reference to Exhibit 3.63 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.56 * Second Amended and Restated Limited Liability Company Agreement of NGL Marine, LLC (incorporated by reference to Exhibit 3.64 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.57 * Certificate of Formation of Osterman Propane, LLC (incorporated by reference to Exhibit 3.67 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.58 * Limited Liability Company Agreement of Osterman Propane, LLC (incorporated by reference to Exhibit 3.68 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.59 * Certificate of Formation of Hicksgas, LLC (incorporated by reference to Exhibit 3.69 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

Table of Contents

Exhibit
Number
  Description
  3.60 * First Amended and Restated Limited Liability Company Agreement of Hicksgas, LLC (incorporated by reference to Exhibit 3.70 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.61 * Certificate of Formation of NGL-NE Real Estate, LLC (incorporated by reference to Exhibit 3.71 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.62 * Limited Liability Company Agreement of NGL-NE Real Estate, LLC (incorporated by reference to Exhibit 3.72 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.63 * Certificate of Formation of NGL-MA Real Estate, LLC (incorporated by reference to Exhibit 3.73 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.64 * Limited Liability Company Agreement of NGL-MA Real Estate, LLC (incorporated by reference to Exhibit 3.74 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.65 * Certificate of Formation of NGL-MA, LLC (incorporated by reference to Exhibit 3.75 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.66 * Limited Liability Company Agreement of NGL-MA, LLC (incorporated by reference to Exhibit 3.76 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.67 * Articles of Organization of Centennial Energy, LLC (incorporated by reference to Exhibit 3.77 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.68 * Articles of Amendment to Articles of Organization of Centennial Energy, LLC (incorporated by reference to Exhibit 3.78 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.69 * Amended and Restated Limited Liability Company Agreement of Centennial Energy, LLC (incorporated by reference to Exhibit 3.79 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.70 * Certificate of Incorporation of Centennial Gas Liquids ULC (incorporated by reference to Exhibit 3.80 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.71 * Bylaw No. 1 of Centennial Gas Liquids ULC (incorporated by reference to Exhibit 3.81 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.72 * Certificate of Formation of NGL Shipping and Trading, LLC (incorporated by reference to Exhibit 3.82 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.73 * Certificate of Amendment to Certificate of Formation of NGL Shipping and Trading, LLC (incorporated by reference to Exhibit 3.83 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.74 * Certificate of Amendment to Certificate of Formation of NGL Shipping and Trading, LLC (incorporated by reference to Exhibit 3.84 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

Table of Contents

Exhibit
Number
  Description
  3.75 * Second Amended and Restated Operating Agreement of NGL Shipping and Trading, LLC (incorporated by reference to Exhibit 3.85 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.76 * Articles of Organization of NGL Supply Terminal Company, LLC (incorporated by reference to Exhibit 3.86 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.77 * Limited Liability Company Agreement of NGL Supply Terminal Company, LLC (incorporated by reference to Exhibit 3.87 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.78 * Certificate of Formation of NGL Supply Wholesale, LLC (incorporated by reference to Exhibit 3.88 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.79 * Limited Liability Company Agreement of NGL Supply Wholesale, LLC (incorporated by reference to Exhibit 3.89 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.80 * Articles of Organization of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.90 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.81 * Articles of Amendment to Articles of Organization of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.91 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.82 * Articles of Amendment to Articles of Organization of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.92 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.83 * Articles of Amendment to Articles of Organization of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.93 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.84 * Amended and Restated Limited Liability Company Agreement of NGL Water Solutions, LLC (incorporated by reference to Exhibit 3.94 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.85 * Articles of Organization of AntiCline Disposal, LLC (incorporated by reference to Exhibit 3.95 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.86 * First Amendment to Articles of Organization of AntiCline Disposal, LLC (incorporated by reference to Exhibit 3.96 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.87 * Second Amended and Restated Limited Liability Company Agreement of AntiCline Disposal, LLC (incorporated by reference to Exhibit 3.97 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.88 * Articles of Organization of NGL Water Solutions DJ, LLC (incorporated by reference to Exhibit 3.98 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.89 * Articles of Amendment to Articles of Organization of NGL Water Solutions DJ, LLC (incorporated by reference to Exhibit 3.99 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
 
   

Table of Contents

Exhibit
Number
  Description
  3.90 * Articles of Amendment to Articles of Organization of NGL Water Solutions DJ, LLC (incorporated by reference to Exhibit 3.100 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.91 * Amended and Restated Limited Liability Company Agreement of NGL Water Solutions DJ, LLC (incorporated by reference to Exhibit 3.101 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.92 * Certificate of Formation of NGL Water Solutions Eagle Ford, LLC (incorporated by reference to Exhibit 3.102 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.93 * Certificate of Amendment to Certificate of Formation of NGL Water Solutions Eagle Ford, LLC (incorporated by reference to Exhibit 3.103 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.94 * Amended and Restated Limited Liability Company Agreement of NGL Water Solutions Eagle Ford, LLC (incorporated by reference to Exhibit 3.104 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.95 * Articles of Organization of NGL Water Solutions Permian, LLC (incorporated by reference to Exhibit 3.105 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.96 * Articles of Amendment to Articles of Organization of NGL Water Solutions Permian, LLC (incorporated by reference to Exhibit 3.106 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.97 * Amended and Restated Limited Liability Company Agreement of NGL Water Solutions Permian, LLC (incorporated by reference to Exhibit 3.107 to the Registration Statement on Form S-4 (File No. 333-197341) filed on December 24, 2014).
        
  3.98 ** Certificate of Formation of TransMontaigne LLC, dated December 30, 2014.
        
  3.99 ** First Amended and Restated Limited Liability Company of TransMontaigne LLC, dated January 31, 2017.
        
  3.100 ** Certificate of Formation of TransMontaigne Product Services LLC.
        
  3.101 ** Limited Liability Company Agreement of TransMontaigne Product Services LLC.
        
  3.102 ** Amendment No. 1 to Limited Liability Company Agreement of TransMontaigne Product Services LLC, dated February 1, 2016.
        
  3.103 ** Certificate of Formation of TransMontaigne Services LLC.
        
  3.104 ** Limited Liability Company Agreement of TransMontaigne Services LLC.
        
  3.105 ** Articles of Organization of NGL Water Solutions Bakken, LLC, dated October 17, 2014.
        
  3.106 ** Limited Liability Company Agreement of NGL Water Solutions Bakken, LLC, dated October 17, 2014.
        
  3.107 ** Certificate of Formation of Magnum NGLS, LLC, dated September 13, 2011.
        
  3.108 ** Certificate of Amendment to the Certificate of Formation of Magnum NGLS, LLC, dated March 18, 2015.
        
  3.109 ** First Amended and Restated Limited Liability Company Agreement of Sawtooth NGL Caverns, LLC, dated March 17, 2015.
        
  3.110 ** Certificate of Formation of Grand Mesa Pipeline, LLC, dated July 11, 2014.
 
   

Table of Contents

Exhibit
Number
  Description
  3.111 ** First Amended and Restated Limited Liability Company Agreement of Grand Mesa Pipeline, LLC, dated as of December 2, 2014.
        
  3.112 ** Articles of Organization of Magnum NGLs Solution Mining LLC, dated March 18, 2013.
        
  3.113 ** Certificate of Amendment to Articles of Organization of Magnum NGLs Solution Mining LLC, dated March 17, 2015.
        
  3.114 ** Amendment to the Certificate of Organization of Magnum NGLs Solution Mining LLC.
        
  3.115 ** First Amended and Restated Limited Liability Company Agreement of NGL Supply Terminal Solution Mining, LLC, dated March 17, 2015.
        
  3.116 ** Articles of Organization of NGL Energy Equipment LLC, dated October 6, 2015.
        
  3.117 ** Limited Liability Company Agreement of NGL Energy Equipment LLC, dated October 6, 2015.
        
  3.118 ** Certificate of Formation of Choya Operating, LLC, dated April 2, 2013.
        
  3.119 ** Second Amended and Restated Company Agreement of Choya Operating, LLC, dated September 15, 2016.
        
  3.120 ** Certificate of Formation of OPR, LLC, dated August 19, 2015.
        
  3.121 ** First Amended and Restated Operating Company Agreement of OPR, LLC, dated August 19, 2015.
        
  3.122 ** Certificate of Incorporation of High Sierra Energy Canada ULC, dated January 16, 2013.
        
  3.123 ** By-Law No. 1 of NGL Crude Canada ULC, dated January 23, 2013.
        
  3.124 ** Articles of Organization of NGL Water Solutions Mid-Continent, LLC.
        
  3.125 ** Limited Liability Company Agreement of NGL Water Solutions Mid-Continent, LLC.
        
  4.1 * First Amended and Restated Registration Rights Agreement, dated October 3, 2011, by and among the Partnership, Hicks Oils & Hicksgas, Incorporated, NGL Holdings, Inc., Krim2010, LLC, Infrastructure Capital Management, LLC, Atkinson Investors, LLC, E. Osterman Propane, Inc. and the other holders party thereto (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on October 7, 2011).
        
  4.2 * Amendment No. 1 and Joinder to First Amended and Restated Registration Rights Agreement dated as of November 1, 2011 by and among the Partnership and SemStream (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on November 4, 2011).
        
  4.3 * Amendment No. 2 and Joinder to First Amended and Restated Registration Rights Agreement, dated January 3, 2012, by and among NGL Energy Holdings LLC, Liberty Propane, L.L.C., Pacer-Enviro Propane, L.L.C., Pacer-Pittman Propane, L.L.C., Pacer-Portland Propane, L.L.C., Pacer Propane (Washington), L.L.C., Pacer-Salida Propane, L.L.C. and Pacer-Utah Propane, L.L.C. (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on January 9, 2012).
        
  4.4 * Amendment No. 3 and Joinder to First Amended and Restated Registration Rights Agreement, dated May 1, 2012, by and between NGL Energy Holdings LLC and Downeast Energy Corp. (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on May 4, 2012).
 
   

Table of Contents

Exhibit
Number
  Description
  4.5 * Amendment No. 4 and Joinder to First Amended and Restated Registration Rights Agreement, dated June 19, 2012, by and between NGL Energy Holdings LLC and NGP M&R HS LP LLC (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on June 25, 2012).
        
  4.6 * Amendment No. 5 and Joinder to First Amended and Restated Registration Rights Agreement, dated October 1, 2012, by and between NGL Energy Holdings LLC and Enstone, LLC (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 3, 2012).
        
  4.7 * Amendment No. 6 and Joinder to First Amended and Restated Registration Rights Agreement, dated November 13, 2012, by and between NGL Energy Holdings LLC and Gerald L. Jensen, Thrift Opportunity Holdings,  LP, Jenco Petroleum Corporation, Caritas Trust, Animosus Trust and Nitor Trust (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on November 19, 2012).
        
  4.8 * Amendment No. 7 and Joinder to First Amended and Restated Registration Rights Agreement, dated as of August 1, 2013, by and among NGL Energy Holdings LLC, Oilfield Water Lines, LP and Terry G. Bailey (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on August 7, 2013).
        
  4.9 * Amendment No. 8 and Joinder to First Amended and Restated Registration Rights Agreement, dated as of February 17, 2015, by and among NGL Energy Holdings LLC and Magnum NGL Holdco LLC (incorporated by reference to Exhibit 4.9 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.10 * Amendment No. 9 and Joinder to First Amended and Restated Registration Rights Agreement, dated as of February 25, 2016, by and among NGL Energy Holdings LLC and Magnum NGL Holdco LLC (incorporated by reference to Exhibit 4.10 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2016 filed with the SEC on May 31, 2015).
        
  4.11 * Indenture, dated as of October 16, 2013, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 16, 2013).
        
  4.12 * Forms of 6.875% Senior Notes due 2021 (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 16, 2013).
        
  4.13 * First Supplemental Indenture, dated as of December 2, 2013, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.19 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2014 filed with the SEC on May 30, 2014).
        
  4.14 * Second Supplemental Indenture, dated as of April 22, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiary party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.20 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2014 filed with the SEC on May 30, 2014).
 
   

Table of Contents

Exhibit
Number
  Description
  4.15 * Third Supplemental Indenture, dated as of July 31, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiary party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.6 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2014 filed with the SEC on November 10, 2014).
        
  4.16 * Fourth Supplemental Indenture, dated as of December 1, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.25 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.17 * Fifth Supplemental Indenture, dated as of February 17, 2015, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.26 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.18 * Sixth Supplemental Indenture, dated as of August 21, 2015, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2015 filed with the SEC on November 9, 2015).
        
  4.19 * Registration Rights Agreement, dated as of October 16, 2013, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the Guarantors listed therein on Exhibit A and RBC Capital Markets, LLC as representative of the several initial purchasers (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 16, 2013).
        
  4.20 * Registration Rights Agreement, dated December 2, 2013, by and among NGL Energy Partners LP and the purchasers set forth on Schedule A thereto (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on December 5, 2013).
        
  4.21 * Indenture, dated as of July 9, 2014, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 9, 2014).
        
  4.22 * Forms of 5.125% Senior Notes due 2019 (incorporated by reference and included as Exhibits A1 and A2 to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 9, 2014).
        
  4.23 * Registration Rights Agreement, dated July 9, 2014, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the Guarantors listed therein on Exhibit A and RBS Securities Inc. as representative of the several initial purchasers (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 9, 2014).
        
  4.24 * First Supplemental Indenture, dated as of July 31, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.5 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2014 filed with the SEC on November 10, 2014).
 
   

Table of Contents

Exhibit
Number
  Description
  4.25 * Second Supplemental Indenture, dated as of December 1, 2014, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.32 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.26 * Third Supplemental Indenture, dated as of February 17, 2015, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.33 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  4.27 * Fourth Supplemental Indenture, dated as of August 21, 2015, among NGL Energy Partners LP, NGL Energy Finance Corp., the Guaranteeing Subsidiaries party thereto, the Guarantors party thereto and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.2 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2015 filed with the SEC on November 9, 2015).
        
  4.28 * Registration Rights Agreement, dated May 11, 2016, by and among NGL Energy Partners LP and Highstar NGL Prism/IV-A Interco LLC and Highstar NGL Main Interco LLC (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  4.29 * Amendment to Registration Rights Agreement, dated June 24, 2016, by and among NGL Energy Partners LP and Highstar NGL Prism/IV-A Interco LLC, Highstar NGL Main Interco LLC (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  4.30 * Limited Consent and Amendment No. 11 to Note Purchase Agreement, dated as of September 30, 2016, among the Partnership and the purchasers named therein (incorporated by reference to Exhibit 4.1 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended September 30, 2016 filed with the SEC on November 7, 2016).
        
  4.31 * Indenture, dated as of October 24, 2016, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on October 24, 2016).
        
  4.32 * Form of 7.5% Senior Notes due 2023 (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-35172) filed on October 24, 2016).
        
  4.33 * Registration Rights Agreement, dated as of October 24, 2016, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors listed therein on Exhibit A and Barclays Capital Inc. as representative of the several initial purchasers (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 24, 2016).
        
  4.34 * Indenture, dated as of February 22, 2017, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors party thereto and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed on February 22, 2017).
        
  4.35 * Forms of 6.125% Senior Notes due 2025 (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-35172) filed on February 22, 2017).
 
   

Table of Contents

Exhibit
Number
  Description
  4.36 * Registration Rights Agreement, dated as of February 22, 2017, by and among NGL Energy Partners LP, NGL Energy Finance Corp., the guarantors listed therein on Exhibit A and RBC Capital Markets, LLC and Deutsche Bank Securities Inc. as representative of the several initial purchasers (incorporated by reference to Exhibit 4.3 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on February 22, 2017).
        
  4.37 * Amended and Restated Note Purchase Agreement, dated March 31, 2017 and effective as of December 31, 2016, by and among the Partnership and the purchasers named therein (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on April 4, 2017).
        
  5.1 ** Opinion of Andrews Kurth Kenyon LLP.
        
  5.2 ** Opinion of Arkan Haile.
        
  5.3 ** Opinion of Kurston McMurray.
        
  5.4 ** Opinion of Holland & Hart LLP.
        
  5.5 ** Opinion of Holland & Hart LLP.
        
  5.6 ** Opinion of Norton Rose Fulbright Canada LLP.
        
  10.1 * Credit Agreement, dated as of June 19, 2012, among NGL Energy Partners LP, the NGL subsidiary borrowers, the lenders party thereto and Deutsche Bank Trust Company Americas, as administrative agent (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on June 25, 2012).
        
  10.2 * Facility Increase Agreement, dated as of November 1, 2012, among NGL Energy Operating LLC, NGL Energy Partners LP, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on November 7, 2012).
        
  10.3 * Amendment No. 1 to Credit Agreement, dated as of January 15, 2013, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on January 18, 2013).
        
  10.4 * Amendment No. 2 to Credit Agreement, dated as of May 8, 2013, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No 001-35172) filed on May 9, 2013).
        
  10.5 * Amendment No. 3 to Credit Agreement, dated September 30, 2013, among NGL Energy Partners LP, NGL Energy Operating LLC, each subsidiary of NGL identified as a "Borrower" therein, Deutsche Bank AG, New York Branch, as technical agent, Deutsche Bank Trust Company Americas, as administrative agent and collateral agent and each financial institution identified as a "Lender" or "Issuing Bank" therein (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on October 3, 2013).
        
  10.6 * Amendment No. 4 to Credit Agreement, dated as of November 5, 2013, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on November 8, 2013).

Table of Contents

Exhibit
Number
  Description
  10.7 * Amendment No. 5 to Credit Agreement, dated as of December 23, 2013, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank and Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on December 30, 2013).
        
  10.8 * Facility Increase Agreement, dated as of December 30, 2013, among NGL Energy Operating LLC, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on January 3, 2014).
        
  10.9 * Amendment No. 6 to Credit Agreement, dated as of June 12, 2014, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on June 16, 2014).
        
  10.10 * Amendment No. 7 to Credit Agreement, dated as of June 27, 2014, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on July 3, 2014).
        
  10.11 * Facility Increase Agreement, dated December 1, 2014, among NGL Energy Operating LLC, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on December 1, 2014).
        
  10.12 * Amendment No. 8 to Credit Agreement, dated as of December 19, 2014 and effective as of December 26, 2014, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on January 2, 2015).
        
  10.13 * Amendment No. 9 to Credit Agreement, dated as of May 1, 2015, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.13 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  10.14 * Amendment No. 10 to Credit Agreement, dated as of July 31, 2015, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on August 4, 2015).
        
  10.15 * Facility Increase Agreement, dated October 7, 2015, among NGL Energy Operating LLC, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended December 31, 2015 filed with the SEC on February 9, 2016).
 
   

Table of Contents

Exhibit
Number
  Description
  10.16 * Amendment No. 11 to Credit Agreement, dated as of December 23, 2015, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended December 31, 2015 filed with the SEC on February 9, 2016).
        
  10.17 * Amendment No. 12 to Credit Agreement, dated as of February 9, 2016, among NGL Energy Operating LLC, the Partnership, the subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas and the other financial institutions party thereto (incorporated by reference to Exhibit 10.17 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2016 filed with the SEC on February 9, 2016).
        
  10.18 * Common Unit Purchase Agreement, dated November 5, 2013, by and among NGL Energy Partners LP and the purchasers listed on Schedule A thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed with the SEC on December 5, 2013).
        
  10.19 + Letter Agreement among Silverthorne Energy Holdings LLC, Shawn W. Coady and Todd M. Coady dated October 14, 2010 (incorporated by reference to Exhibit 10.11 to the Registration Statement on Form S-1 (File No. 333-172186) filed on April 15, 2011).
        
  10.20 + NGL Energy Partners LP 2011 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on May 17, 2011).
        
  10.21 + Form of Restricted Unit Award Agreement under the NGL Energy Partners LP 2011 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q (File No. 001-35172) for the quarter ended June 30, 2012 filed with the SEC on August 14, 2012).
        
  10.22 * NGL Performance Unit Program (incorporated by reference to Exhibit 10.18 to the Annual Report on Form 10-K (File No. 001-35172) for the year ended March 31, 2015 filed with the SEC on June 1, 2015).
        
  10.23 * Class A Convertible Preferred Unit and Warrant Purchase Agreement, dated as of April 21, 2016, by and among NGL Energy Partners LP, Highstar NGL Prism/IV-A Interco LLC and Highstar NGL Main Interco LLC (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on April 27, 2016).
        
  10.24 * Amendment to Class A Convertible Preferred Unit and Warrant Purchase Agreement, dated as of June 23, 2016, by and among NGL Energy Partners LP and Highstar NGL Prism/IV-A Interco LLC, Highstar NGL Main Interco LLC and NGL CIV A, LLC (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  10.25 * Form of Warrant (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K (File No. 001-35172) filed on June 28, 2016).
        
  10.26 * Amended and Restated Credit Agreement, dated as of February 14, 2017, by and among NGL Energy Partners LP, NGL Energy Operating LLC, the subsidiary guarantors party thereto, Deutsche Bank Trust Company Americas, Deutsche Bank AG, New York Branch, and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on February 17, 2017).
 
   

Table of Contents

Exhibit
Number
  Description
  10.27 * Amendment No. 1 to Amended and Restated Credit Agreement, dated as of March 31, 2017, among the Partnership, NGL Energy Operating LLC, the other subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas, and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on April 5, 2017).
        
  10.28 * Amendment No. 2 to Amended and Restated Credit Agreement, dated as of March 31, 2017, among the Partnership, NGL Energy Operating LLC, the other subsidiary borrowers party thereto, Deutsche Bank Trust Company Americas, and the other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No. 001-35172) filed on June 5, 2017).
  12.1 * Statement regarding computation of rations (incorporated by reference to Exhibit 12.1 to the Quarterly Report on Form 10-K (File No. 001-35172) filed with the SEC on May 26, 2017).
        
  23.1 ** Consent of Grant Thornton LLP
        
  23.2 ** Consent of Andrews Kurth Kenyon LLP (included in Exhibit 5.1)
        
  23.3 ** Consent of Arkan Haile (included in Exhibit 5.2)
        
  23.4 ** Consent of Kurston McMurray (included in Exhibit 5.3)
        
  23.5 ** Consent of Holland & Hart (included in Exhibit 5.4)
        
  23.6 ** Consent of Holland & Hart (included in Exhibit 5.5)
        
  23.7 ** Consent of Norton Rose Fulbright Canada LLP (included in Exhibit 5.6)
        
  24.1 ** Power of Attorney (included in the signature pages attached hereto)
        
  25.1 ** Statement of Eligibility on Form T-1 of U.S. Bank National Association
        
  99.1 ** Letter of Transmittal

*
Incorporated by reference, as indicated.

**
Filed herewith.

+
Management contracts or compensatory plans or arrangements.



Exhibit 3.34

 

THIRD AMENDED AND RESTATED

 

AGREEMENT OF LIMITED

PARTNERSHIP

 

OF

 

HIGH SIERRA ENERGY, LP

 



 

Table of Contents

 

 

 

Page

 

 

 

ARTICLE I DEFINITIONS

1

Section 1.1

Definitions

1

Section 1.2

Construction

16

 

 

 

ARTICLE II ORGANIZATION

16

Section 2.1

Formation

16

Section 2.2

Name

16

Section 2.3

Registered Office; Registered Agent; Principal Office; Other Offices

16

Section 2.4

Purpose and Business

17

Section 2.5

Powers

17

Section 2.6

Power of Attorney

17

Section 2.7

Term

19

Section 2.8

Title to Partnership Assets

19

 

 

 

ARTICLE III RIGHTS OF LIMITED PARTNERS

19

Section 3.1

Limitation of Liability

19

Section 3.2

Management of Business

19

Section 3.3

Rights of Limited Partners

20

 

 

 

ARTICLE IV CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS

20

Section 4.1

Certificates

20

Section 4.2

Record Holders

21

Section 4.3

Transfer Generally

21

Section 4.4

Registration and Transfer of Limited Partner Interests

21

Section 4 5

Transfer of the General Partner’s General Partner Interest

22

Section 4.6

Restrictions on Transfers

22

Section 4.7

Redemption Rights of Institutional Investors

23

 

 

 

ARTICLE V CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS

24

Section 5.1

Organizational Contributions

24

Section 5.2

Interest and Withdrawal

24

Section 5.3

Capital Accounts

24

Section 5.4

Issuances of Additional Partnership Securities

26

Section 5.5

Conversion of Subordinated Units

27

Section 5.6

Fully Paid and Non-Assessable Nature of Limited Partner Interests

28

 

 

ARTICLE VI ALLOCATIONS AND DISTRIBUTIONS

29

Section 6.1

Allocations for Capital Account Purposes

29

Section 6.2

Allocations for Tax Purposes

36

Section 6.3

Requirement and Characterization of Distributions; Distributions to Record Holders; Unitholders for Less than the Period of Distribution

38

 



 

Section 6.4

Distributions of Available Cash from Operating Surplus

39

Section 6.5

Distributions of Available Cash from Capital Surplus

40

Section 6.6

Adjustment of Minimum Quarterly Distribution and Target Distribution Levels

41

Section 6.7

Special Provisions Relating to the Holders of Subordinated Units

41

Section 6.8

Special Provisions Relating to the Holders of Incentive Distribution Rights

42

 

 

 

ARTICLE VII MANAGEMENT AND OPERATION OF BUSINESS

43

Section 7.1

Management

43

Section 7.2

Certificate of Limited Partnership

45

Section 7.3

Restrictions on the General Partner’s Authority

45

Section 7.4

Reimbursement of the General Partner

46

Section 7.5

Outside Activities

47

Section 7.6

Loans from the General Partner; Loans or Contributions from the Partnership; Contracts with Affiliates; Certain Restrictions on the General Partner

47

Section 7.7

Indemnification

48

Section 7.8

Liability of Indemnitees

50

Section 7.9

Other Matters Concerning the General Partner

51

Section 7.10

Reliance by Third Parties

51

 

 

 

ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS

52

Section 8.1

Records and Accounting

52

Section 8.2

Fiscal Year

52

Section 8.3

Reports

52

 

 

 

ARTICLE IX TAX MATTERS

52

Section 9.1

Tax Returns and Information

52

Section 9.2

Tax Elections

53

Section 9.3

Tax Controversies

53

Section 9.4

Withholding

53

 

 

 

ARTICLE X ADMISSION OF PARTNERS

54

Section 10.1

Admission of Initial Limited Partners

54

Section 10.2

Admission of Substituted Limited Partner

54

Section 10.3

Admission of Successor General Partner

54

Section 10.4

Admission of Additional Limited Partners

54

Section 10.5

Amendment of Agreement and Certificate of Limited Partnership

55

 

 

 

ARTICLE XI WITHDRAWAL OR REMOVAL OF PARTNERS

55

Section 11.1

Withdrawal of the General Partner

55

Section 11.2

Removal of the General Partner

56

Section 11.3

Interest of Departing Partner and Successor General Partner

57

Section 11.4

Termination of Subordination Period, Conversion of Subordinated Units and Extinguishment of Cumulative Common Unit Arrearages

58

Section 11.5

Withdrawal of Limited Partners

58

 

ii



 

ARTICLE XII DISSOLUTION AND LIQUIDATION

59

Section 12.1

Dissolution

59

Section 12.2

Continuation of the Business of the Partnership After Dissolution

59

Section 12.3

Liquidator

60

Section 12.4

Liquidation

60

Section 12.5

Cancellation of Certificate of Limited Partnership

61

Section 12.6

Return of Contributions

61

Section 12.7

Waiver of Partition

61

Section 12.8

Capital Account Restoration

62

 

 

 

ARTICLE XIII AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE

62

Section 13.1

Amendment to be Adopted Solely by the General Partner

62

Section 13.2

Amendment Procedures

63

Section 13.3

Amendment Requirements

63

Section 13.4

Special Meetings

64

Section 13.5

Notice of a Meeting

64

Section 13.6

Record Date

65

Section 13.7

Adjournment

65

Section 13.8

Waiver of Notice; Approval of Meeting; Approval of Minutes

65

Section 13.9

Quorum

65

Section 13.10

Conduct of a Meeting

66

Section 13.11

Action Without a Meeting

66

Section 13.12

Voting and Other Rights

67

 

 

 

ARTICLE XIV GENERAL PROVISIONS

67

Section 14.1

Addresses and Notices

67

Section 14.2

Further Action

68

Section 14.3

Binding Effect

68

Section 14.4

Integration

68

Section 14.5

Creditors

68

Section 14.6

Waiver

68

Section 14.7

Counterparts

69

Section 14.8

Applicable Law

69

Section 14.9

Invalidity of Provisions

69

Section 14.10

Consent of Partners

69

 

iii


 

THIRD AMENDED AND RESTATED

 

AGREEMENT OF LIMITED PARTNERSHIP

 

OF

 

HIGH SIERRA ENERGY, LP

 

THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF HIGH SIERRA ENERGY, LP dated effective as of April 9, 2007, (“ Effective Date” ) is executed and entered into by High Sierra Energy GP, LLC, a Colorado limited liability company, on behalf of itself as the General Partner and each of the Limited Partners of the Company as of the Effective Date pursuant to the powers of attorney previously granted to the General Partner by the Limited Partners and in conformity with the other rights and powers conferred upon the General Partner under the Company’s Second Amended and Restated Agreement of Limited Partnership, and any other Persons who become Partners in the Partnership or parties hereto as provided herein. In consideration of the covenants, conditions and agreements contained herein, the parties hereto hereby agree 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 Partnership Group Member acquires (through an asset acquisition, merger, stock acquisition or other form of investment) control over all or a 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 of this Agreement or otherwise to the extent they exceed offsetting increases to such Partner’s Capital Account that are reasonably expected to occur during (or prior to) the year in which such distributions are reasonably expected to be made (other than increases as a result of a minimum gain chargeback pursuant to Section 6.1(d)(i) or 6.1(d)(ii)). The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation Section 1.704-l(b)(2)(ii)(d) and shall be interpreted consistently therewith. The “Adjusted Capital Account” of a Partner in respect of a General Partner Interest, a Common Unit, a Subordinated Unit or an Incentive Distribution Right or any other specified interest in the Partnership shall be the amount which such Adjusted Capital Account would be if such General Partner Interest, Common Unit, Subordinated Unit, Incentive Distribution Right or other interest in the Partnership were the only interest in the Partnership held by such Partner from and after the date on which such General Partner Interest, Common Unit, Subordinated Unit, Incentive Distribution Right or other interest was first issued.

 

Adjusted Operating Surplus ” means, with respect to any period, Operating Surplus generated during such period (a) less (i) any net increase in Working Capital Borrowings with respect to such period and (ii) any net reduction in cash reserves for Operating Expenditures with respect to such period not relating to an Operating Expenditure made with respect to such period,

 

2



 

and (b) plus (i) any net decrease in Working Capital Borrowings with respect to such period, and (ii) any net increase in cash reserves for Operating Expenditures with respect to such period required by any debt instrument for the repayment of principal, interest or premium. Adjusted Operating Surplus does not include that portion of Operating Surplus included in clause (a)(i) of the definition of Operating Surplus.

 

Adjusted Property ” means any property the Carrying Value of which has been adjusted pursuant to Section 5.3(d)(i) or 5.3(d)(ii).

 

Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

 

Aggregate Remaining Net Positive Adjustments ” means, as of the end of any taxable period, the sum of the Remaining Net Positive Adjustments of all the Partners.

 

Agreed Allocation ” means any allocation, other than a Required Allocation, of an item of income, gain, loss or deduction pursuant to the provisions of Section 6.1, including, without limitation, a Curative Allocation (if appropriate to the context in which the term “Agreed Allocation” is used).

 

Agreed Value” of any Contributed Property means the fair market value of such property or other consideration at the time of contribution as determined by the General Partner using such reasonable method of valuation as it may adopt. The General Partner shall, in its discretion, use such method as it deems reasonable and appropriate to allocate the aggregate Agreed Value of Contributed Properties contributed to the Partnership in a single or integrated transaction among each separate property on a basis proportional to the fair market value of each Contributed Property.

 

Agreement ” means this Third Amended and Restated Agreement of Limited Partnership of High Sierra Energy, LP, as it may be amended, supplemented or restated from time to time.

 

Assignee ” means a Person to whom one or more Limited Partner Interests have been transferred in a manner permitted under this Agreement and who has executed and delivered a Transfer Application as required by this Agreement, but who has not been admitted as a Substituted Limited Partner.

 

Available Cash ” means, with respect to any Quarter ending prior to the Liquidation Date:

 

(a)           the sum of (i) all cash and cash equivalents of the Partnership Group on hand at the end of such Quarter, and (ii) all additional cash and cash equivalents of the Partnership Group on hand on the date of determination of Available Cash with respect to such Quarter resulting from Working Capital Borrowings made subsequent to the end of such Quarter, less

 

3



 

(b)           the amount of any cash reserves that are necessary or appropriate in the reasonable discretion of the General Partner to (i) provide for the proper conduct of the business of the Partnership Group (including reserves for future capital expenditures and for anticipated future credit needs of the Partnership Group) subsequent to such Quarter, (ii) comply with applicable law or any loan agreement, security agreement, mortgage, debt instrument or other agreement or obligation to which any Partnership Group Member is a party or by which it is bound or its assets are subject or (iii) provide funds for distributions under Section 6.4 or 6.5 in respect of any one or more of the next four Quarters; provided, however, that the General Partner may not establish cash reserves pursuant to (iii) above if the effect of such reserves would be that the Partnership is unable to distribute the Minimum Quarterly Distribution on all Common Units, plus any Cumulative Common Unit Arrearage on all Common Units, with respect to such Quarter; and, provided further, that disbursements made by a Partnership Group Member or cash reserves established, increased or reduced after the end of such Quarter but on or before the date of determination of Available Cash with respect to such Quarter shall be deemed to have been made, established, increased or reduced, for purposes of determining Available Cash, within such Quarter if the General Partner so determines.

 

Notwithstanding the foregoing, “ Available Cash ” with respect to the Quarter in which the Liquidation Date occurs and any subsequent Quarter shall equal zero.

 

Book Basis Derivative Items ” means any item of income, deduction, gain or loss included in the determination of Net Income or Net Loss that is computed with reference to the Carrying Value of an Adjusted Property (e.g., depreciation, depletion, or gain or loss with respect to an Adjusted Property).

 

Book-Down Event ” means an event which triggers a negative adjustment to the Capital Accounts of the Partners pursuant to Section 5.3.

 

Book-Tax Disparity ” means with respect to any item of Contributed Property or Adjusted Property, as of the date of any determination, the difference between the Carrying Value of such Contributed Property or Adjusted Property and the adjusted basis thereof for federal income tax purposes as of such date. A Partner’s share of the Partnership’s Book-Tax Disparities in all of its Contributed Property and Adjusted Property will be reflected by the difference between such Partner’s Capital Account balance as maintained pursuant to Section 5.3 and the hypothetical balance of such Partner’s Capital Account computed as if it had been maintained strictly in accordance with federal income tax accounting principles.

 

Book-Up Event ” means an event which triggers a positive adjustment to the Capital Accounts of the Partners pursuant to Section 5.3.

 

Business Day ” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of Colorado shall not be regarded as a Business Day.

 

Capital Account ” means the capital account maintained for a Partner pursuant to Section 5.3. The “ Capital Account ” of a Partner in respect of a General Partner Interest, a Common Unit, a Subordinated Unit, an Incentive Distribution Right or any other Partnership Interest shall

 

4



 

be the amount which such Capital Account would be if such General Partner Interest, Common Unit, Subordinated Unit, Incentive Distribution Right or other Partnership Interest were the only interest in the Partnership held by such Partner from and after the date on which such General Partner Interest, Common Unit, Subordinated Unit, Incentive Distribution Right or other Partnership Interest was first issued.

 

Capital Contribution ” means any cash, cash equivalents or the Net Agreed Value of Contributed Property that a Partner contributes to the Partnership pursuant to this Agreement.

 

Capital Improvement ” means any (a) addition or improvement to the capital assets owned by any Partnership Group Member or (b) acquisition of existing, or the construction of new, capital assets (including, without limitation, natural gas processing plants and natural gas liquids pipelines, fractionation plants and storage and distribution facilities and related assets), in each case if such addition, improvement, acquisition or construction is made to increase the operating capacity or revenues of the Partnership Group from the operating capacity or revenues of the Partnership Group existing immediately prior to such addition, improvement, acquisition or construction.

 

Capital Surplus ” has the meaning assigned to such term in Section 6.3(a).

 

Carrying Value ” means (a) with respect to a Contributed Property, the Agreed Value of such property reduced (but not below zero) by all depreciation, amortization and cost recovery deductions charged to the Partners’ and Assignees’ Capital Accounts in respect of such Contributed Property, and (b) with respect to any other Partnership property, the adjusted basis of such property for federal income tax purposes, all as of the time of determination. The Carrying Value of any property shall be adjusted from time to time in accordance with Section 5.3(d) and to reflect changes, additions or other adjustments to the Carrying Value for dispositions and acquisitions of Partnership properties, as deemed appropriate by the General Partner.

 

Cause ” means a court of competent jurisdiction has entered a final, non-appealable judgment finding the General Partner liable for actual fraud, gross negligence or willful or wanton misconduct in its capacity as a general partner of the Partnership.

 

Centennial Acquisition ” means the acquisition by the Partnership of all of the outstanding and issued membership interests of Centennial Gas Liquids, L.L.C. (“Centennial”).

 

Certificate ” means a certificate evidencing Limited Partner Interests and, in the case of Common Units, shall be substantially in the form of Exhibit A to this Agreement.

 

Certificate of Limited Partnership ” means the Certificate of Limited Partnership of the Partnership filed with the Secretary of State of the State of Delaware as referenced in Section 2.1, as such Certificate of Limited Partnership may be amended, supplemented or restated from time to time.

 

Change of Control ” shall mean (a) a dissolution or liquidation of a Person, or (b) a consolidation or merger of a Person with or into any other corporation or other entity, or any other reorganization, in which the owners of the affected Person immediately prior to such

 

5



 

consolidation, merger or reorganization, own less than 50% of the affected Person’s voting power immediately after such consolidation, merger or reorganization.

 

Citizenship Certification ” means a properly completed certificate in such form as may be specified by the General Partner by which an Assignee or a Limited Partner certifies that he (and if he is a nominee holding for the account of another Person, that to the best of his knowledge such other Person) is an Eligible Citizen.

 

Code ” means the Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of successor law.

 

Common Unit ” means a Partnership Security representing a fractional part of the Partnership Interests of all Limited Partners and Assignees, and having the rights and obligations specified with respect to Common Units in this Agreement. The term “Common Unit” does not refer to a Subordinated Unit prior to its conversion into a Common Unit pursuant to the terms hereof.

 

Common Unit Arrearage ” means, with respect to any Common Unit, whenever issued, as to any Quarter within the Subordination Period, the excess, if any, of (a) the Minimum Quarterly Distribution with respect to a Common Unit in respect of such Quarter over (b) the sum of all Available Cash distributed with respect to a Common Unit in respect of such Quarter pursuant to Section 6.4(a)(i).

 

Contributed Property ” means each property or other asset, in such form as may be permitted by the Delaware Act, but excluding cash, contributed to the Partnership.

 

Cumulative Common Unit Arrearage ” means, with respect to any Common Unit, whenever issued, and as of the end of any Quarter, the excess, if any, of (a) the sum resulting from adding together the Common Unit Arrearage as to an Initial Common Unit for each of the Quarters within the Subordination Period ending on or before the last day of such Quarter over (b) the sum of any distributions theretofore made pursuant to Section 6.4(a)(ii) and the second sentence of Section 6.5 with respect to an Initial Common Unit (including any distributions to be made in respect of the last of such Quarters).

 

Curative Allocation ” means any allocation of an item of income, gain, deduction, loss or credit pursuant to the provisions of Section 6.1(d)(xi).

 

Delaware Act ” means the Delaware Revised Uniform Limited Partnership Act, 6 Del C. Section 17-101, et seq., as amended, supplemented or restated from time to time, and any successor to such statute.

 

Departing Partner ” means a former General Partner from and after the effective date of any withdrawal or removal of such former General Partner pursuant to Section 11.1 or 11.2.

 

Economic Risk of Loss ” has the meaning set forth in Treasury Regulation Section 1.752-2(a).

 

6



 

Eligible Citizen” means a Person qualified to own interests in real property in jurisdictions in which any Partnership Group Member does business or proposes to do business from time to time, and whose status as a Limited Partner or Assignee does not or would not subject such Partnership Group Member to a significant risk of cancellation or forfeiture of any of its properties or any interest therein.

 

Event of Withdrawal ” has the meaning assigned to such term in Section 11.1 (a).

 

Final Subordinated Units ” has the meaning assigned to such term in Section 6.1(d)(x).

 

First Liquidation Target Amount ” has the meaning assigned to such term in Section 6.1(c)(i)(D).

 

First Target Distribution ” means $0.495 per Unit per Quarter (or, with respect to the period commencing on the Effective Date and ending at the end of the Quarter in which the Effective Date occurs, it means the product of $0.495 multiplied by a fraction of which the numerator is the number of days in such period, and of which the denominator is the number of days in that Quarter), subject to adjustment in accordance with Section 6.6.

 

General Partner ” means High Sierra Energy GP, LLC and its successors and permitted assigns as general partner of the Partnership.

 

General Partner Interest ” means the ownership interest of the General Partner in the Partnership (in its capacity as a general partner without reference to any Limited Partner Interest held by it).

 

Incentive Distribution Right ” means a non-voting Limited Partner Interest issued to the General Partner, which Partnership Interest will confer upon the holder thereof only the rights and obligations specifically provided in this Agreement with respect to Incentive Distribution Rights (and no other rights otherwise available to or other obligations of a holder of a Partnership Interest). Notwithstanding anything in this Agreement to the contrary, the holder of an Incentive Distribution Right shall not be entitled to vote such Incentive Distribution Right on any Partnership matter except as may otherwise be required by law.

 

Incentive Distributions ” means any amount of cash distributed to the holders of the Incentive Distribution Rights pursuant to Sections 6.4(a)(v), (vi) and (vii) and 6.4(b)(iii), (iv) and (v).

 

Indemnitee ” means (a) the General Partner, (b) any Departing Partner, (c) any Person who is or was an Affiliate of the General Partner or any Departing Partner, (d) any Person who is or was a member, partner, officer, director, employee, agent or trustee of any Partnership Group Member, the General Partner or any Departing Partner or any Affiliate of any Partnership Group Member, the General Partner or any Departing Partner, and (e) any Person who is or was serving at the request of the General Partner or any Departing Partner or any Affiliate of the General Partner or any Departing Partner as an officer, director, employee, member, partner, agent, fiduciary or trustee of another Person; provided, that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.

 

7



 

Initial Common Unit ” means a Common Unit issued as of the Effective Date.

 

Initial Limited Partners ” means Kellershan, LLC and Impact Development, LLC, together with such other Persons admitted as Initial Limited Partners by the General Partner, in each case upon being admitted to the Partnership in accordance with Sections 5.1 and 10.1.

 

Institutional Investors ” means MidStates Capital, L.P., Kansas Venture Capital, Inc., and Lewis and Clark Holdings, Inc.

 

Interim Capital Transactions ” means the following transactions if they occur prior to the Liquidation Date: (a) borrowings, refinancings or refundings of indebtedness and sales of debt securities (other than Working Capital Borrowings and other than for items purchased on open account in the ordinary course of business) by any Partnership Group Member; (b) sales of equity interests by any Partnership Group Member; and (c) sales or other voluntary or involuntary dispositions of any assets of any Partnership Group Member other than (i) sales or other dispositions of inventory, accounts receivable and other assets in the ordinary course of business, and (ii) sales or other dispositions of assets as part of normal retirements or replacements.

 

Limited Partner ” means, unless the context otherwise requires, (a) each Initial Limited Partner, each Substituted Limited Partner, each Additional Limited Partner and any Departing Partner upon the change of its status from General Partner to Limited Partner pursuant to Section 11.3 or (b) solely for purposes of Articles V, VI, VII and IX, each Assignee; provided, however, that when the term “Limited Partner” is used herein in the context of any vote or other approval, including without limitation Articles XIII and XIV, such term shall not, solely for such purpose, include any holder of an Incentive Distribution Right except as may otherwise be required by law.

 

Limited Partner Interest ” means the ownership interest of a Limited Partner or Assignee in the Partnership, which may be evidenced by Common Units, Subordinated Units, Incentive Distribution Rights or other Partnership Securities or a combination thereof or interest therein, and includes any and all benefits to which such Limited Partner or Assignee is entitled as provided in this Agreement.

 

Liquidation Date ” means (a) in the case of an event giving rise to the dissolution of the Partnership of the type described in clauses (a) and (b) of the first sentence of Section 12.2, the date on which the applicable time period during which the holders of Outstanding Units have the right to elect to reconstitute the Partnership and continue its business has expired without such an election being made, and (b) in the case of any other event giving rise to the dissolution of the Partnership, the date on which such event occurs.

 

Liquidator ” means one or more Persons selected by the General Partner to perform the functions described in Section 12.3 as liquidating trustee of the Partnership within the meaning of the Delaware Act.

 

Minimum Quarterly Distribution ” or “ MQD ” means $0.45 per Unit per Quarter (or, with respect to the period commencing on the Effective Date and ending at the end of the Quarter in which the Effective Date occurs, it means the product of $0.45 multiplied by a fraction of which

 

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the numerator is the number of days in such period, and of which the denominator is the number of days in that Quarter), subject to adjustment in accordance with Section 6.6.

 

Net Agreed Value ” means, (a) in the case of any Contributed Property, the Agreed Value of such property reduced by any liabilities either assumed by the Partnership upon such contribution or to which such property is subject when contributed, and (b) in the case of any property distributed to a Partner or Assignee by the Partnership, the Partnership’s Carrying Value of such property (as adjusted pursuant to Section 5.3(d)) at the time such property is distributed, reduced by any indebtedness either assumed by such Partner or Assignee upon such distribution or to which such property is subject at the time of distribution, in either case, as determined under Section 752 of the Code.

 

Net Income ” means, for any taxable year, the excess, if any, of the Partnership’s items of income and gain (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable year over the Partnership’s items of loss and deduction (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable year. The items included in the calculation of Net Income shall be determined in accordance with Section 5.3(b) and shall not include any items specially allocated under Section 6.1(d); provided that the determination of the items that have been specially allocated under Section 6.1(d) shall be made as if Section 6.1(d)(xii) were not in this Agreement.

 

Net Loss ” means, for any taxable year, the excess, if any, of the Partnership’s items of loss and deduction (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable year over the Partnership’s items of income and gain (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable year. The items included in the calculation of Net Loss shall be determined in accordance with Section 5.3(b) and shall not include any items specially allocated under Section 6.1(d); provided that the determination of the items that have been specially allocated under Section 6.1(d) shall be made as if Section 6.1(d)(xii) were not in this Agreement.

 

Net Positive Adjustments ” means, with respect to any Partner, the excess, if any, of the total positive adjustments over the total negative adjustments made to the Capital Account of such Partner pursuant to Book-Up Events and Book-Down Events.

 

Net Termination Gain ” means, for any taxable year, the sum, if positive, of all items of income, gain, loss or deduction recognized by the Partnership after the Liquidation Date. The items included in the determination of Net Termination Gain shall be determined in accordance with Section 5.3(b) and shall not include any items of income, gain or loss specially allocated under Section 6.1(d).

 

Net Termination Loss ” means, for any taxable year, the sum, if negative, of all items of income, gain, loss or deduction recognized by the Partnership after the Liquidation Date. The items included in the determination of Net Termination Loss shall be determined in accordance with Section 5.3(b) and shall not include any items of income, gain or loss specially allocated under Section 6.1(d).

 

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Nonrecourse Built-in Gain” means with respect to any Contributed Properties or Adjusted Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of any taxable gain that would be allocated to the Partners pursuant to Sections 6.2(b)(i)(A), 6.2(b)(ii)(A) and 6.2(b)(iii) if such properties were disposed of in a taxable transaction in full satisfaction of such liabilities and for no other consideration.

 

Nonrecourse Deductions ” means any and all items of loss, deduction or expenditure (including, without limitation, any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.

 

Nonrecourse Liability ” has the meaning set forth in Treasury Regulation Section 1.752-1(a)(2).

 

Operating Company ” means High Sierra Operating Company, LLC, a Delaware limited liability company, and any successors thereto.

 

Operating Company Agreement ” means the Limited Liability Company Agreement of the Operating Company, as it may be amended, supplemented or restated from time to time.

 

Operating Expenditures ” means all Partnership Group expenditures, including, but not limited to, taxes, reimbursements of the General Partner, repayment of Working Capital Borrowings, debt service payments and capital expenditures, subject to the following:

 

(a)           Payments (including prepayments) of principal of and premium on indebtedness other than Working Capital Borrowings shall not constitute Operating Expenditures;

 

(b)           Operating Expenditures shall not include (i) capital expenditures made for Acquisitions or for Capital Improvements, (ii) payment of transaction expenses relating to Interim Capital Transactions or (iii) distributions to Partners. Where capital expenditures are made in part for Acquisitions or for Capital Improvements and in part for other purposes, the General Partner’s good faith allocation between the amounts paid for each shall be conclusive; and

 

(c)           The Partnership shall have the right to reimburse, as Operating Expenditures, (i) expenses incurred by the General Partner and expenses incurred by High Sierra Resources, GP, LLC, for matters pertaining to or benefiting the Partnership incurred prior to the Centennial Acquisition; provided, the aggregate of the reimbursements under this subparagraph (c)(i) shall not exceed $75,000; and (ii) expenses incurred by the Institutional Investors for their reasonable legal and out-of-pocket expenses incurred in the investigation and closing of their initial acquisition of Common Units of the Partnership, not to exceed $20,000. Operating Expenses shall also include a structuring and future monitoring fee payable to the Institutional Investors equal to 2.5% of the aggregate amounts paid by the Institutional Investors for their initial acquisition of Common Units of the Partnership.

 

Operating Surplus ” means, with respect to any period ending prior to the Liquidation Date, on a cumulative basis and without duplication,

 

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(a)                                  the sum of (i) $2,000,000, plus all cash and cash equivalents of the Partnership Group on hand as of the close of business on the Effective Date, (ii) all cash receipts of the Partnership Group for the period beginning on the Effective Date and ending with the last day of such period, other than cash receipts from Interim Capital Transactions (except to the extent specified in Section 6.5) and (iii) all cash receipts of the Partnership Group after the end of such period but on or before the date of determination of Operating Surplus with respect to such period resulting from Working Capital Borrowings, less

 

(b)                                  the sum of (i) Operating Expenditures for the period beginning on the Effective Date and ending with the last day of such period and (ii) the amount of cash reserves that is necessary or advisable in the reasonable discretion of the General Partner to provide funds for future Operating Expenditures; provided, however, that disbursements made (including contributions to a Partnership Group Member or disbursements on behalf of a Partnership Group Member) or cash reserves established, increased or reduced after the end of such period but on or before the date of determination of Available Cash with respect to such period shall be deemed to have been made, established, increased or reduced, for purposes of determining Operating Surplus, within such period if the General Partner so determines.

 

Notwithstanding the foregoing, “ Operating Surplus ” with respect to the Quarter in which the Liquidation Date occurs and any subsequent Quarter shall equal zero.

 

Opinion of Counsel ” means a written opinion of counsel (who may be regular counsel to the Partnership or the General Partner or any of its Affiliates) acceptable to the General Partner in its reasonable discretion.

 

Original Subordinated Units ” means the Subordinated Units issued to the Initial Limited Partners upon the execution of this Agreement, being up to a total of 80,000 Subordinated Units. The Original Subordinated Units shall not be entitled to any distributions until the closing of the Centennial Acquisition, or such other acquisition by the Partnership designated by the Board as an acquisition for commencement of distributions in respect of the Original Subordinated Units.

 

Outstanding ” means, with respect to Partnership Securities, all Partnership Securities that are issued by the Partnership and reflected as outstanding on the Partnership’s books and records as of the date of determination.

 

Parity Units ” means Common Units and all other Units of any other class or series that have the right (i) to receive distributions of Available Cash from Operating Surplus pursuant to each of subclauses (a)(i) and (a)(ii) of Section 6.4 in the same order of priority with respect to the participation of Common Units in such distributions or (ii) to participate in allocations of Net Termination Gain pursuant to Section 6.1(c)(i)(B) in the same order of priority with the Common Units, in each case regardless of whether the amounts or value so distributed or allocated on each Parity Unit equals the amount or value so distributed or allocated on each Common Unit. Units whose participation in such (i) distributions of Available Cash from Operating Surplus and (ii) allocations of Net Termination Gain are subordinate in order of priority to such distributions and allocations on Common Units shall not constitute Parity Units even if such Units are convertible under certain circumstances into Common Units or Parity Units.

 

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Partner Nonrecourse Debt ” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(4).

 

Partner Nonrecourse Debt Minimum Gain” has the meaning set forth in Treasury Regulation Section 1.704-2(i)(2).

 

Partner Nonrecourse Deductions ” means any and all items of loss, deduction or expenditure (including, without limitation, any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(i), are attributable to a Partner Nonrecourse Debt.

 

Partners ” means the General Partner and the Limited Partners.

 

Partnership ” means High Sierra Energy, LP, a Delaware limited partnership, and any successors thereto.

 

Partnership Group ” means the Partnership, the Operating Company and any Subsidiary of any such entity, treated as a single consolidated entity.

 

Partnership Group Member ” means a member of the Partnership Group.

 

Partnership Interest ” means an interest in the Partnership, which shall include the General Partner Interest and Limited Partner Interests.

 

Partnership Minimum Gain ” means that amount determined in accordance with the principles of Treasury Regulation Section 1.704-2(d).

 

Partnership Security ” means any class or series of equity interest in the Partnership (but excluding any options, rights, warrants and appreciation rights relating to an equity interest in the Partnership), including without limitation, Common Units, Subordinated Units and Incentive Distribution Rights.

 

Percentage Interest ” means as of any date of determination (a) as to the General Partner (in its capacity as General Partner without reference to any Limited Partner Interests held by it), 2.0%, (b) as to any Unitholder or Assignee holding Units, the product obtained by multiplying (i) 98% by (ii) the quotient obtained by dividing (A) the number of Units held by such Unitholder or Assignee by (B) the total number of all outstanding Units. The Percentage Interest with respect to an Incentive Distribution Right shall at all times be zero.

 

Person ” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

Per Unit Capital Amount ” means, as of any date of determination, the Capital Account, stated on a per Unit basis, underlying any Unit held by a Person other than the General Partner or any Affiliate of the General Partner who holds Units.

 

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Pro Rata ” means apportioned equally among all designated Units in accordance with their relative Percentage Interests.

 

Quarter ” means, unless the context requires otherwise, a fiscal quarter beginning on January 1, April 1, July 1 and October 1 of each year, or, with respect to the first fiscal quarter after the Effective Date, the portion of such fiscal quarter after the Effective Date, of the Partnership.

 

Recapture Income ” means any gain recognized by the Partnership (computed without regard to any adjustment required by Section 734 or Section 743 of the Code) upon the disposition of any property or asset of the Partnership, which gain is characterized as ordinary income because it represents the recapture of deductions previously taken with respect to such property or asset.

 

Record Date ” means the date established by the General Partner for determining (a) the identity of the Record Holders entitled to notice of, or to vote at, any meeting of Limited Partners or entitled to vote by ballot or give approval of Partnership action in writing without a meeting or entitled to exercise rights in respect of any lawful action of Limited Partners or (b) the identity of Record Holders entitled to receive any report or distribution or to participate in any offer.

 

Record Holder ” means the Person in whose name a Partnership Security is registered on the books of the Partnership as of the opening of business on a particular Business Day.

 

Remaining Net Positive Adjustments ” means as of the end of any taxable period, (i) with respect to the Unitholders holding Common Units or Subordinated Units, the excess of (a) the Net Positive Adjustments of the Unitholders holding Common Units or Subordinated Units as of the end of such period over (b) the sum of those Partners’ Share of Additional Book Basis Derivative Items for each prior taxable period, (ii) with respect to the General Partner (as holder of the General Partner Interest), the excess of (a) the Net Positive Adjustments of the General Partner as of the end of such period over (b) the sum of the General Partner’s Share of Additional Book Basis Derivative Items with respect to the General Partner Interest for each prior taxable period, and (iii) with respect to the holders of Incentive Distribution Rights, the excess of (a) the Net Positive Adjustments of the holders of Incentive Distribution Rights as of the end of such period over (b) the sum of the Share of Additional Book Basis Derivative Items of the holders of the Incentive Distribution Rights for each prior taxable period.

 

Required Allocations ” means (a) any limitation imposed on any allocation of Net Losses or Net Termination Losses under Section 6.1(b) or 6.1(c)(ii) and (b) any allocation of an item of income, gain, loss or deduction pursuant to Section 6.1(d)(i), 6.1(d)(ii), 6.1(d)(iv), 6.1(d)(vii) or 6.1(d)(ix).

 

Residual Gain” or Residual Loss ” means any item of gain or loss, as the case may be, of the Partnership recognized for federal income tax purposes resulting from a sale, exchange or other disposition of a Contributed Property or Adjusted Property, to the extent such item of gain or loss is not allocated pursuant to Section 6.2(b)(i)(A) or 6.2(b)(ii)(A), respectively, to eliminate Book-Tax Disparities.

 

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‘‘Second Liquidation Target Amount ” has the meaning assigned to such term in Section 6.1(c)(i)(E).

 

Second Target Distribution ” means $0.5625 per Unit per Quarter (or, with respect to the period commencing on the Effective Date and ending at the end of the Quarter in which the Effective Date occurs, it means the product of $0.5625 multiplied by a fraction of which the numerator is the number of days in such period, and of which the denominator is the number of days in that Quarter), subject to adjustment in accordance with Section 6.6.

 

Securities Act ” means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute.

 

Share of Additional Book Basis Derivative Items ” means in connection with any allocation of Additional Book Basis Derivative Items for any taxable period, (i) with respect to the Unitholders holding Common Units or Subordinated Units, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the Unitholders’ Remaining Net Positive Adjustments as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time, (ii) with respect to the General Partner (as holder of the General Partner Interest), the amount that bears the same ratio to such additional Book Basis Derivative Items as the General Partner’s Remaining Net Positive Adjustments as of the end of such period bears to the Aggregate Remaining Net Positive Adjustment as of that time, and (iii) with respect to the Partners holding Incentive Distribution Rights, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the Remaining Net Positive Adjustments of the Partners holding the Incentive Distribution Rights as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time.

 

Subordinated Unit ” means a Unit representing a fractional part of the Partnership Interests of all Limited Partners and Assignees and having the rights and obligations specified with respect to Subordinated Units in this Agreement. The term “Subordinated Unit” as used herein does not include a Common Unit or Parity Unit. A Subordinated Unit that is convertible into a Common Unit or a Parity Unit shall not constitute a Common Unit or Parity Unit until such conversion occurs.

 

Subordination Period ” means the period commencing on the Effective Date and ending on the first to occur of the following dates:

 

(a)                                  the first day of the Quarter beginning after all of the Subordinated Units have been converted to Common Units under the provisions of Section 5.5; and

 

(b)                                  the date on which the General Partner is removed as general partner of the Partnership upon the requisite vote by holders of Outstanding Units under circumstances where Cause does not exist and Units held by the General Partner and its Affiliates are not voted in favor of such removal.

 

Subsidiary ” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such

 

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Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.

 

Substituted Limited Partner ” means a Person who is admitted as a Limited Partner to the Partnership pursuant to Section 10.2 in place of and with all the rights of a Limited Partner and who is shown as a Limited Partner on the books and records of the Partnership.

 

Third Liquidation Target Amount ” has the meaning assigned to such term in Section 6.1(c)(i)(F).

 

Third Target Distribution ” means $0.675 per Unit per Quarter (or, with respect to the period commencing on the Effective Date and ending at the end of the Quarter in which the Effective Date occurs, it means the product of $0.675 multiplied by a fraction of which the numerator is the number of days in such period, and of which the denominator is the number of days in that Quarter), subject to adjustment in accordance with Section 6.6.

 

Transfer ” has the meaning assigned to such term in Section 4.3(a).

 

Unit ” means a Partnership Security that is designated as a “Unit” and shall include Common Units and Subordinated Units but shall not include (i) a General Partner Interest or (ii) Incentive Distribution Rights.

 

Unitholders ” means the holders of Units.

 

Unit Majority ” means, during the Subordination Period, at least a majority of the Outstanding Common Units (excluding Common Units owned by the General Partner and its Affiliates) voting as a class and at least a majority of the Outstanding Subordinated Units voting as a class, and thereafter, at least a majority of the Outstanding Common Units.

 

Unpaid MQD ” has the meaning assigned to such term in Section 6.1(c)(i)(B).

 

Unrealized Gain ” attributable to any item of Partnership property means, as of any date of determination, the excess, if any, of (a) the fair market value of such property as of such date (as determined under Section 5.3(d)) over (b) the Carrying Value of such property as of such date (prior to any adjustment to be made pursuant to Section 5.3(d) as of such date).

 

Unrealized Loss ” attributable to any item of Partnership property means, as of any date of determination, the excess, if any, of (a) the Carrying Value of such property as of such date (prior to any adjustment to be made pursuant to Section 5.3(d) as of such date) over (b) the fair market value of such property as of such date (as determined under Section 5.3(d)).

 

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Unrecovered Capital ” means at any time, with respect to a Unit, the Initial Unit Price less the sum of all distributions constituting Capital Surplus theretofore made in respect of an Initial Common Unit and any distributions of cash (or the Net Agreed Value of any distributions in kind) in connection with the dissolution and liquidation of the Partnership theretofore made in respect of an Initial Common Unit, adjusted as the General Partner determines to be appropriate to give effect to any distribution, subdivision or combination of such Units.

 

U.S. GAAP ” means United States Generally Accepted Accounting Principles consistently applied.

 

“Working Capital Borrowings ” means borrowings used solely for working capital purposes or to pay distributions to Partners made pursuant to a credit facility or other arrangement requiring all such borrowings thereunder to be reduced to a relatively small amount each year for an economically meaningful period of time.

 

Section 1.2                                     Construction.

 

Unless the context requires otherwise: (a) any pronoun used in this Agreement 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) references to Articles and Sections refer to Articles and Sections of this Agreement; and (c) the term “include” or “includes” means includes, without limitation, and “including” means including, without limitation.

 

ARTICLE II

 

ORGANIZATION

 

Section 2.1                                     Formation.

 

The General Partner and the Initial Limited Partners formed the Partnership as a limited partnership pursuant to the provisions of the Delaware Act. Except as expressly provided to the contrary in this Agreement, the rights, duties (including fiduciary duties), liabilities and obligations of the Partners and the administration, dissolution and termination of the Partnership shall be governed by the Delaware Act. All Partnership Interests shall constitute personal property of the owner thereof for all purposes and a Partner has no interest in specific Partnership property.

 

Section 2.2                                     Name.

 

The name of the Partnership shall be “High Sierra Energy, LP.” The Partnership’s business may be conducted under any other name or names deemed necessary or appropriate by the General Partner in its sole discretion, including the name of the General Partner.

 

Section 2.3                                     Registered Office; Registered Agent; Principal Office; Other Offices.

 

Unless and until changed by the General Partner, the registered office of the Partnership in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware 19801,

 

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and the registered agent for service of process on the Partnership in the State of Delaware at such registered office shall be The Corporation Trust Company. The principal office of the Partnership shall be located at 3773 Cherry Creek Drive North, Suite 655, Denver, Colorado 80209, or such other place as the General Partner may from time to time designate by notice to the Limited Partners.

 

Section 2.4                                     Purpose and Business.

 

The purpose and nature of the business to be conducted by the Partnership shall be to engage in, directly or through a Partnership Group Member the exploration, development, mining or production, processing, refining, transportation (including pipelines transporting gas, oil or products thereof), or the marketing of any mineral or natural resource, and in connection therewith, to: (a) serve as a member of the Operating Company and, in connection therewith, to exercise all the rights and powers conferred upon the Partnership as a member of the Operating Company pursuant to the Operating Company Agreement or otherwise, (b) engage directly in, or enter into or form any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that the Operating Company is permitted to engage in by the Operating Company Agreement or that its subsidiaries are permitted to engage in by their limited liability company or partnership agreements and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements relating to such business activity, (c) engage directly in, or enter into or form any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that is approved by the General Partner and which lawfully may be conducted by a limited partnership organized pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements relating to such business activity; provided, however, that the General Partner reasonably determines, as of the date of the acquisition or commencement of such activity, that such activity does not affect the Partnership’s treatment as a partnership for Federal income tax purposes, and (d) do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to a Partnership Group Member. The General Partner has no obligation or duty to the Partnership, the Limited Partners or the Assignees to propose or approve, and in its discretion may decline to propose or approve, the conduct by the Partnership of any business.

 

Section 2.5                                     Powers.

 

The Partnership shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described in Section 2.4 and for the protection and benefit of the Partnership.

 

Section 2.6                                     Power of Attorney.

 

(a)                                  Each Limited Partner and each Assignee hereby constitutes and appoints the General Partner and, if a Liquidator shall have been selected pursuant to Section 12.3, the Liquidator (and any successor to the Liquidator by merger, transfer, assignment, election or otherwise) and each of their authorized officers and attorneys-in-fact, as the case may be, with

 

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full power of substitution, as his true and lawful agent and attorney-in-fact, with full power and authority in his name, place and stead, to:

 

(i)                                      execute, swear to, acknowledge, deliver, file and record in the appropriate public offices (A) all certificates, documents and other instruments (including this Agreement and the Certificate of Limited Partnership and all amendments or restatements hereof or thereof) that the General Partner or the Liquidator deems necessary or appropriate to form, qualify or continue the existence or qualification of the Partnership as a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Delaware and in all other jurisdictions in which the Partnership may conduct business or own property; (B) all certificates, documents and other instruments that the General Partner or the Liquidator deems necessary or appropriate to reflect, in accordance with its terms, any amendment, change, modification or restatement of this Agreement; (C) all certificates, documents and other instruments (including conveyances and a certificate of cancellation) that the General Partner or the Liquidator deems necessary or appropriate to reflect the dissolution and liquidation of the Partnership pursuant to the terms of this Agreement; (D) all certificates, documents and other instruments relating to the admission, withdrawal, removal or substitution of any Partner pursuant to, or other events described in, Article IV, X, XI or XII; and (E) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges of any class or series of Partnership Securities issued pursuant to Section 5.4; and

 

(ii)                                   execute, swear to, acknowledge, deliver, file and record all ballots, consents, approvals, waivers, certificates, documents and other instruments necessary or appropriate, in the discretion of the General Partner or the Liquidator, to make, evidence, give, confirm or ratify any vote, consent, approval, agreement or other action that is made or given by the Partners hereunder or is consistent with the terms of this Agreement or is necessary or appropriate, in the discretion of the General Partner or the Liquidator, to effectuate the terms or intent of this Agreement; provided, that when required by Section 13.3 or any other provision of this Agreement that establishes a percentage of the Limited Partners or of the Limited Partners of any class or series required to take any action, the General Partner and the Liquidator may exercise the power of attorney made in this Section 2.6(a)(ii) only after the necessary vote, consent or approval of the Limited Partners or of the Limited Partners of such class or series, as applicable.

 

Nothing contained in this Section 2.6(a) shall be construed as authorizing the General Partner to amend this Agreement except in accordance with Article XIII or as may be otherwise expressly provided for in this Agreement.

 

(b)                                  The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest, and it shall survive and, to the maximum extent permitted by law, not be affected by the subsequent death, incompetency, disability, incapacity, dissolution, bankruptcy or termination of any Limited Partner or Assignee and the transfer of all or any portion of such Limited Partner’s or Assignee’s Partnership Interest and shall extend to such Limited Partner’s or Assignee’s heirs, successors, assigns and personal representatives. Each such Limited Partner or Assignee hereby agrees to be bound by any representation made by the

 

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General Partner or the Liquidator acting in good faith pursuant to such power of attorney; and each such Limited Partner or Assignee, to the maximum extent permitted by law, hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the General Partner or the Liquidator taken in good faith under such power of attorney. Each Limited Partner or Assignee shall execute and deliver to the General Partner or the Liquidator, within 15 days after receipt of the request therefor, such further designation, powers of attorney and other instruments as the General Partner or the Liquidator deems necessary to effectuate this Agreement and the purposes of the Partnership.

 

Section 2.7                                     Term.

 

The term of the Partnership commenced upon the filing of the Certificate of Limited Partnership in accordance with the Delaware Act and shall continue in existence until the dissolution of the Partnership in accordance with the provisions of Article XII.

 

Section 2.8                                     Title to Partnership Assets.

 

Title to Partnership assets, 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 or Assignee, individually or collectively, shall have any ownership interest in such Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be held in the name of the Partnership, the General Partner, one or more of its Affiliates or one or more nominees, as the General Partner may determine.

 

ARTICLE III

 

RIGHTS OF LIMITED PARTNERS

 

Section 3.1                                     Limitation of Liability.

 

The Limited Partners and the Assignees shall have no liability under this Agreement except as expressly provided in this Agreement or the Delaware Act.

 

Section 3.2                                     Management of Business.

 

No Limited Partner or Assignee, in its capacity as such, shall participate in the operation, management or control (within the meaning of the Delaware Act) of the Partnership’s business, transact any business in the Partnership’s name or have the power to sign documents for or otherwise bind the Partnership. Any action taken by any Affiliate of the General Partner or any officer, director, employee, manager, member, general partner, agent or trustee of the General Partner or any of its Affiliates, or any officer, director, employee, member, general partner, agent or trustee of a Partnership Group Member, in its capacity as such, shall not be deemed to be participation in the control of the business of the Partnership by a limited partner of the Partnership (within the meaning of Section 17-303(a) of the Delaware Act) and shall not affect, impair or eliminate the limitations on the liability of the Limited Partners or Assignees under this Agreement.

 

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Section 3.3                                     Rights of Limited Partners.

 

(a)                                  In addition to other rights provided by this Agreement or by applicable law, and except as limited by Section 3.3(b), each Limited Partner shall have the right, for a purpose reasonably related to such Limited Partner’s interest as a limited partner in the Partnership, upon reasonable written demand and at such Limited Partner’s own expense:

 

(i)                                      to obtain true and full information regarding the status of the business and financial condition of the Partnership;

 

(ii)                                   promptly after becoming available, to obtain a copy of the Partnership’s federal, state and local income tax returns for each year;

 

(iii)                                to have furnished to him a copy of this Agreement and the Certificate of Limited Partnership and all amendments thereto, together with a copy of the executed copies of all powers of attorney pursuant to which this Agreement, the Certificate of Limited Partnership and all amendments thereto have been executed;

 

(iv)                               to be furnished with monthly unaudited and annual audited financial statements (including income statement, balance sheet and cash flow statements). Monthly statements will contain a brief narrative of the results of operations, and will contain a comparison to budget by month and the comparable prior year period, and year-to-date as compared to budget and the prior year period; provided, that budget amounts shall not be required to be included until after January 31, 2005; and

 

(v)                                  to obtain such other information regarding the affairs of the Partnership as is just and reasonable.

 

(b)                                  The General Partner may keep confidential from the Limited Partners and Assignees, for such period of time as the General Partner deems reasonable, (i) any information that the General Partner reasonably believes to be in the nature of trade secrets or (ii) other information the disclosure of which the General Partner in good faith believes (A) is not in the best interests of the Partnership Group, (B) could damage the Partnership Group or (C) that any Partnership Group Member is required by law or by agreement with any third party to keep confidential (other than agreements with Affiliates of the Partnership the primary purpose of which is to circumvent the obligations set forth in this Section 3.3).

 

ARTICLE IV

 

CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS;

REDEMPTION OF PARTNERSHIP INTERESTS

 

Section 4.1                                     Certificates.

 

Upon the Partnership’s issuance of Common Units, Original Subordinated Units or Subordinated Units to any Person, the Partnership shall issue one or more Certificates in the name of such Person evidencing the number of such Units being so issued.

 

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Section 4.2                                     Record Holders.

 

The Partnership shall be entitled to recognize the Record Holder as the Partner or Assignee with respect to any Partnership Interest and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Partnership Interest on the part of any other Person, regardless of whether the Partnership shall have actual or other notice thereof, except as otherwise provided by law.

 

Section 4.3                                     Transfer Generally.

 

(a)                                  The term “transfer,” when used in this Agreement with respect to a Partnership Interest, shall be deemed to refer to a transaction by which the General Partner assigns its General Partner Interest to another Person who becomes the general partner of the Partnership, by which the holder of a Limited Partner Interest assigns such Limited Partner Interest to another Person who is or becomes a Limited Partner or an Assignee, and includes a sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition by law or otherwise.

 

(b)                                  No Partnership Interest shall be transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article IV. Any transfer or purported transfer of a Partnership Interest not made in accordance with this Article IV shall be null and void.

 

(c)                                   Nothing contained in this Agreement shall be construed to prevent a disposition by any member of the General Partner of any or all of the membership interests of the General Partner.

 

Section 4.4                                     Registration and Transfer of Limited Partner Interests.

 

(a)                                  The General Partner shall keep or cause to be kept on behalf of the Partnership a register in which, subject to such reasonable regulations as it may prescribe and subject to the provisions of Sections 4.6 and 4.4(b), the Partnership will provide for the registration and transfer of Limited Partner Interests. The Partnership shall not recognize transfers of Certificates evidencing Limited Partner Interests unless such transfers comply with Section 4.6 and are effected in the manner described in this Section 4.4. Upon surrender of a Certificate for registration of transfer of any Limited Partner Interests evidenced by a Certificate, and subject to the provisions of Sections 4.6 and 4.4(b), the appropriate officers of the General Partner on behalf of the Partnership shall execute and deliver, in the name of the holder or the designated transferee or transferees, as required pursuant to the holder’s instructions, one or more new Certificates evidencing the same aggregate number and type of Limited Partner Interests as was evidenced by the Certificate so surrendered.

 

(b)                                  The General Partner shall not recognize any transfer of Limited Partner Interests until the transferor shall have complied with Section 4.6. Certificates evidencing such Limited Partner Interests are surrendered for registration of transfer and such Certificates are accompanied by a Transfer Application duly executed by the transferee (or the transferee’s attorney-in-fact duly authorized in writing). No charge shall be imposed by the General Partner for such transfer; provided, that as a condition to the issuance of any new Certificate under this

 

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Section 4.4, the General Partner may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed with respect thereto.

 

(c)                                   The transfer of any Limited Partner Interests and the admission of any new Limited Partner shall not constitute an amendment to this Agreement.

 

(d)                                  Until admitted as a Substituted Limited Partner pursuant to Section 10.2, the Record Holder of a Limited Partner Interest shall be an Assignee in respect of such Limited Partner Interest. Limited Partners may include custodians, nominees or any other individual or entity in its own or any representative capacity.

 

(e)                                   A transferee of a Limited Partner Interest who has completed and delivered a Transfer Application shall be deemed to have (i) requested admission as a Substituted Limited Partner, (ii) agreed to comply with and be bound by and to have executed this Agreement, (iii) represented and warranted that such transferee has the right, power and authority and, if an individual, the capacity to enter into this Agreement, (iv) granted the powers of attorney set forth in this Agreement and (v) given the consents and approvals and made the waivers contained in this Agreement.

 

Section 4.5                                     Transfer of the General Partner’s General Partner Interest.

 

(a)                                  Subject to Section 4.5(b) below, the General Partner may transfer all or any of its General Partner Interest without Unitholder approval.

 

(b)                                  Notwithstanding anything herein to the contrary, no transfer by the General Partner of all or any part of its General Partner Interest to another Person shall be permitted unless the transferee agrees to assume the rights and duties of the General Partner under this Agreement and to be bound by the provisions of this Agreement.

 

Section 4.6                                     Restrictions on Transfers.

 

(a)                                  No Limited Partnership Interest can be sold, transferred or otherwise distributed unless (i) the transferor first obtains the General Partner’s prior written consent to such sale, transfer or other distribution, (ii) the Limited Partner Interests to be transferred, sold or otherwise distributed are subsequently registered under the applicable federal and state securities laws or exemptions from such registration are available, and (iii) the transfer, sale or other distribution will not cause us to be terminated or treated as a corporation for tax purposes or subject us to any other additional regulatory requirements.

 

(b)                                  The General Partner may require, as a condition to consenting to a requested transfer, sale or other distribution that the Limited Partner obtain, at such Limited Partner’s own expense, an opinion from counsel satisfactory to the General Partner concluding that the proposed transfer, sale or other distribution would (i) not require registration of the Limited Partner Interest under the Securities Act; (ii) be in violation of any applicable state securities or “Blue Sky” law or other applicable securities law or regulation; (iii) result in the Partnership’s termination (within the meaning of Section 708 of the Internal Revenue Code) or cause the Partnership to be treated as a corporation for federal income tax purposes; or (iv) subject the Partnership, the General Partner, or any of its Affiliates to any additional regulatory

 

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requirements, such as the Employee Retirement Income Security Act of 1974, as amended, the Investment Company Act of 1940, as amended, or the Investment Advisors Act of 1940, as amended. Each Limited Partner also must agree not to sell, transfer or otherwise distribute any Limited Partner Interests to any person who does not represent and warrant that the person is an accredited investor, as that term is defined in Rule 501 of Regulation D promulgated under the Act, and that the acquisition of such Limited Partner Interests is made as principal for such investor’s own account, for investment purposes and not with a view to the resale, transfer or other distribution of such Limited Partner Interests.

 

(c)                                   Certificates representing any of the Limited Partner Interests will bear appropriate legends evidencing their status as restricted securities and the restrictions and other limitations on their transfer. Such certificates may also bear legends under applicable state securities laws.

 

(d)                                  The General Partner may impose additional restrictions on the transfer of Partnership Interests if a subsequent Opinion of Counsel determines that such restrictions are necessary to avoid a significant risk of any Partnership Group Member becoming taxable as a corporation or otherwise to be taxed as an entity for federal income tax purposes. The restrictions may be imposed by making such amendments to this Agreement as the General Partner may determine to be necessary or appropriate to impose such restrictions.

 

Section 4.7                                     Redemption Rights of Institutional Investors.

 

Upon the expiration of five (5) years following the consummation of the Centennial Acquisition, (the “ Put Event ”), the Institutional Investors, may make an election (a “ Put Election ”), applicable to all of the Institutional Investors, to request that the Partnership purchase all, but not less than all, of the Institutional Investor’s Common Units (the “ Put Common Units ”) at the Put Price and on the Put Terms. The price (the “ Put Price ”) at which Partnership shall purchase the Put Common Units shall be the price established by agreement of the General Partner and the Institutional Investors. Upon such agreement, and upon the Partnership’s election to purchase the Put Common Units, the Partnership shall purchase the Put Common Units in the following manner (the “ Put Terms ”):

 

(a)                                  The Put Price shall be paid to the Institutional Investors by wire transfer of immediately available funds within 30 days following delivery of a Put Election.

 

(b)                                  Each Institutional Investor shall, as a condition to receiving the Put Price, deliver such instruments, in form and substance satisfactory to Partnership, as the General Partner may deem necessary or desirable to effect the purchase of the Put Common Units.

 

If, within 10 days following the Put Election, the Partnership does not elect to purchase the Put Common Units, or if the Institutional Investors and the General Partner are unable to agree on the Put Price, then the Partnership and the Institutional Investors shall agree upon the selection of an investment banker to be engaged in pursuing a sale of the Partnership. The General Partner shall use its diligent efforts to pursue such a sale; provided, any such sale shall be subject to the approval of the General Partner.

 

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ARTICLE V

 

CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS

 

Section 5.1                                     Organizational Contributions.

 

In connection with the formation of the Partnership under the Delaware Act, the General Partner made an initial Capital Contribution to the Partnership in the amount of $1.00, for a 2% General Partner Interest in the Partnership and has been admitted as the General Partner of the Partnership, and the Initial Limited Partners made initial Capital Contributions to the Partnership in the amount of $50.00 for a 98% Limited Partner Interest in the Partnership and have been admitted as Limited Partners of the Partnership. The Limited Partner Interests of the Initial Limited Partners comprised of Kellershan, LLC and Impact Development, LLC are represented by 25,000 Original Subordinated Units issued to each of those Initial Limited Partners, and any additional Initial Limited Partners’ Limited Partnership Interests shall also be represented by Original Subordinated Units. Upon closing of the Centennial Acquisition, and effective immediately preceding such closing, Eagle River Capital, LLC and Tom Wood were admitted as additional Initial Limited Partners, with Eagle River Capital, LLC contributing $50.00 to the Partnership in exchange for 25,000 Original Subordinated Units, and Tom Wood contributing $10.00 in exchange for 5,000 Original Subordinated Units.

 

Section 5.2                                     Interest and Withdrawal.

 

No interest shall be paid by the Partnership on Capital Contributions. No Partner or Assignee shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent, if any, that distributions made pursuant to this Agreement or upon termination of the Partnership may be considered as such by law and then only to the extent provided for in this Agreement.

 

Section 5.3                                     Capital Accounts.

 

(a)                                  The Partnership shall maintain for each Partner (or a beneficial owner of Partnership Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method acceptable to the General Partner in its sole discretion) owning a Partnership Interest a separate Capital Account with respect to such Partnership Interest in accordance with the rules of Treasury Regulation Section 1.704-l(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital Contributions made to the Partnership with respect to such Partnership Interest pursuant to this Agreement and (ii) all items of Partnership income and gain (including, without limitation, income and gain exempt from tax) computed in accordance with Section 5.3(b) and allocated with respect to such Partnership Interest pursuant to Section 6.1, and decreased by (x) the amount of cash or Net Agreed Value of all actual and deemed distributions of cash or property made with respect to such Partnership Interest pursuant to this Agreement and (y) all items of Partnership deduction and loss computed in accordance with Section 5.3(b) and allocated with respect to such Partnership Interest pursuant to Section 6.1.

 

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(b)                                  For purposes of computing the amount of any item of income, gain, loss or deduction which is to be allocated pursuant to Article VI and is to be reflected in the Partners’ Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for federal income tax purposes (including, without limitation, any method of depreciation, cost recovery or amortization used for that purpose), provided, that:

 

(i)                                      Solely for purposes of this Section 5.3, the Partnership shall be treated as owning directly its proportionate share (as determined by the General Partner based upon the provisions of the Operating Company Agreement) of all property owned by the Operating Company or any other Subsidiary that is classified as a partnership for federal income tax purposes.

 

(ii)                                   All fees and other expenses incurred by the Partnership to promote the sale of (or to sell) a Partnership Interest that can neither be deducted nor amortized under Section 709 of the Code, if any, shall, for purposes of Capital Account maintenance, be treated as an item of deduction at the time such fees and other expenses are incurred and shall be allocated among the Partners pursuant to Section 6.1.

 

(iii)                                Except as otherwise provided in Treasury Regulation Section 1.704-l(b)(2)(iv)(m), the computation of all items of income, gain, loss and deduction shall be made without regard to any election under Section 754 of the Code which may be made by the Partnership and, as to those items described in Section 705(a)(1)(B) or 705(a)(2)(B) of the Code, without regard to the fact that such items are not includable in gross income or are neither currently deductible nor capitalized for federal income tax purposes. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-l(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment in the Capital Accounts shall be treated as an item of gain or loss.

 

(iv)                               In accordance with the requirements of Section 704(b) of the Code, any deductions for depreciation, cost recovery or amortization attributable to any Contributed Property shall be determined as if the adjusted basis of such property on the date it was acquired by the Partnership were equal to the Agreed Value of such property.

 

(c)                                   A transferee of a Partnership Interest shall succeed to a pro rata portion of the Capital Account of the transferor relating to the Partnership Interest so transferred.

 

(d)                                  (i)                                      In accordance with Treasury Regulation Section 1.704-l(b)(2)(iv)(f), on an issuance of additional Partnership Interests for cash or Contributed Property or the conversion of the General Partner’s Combined Interest to Common Units pursuant to Section 11.3(b), the Capital Account of all Partners and the Carrying Value of each Partnership property immediately prior to such issuance shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized on an actual sale of each such property immediately prior to such issuance and had been

 

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allocated to the Partners at such time pursuant to Section 6.1 in the same manner as any item of gain or loss actually recognized during such period would have been allocated. In determining such Unrealized Gain or Unrealized Loss, the aggregate cash amount and fair market value of all Partnership assets (including, without limitation, cash or cash equivalents) immediately prior to the issuance of additional Partnership Interests shall be determined by the General Partner using such reasonable method of valuation as it may adopt; provided, however, that the General Partner, in arriving at such valuation, must take fully into account the fair market value of the Partnership Interests of all Partners at such time. The General Partner shall allocate such aggregate value among the assets of the Partnership (in such manner as it determines in its discretion to be reasonable) to arrive at a fair market value for individual properties.

 

(ii)                                   In accordance with Treasury Regulation Section 1.704-l(b)(2)(iv)(f), immediately prior to any actual or deemed distribution to a Partner of any Partnership property (other than a distribution of cash that is not in redemption or retirement of a Partnership Interest), the Capital Accounts of all Partners and the Carrying Value of all Partnership property shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized in a sale of such property immediately prior to such distribution for an amount equal to its fair market value, and had been allocated to the Partners, at such time, pursuant to Section 6.1 in the same manner as any item of gain or loss actually recognized during such period would have been allocated. In determining such Unrealized Gain or Unrealized Loss the aggregate cash amount and fair market value of all Partnership assets (including, without limitation, cash or cash equivalents) immediately prior to a distribution shall (A) in the case of an actual distribution which is not made pursuant to Section 12.4 or in the case of a deemed distribution, be determined and allocated in the same manner as that provided in Section 5.3(d)(i) or (B) in the case of a liquidating distribution pursuant to Section 12.4, be determined and allocated by the Liquidator using such reasonable method of valuation as it may adopt.

 

Section 5.4                                     Issuances of Additional Partnership Securities.

 

(a)                                  The Partnership may issue additional Partnership Securities and options, rights, warrants and appreciation rights relating to the Partnership Securities for any Partnership purpose at any time and from time to time to such Persons for such consideration and on such terms and conditions as shall be established by the General Partner in its sole discretion, all without the approval of any Limited Partners.

 

(b)                                  Each additional Partnership Security authorized to be issued by the Partnership pursuant to Section 5.4(a) may be issued in one or more classes, or one or more series of any such classes, with such designations, preferences, rights, powers and duties (which may be senior to existing classes and series of Partnership Securities), as shall be fixed by the General Partner in the exercise of its sole discretion, including (i) the right to share Partnership profits and losses or items thereof; (ii) the right to share in Partnership distributions; (iii) the rights upon dissolution and liquidation of the Partnership; (iv) whether, and the terms and conditions upon which, the Partnership may redeem the Partnership Security; (v) whether such Partnership

 

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Security is issued with the privilege of conversion or exchange and, if so, the terms and conditions of such conversion or exchange; (vi) the terms and conditions upon which each Partnership Security will be issued, evidenced by certificates and assigned or transferred; and (vii) the right, if any, of each such Partnership Security to vote on Partnership matters, including matters relating to the relative rights, preferences and privileges of such Partnership Security.

 

(c)                                   The General Partner is hereby authorized and directed to take all actions that it deems necessary or appropriate in connection with (i) each issuance of Partnership Securities and options, rights, warrants and appreciation rights relating to Partnership Securities pursuant to this Section 5.4, (ii) the conversion of the General Partner Interest or any Incentive Distribution Rights into Units pursuant to the terms of this Agreement, (iii) the admission of Additional Limited Partners and (iv) all additional issuances of Partnership Securities. The General Partner is further authorized and directed to specify the relative rights, powers and duties of the holders of the Units or other Partnership Securities being so issued. The General Partner shall do all things necessary to comply with the Delaware Act and is authorized and directed to do all things it deems to be necessary or advisable in connection with any future issuance of Partnership Securities or in connection with the conversion of the General Partner Interest or any Incentive Distribution Rights into Units pursuant to the terms of this Agreement, including compliance with any statute, rule, regulation or guideline of any federal, state or other governmental agency.

 

Section 5.5                                     Conversion of Subordinated Units.

 

(a)                                  The Outstanding Original Subordinated Units will convert into Common Units in accordance with the following (with each of the following events in i., through v., being a “Conversion Event”):

 

(i)                                      The first 50% of the Original Subordinated Units shall convert on a one-for-one basis upon the earlier of (A) after the MQD has been paid on all Common Units and all Subordinated Units for 6 consecutive quarters, or (2) after the Adjusted Operating Surplus, as defined herein, during such 6 consecutive quarter period exceeds the sum of the MQD for all Common Units and Subordinated Units; provided that, after taking the conversion into account, the Partnership would meet the “Coverage Requirement”, as defined below; and, if the Coverage Requirement would not be met, then the amount of Outstanding Subordinated Units that will convert will be reduced to the amount necessary so that the Partnership would meet the Coverage Requirement.

 

(ii)                                   The remaining 50% of the Original Subordinated Units shall convert on a one-for-one basis upon the earlier of (1) after the MQD has been paid on all Common Units and Subordinated Units for 6 consecutive quarters after the first 50% of the Original Subordinated Units have converted to Common Units, or (2) after the Adjusted Operating Surplus during such 6 consecutive quarter period after the first 50% of the Original Subordinated Units have converted, exceeds the sum of the MQD for all Common Units and Subordinated Units; provided that, after taking the conversion into account, the Partnership would meet the “Coverage Requirement”, as defined below; and, if the Coverage Requirement would not be met, then the amount of Outstanding Subordinated Units that will convert will be reduced to the amount necessary so that the Partnership would meet the Coverage Requirement.

 

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(iii)                                Upon a Change of Control of the General Partner, all of the Outstanding Original Subordinated Units will convert on a one-for-one basis upon the later of (i) the date upon which a conversion under 5.5(a), above occurs, or (ii) the date upon which the Change of Control is effective; provided that, after taking the conversion into account, the Partnership would meet the “Coverage Requirement”, as defined below; and, if the Coverage Requirement would not be met, then the amount of Outstanding Subordinated Units that will convert will be reduced to the amount necessary so that the Partnership would meet the Coverage Requirement.

 

(vi)                               As used herein, “Coverage Requirement” means, at the time of determination, that the “Net Cash Flow From Operations” for the applicable Quarter equals 1.2 times the amount of all distributions to be made to holders of General Partner Interests, Common Units (including the Subordinated Units to be converted) and holders of Incentive Distribution Rights. As used herein, “Net Cash Flow From Operations” means, with respect to the particular Quarter, Net Income plus depreciation, less “Maintenance Capital”. As used herein, “Maintenance Capital” means any capital expenditure that is not a Capital Improvement.

 

(vii)                            If, on any Conversion Event, the Coverage Requirement requires that less than the otherwise applicable amount of Original Subordinated Units be converted to Common Units, then portions of the Original Subordinated Units that were not converted shall be converted at such time or times after the applicable Conversion Event on which the Coverage Requirement is met.

 

(b)                                  Notwithstanding any other provision of this Agreement, all the then Outstanding Original Subordinated Units will automatically convert into Common Units on a one-for-one basis upon the events as set forth in, and pursuant to the terms of, Section 11.4.

 

(c)                                   A Subordinated Unit that has converted into a Common Unit shall be subject to the all provisions of this Agreement pertaining to Common Units.

 

(d)                                  The terms of conversion of any Subordinated Units issued subsequent to the issuance of all Original Subordinated Units shall be as set forth by the General Partner in the issuance of such Subordinated Units.

 

Section 5.6                                     Fully Paid and Non-Assessable Nature of Limited Partner Interests.

 

All Limited Partner Interests issued pursuant to, and in accordance with the requirements of, this Article V shall be fully paid and non-assessable Limited Partner Interests in the Partnership, except as such non-assessability may be affected by Section 17-607 of the Delaware Act.

 

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ARTICLE VI

 

ALLOCATIONS AND DISTRIBUTIONS

 

Section 6.1                                     Allocations for Capital Account Purposes.

 

For purposes of maintaining the Capital Accounts and in determining the rights of the Partners among themselves, the Partnership’s items of income, gain, loss and deduction (computed in accordance with Section 5.3(b)) shall be allocated among the Partners in each taxable year (or portion thereof) as provided herein below.

 

(a)                                  Net Income. After giving effect to the special allocations set forth in Section 6.1(d), Net Income for each taxable year and all items of income, gain, loss and deduction taken into account in computing Net Income for such taxable year shall be allocated as follows:

 

(i)                                      First, 100% to the General Partner, in an amount equal to the aggregate Net Losses allocated to the General Partner pursuant to Section 6.1(b)(iii) for all previous taxable years until the aggregate Net Income allocated to the General Partner pursuant to this Section 6.1(a)(i) for the current taxable year and all previous taxable years is equal to the aggregate Net Losses allocated to the General Partner pursuant to Section 6.1(b)(iii) for all previous taxable years;

 

(ii)                                   Second, 2% to the General Partner, in an amount equal to the aggregate Net Losses allocated to the General Partner pursuant to Section 6.1(b)(ii) for all previous taxable years and 98% to the Unitholders, in accordance with their respective Percentage Interests, until the aggregate Net Income allocated to such Partners pursuant to this Section 6.1(a)(ii) for the current taxable year and all previous taxable years is equal to the aggregate Net Losses allocated to such Partners pursuant to Section 6.1(b)(ii) for all previous taxable years; and

 

(iii)                                Third, 2% to the General Partner, and 98% to the Unitholders, Pro Rata.

 

(b)                                  Net Losses. After giving effect to the special allocations set forth in Section 6.1(d), Net Losses for each taxable period and all items of income, gain, loss and deduction taken into account in computing Net Losses for such taxable period shall be allocated as follows:

 

(i)                                      First, 2% to the General Partner, and 98% to the Unitholders, Pro Rata, until the aggregate Net Losses allocated pursuant to this Section 6.1(b)(i) for the current taxable year and all previous taxable years is equal to the aggregate Net Income allocated to such Partners pursuant to Section 6.1(a)(iii) for all previous taxable years, provided that the Net Losses shall not be allocated pursuant to this Section 6.1(b)(i) to the extent that such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such taxable year (or increase any existing deficit balance in its Adjusted Capital Account);

 

(ii)                                   Second, 2% to the General Partner, and 98% to the Unitholders, Pro Rata; provided, that Net Losses shall not be allocated pursuant to this Section 6.1(b)(ii) to the extent that such allocation would cause any Unitholder to have a deficit balance in its

 

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Adjusted Capital Account at the end of such taxable year (or increase any existing deficit balance in its Adjusted Capital Account); and

 

(iii)                                Third, the balance, if any, 100% to the General Partner.

 

(c)                                   Net Termination Gains and Losses. After giving effect to the special allocations set forth in Section 6.1(d), all items of income, gain, loss and deduction taken into account in computing Net Termination Gain or Net Termination Loss for such taxable period shall be allocated in the same manner as such Net Termination Gain or Net Termination Loss is allocated hereunder. All allocations under this Section 6.1(c) shall be made after Capital Account balances have been adjusted by all other allocations provided under this Section 6.1 and after all distributions of Available Cash provided under Sections 6.4 and 6.5 have been made; provided, however, that solely for purposes of this Section 6.1(c), Capital Accounts shall not be adjusted for distributions made pursuant to Section 12.4.

 

(i)                                      If a Net Termination Gain is recognized (or deemed recognized pursuant to Section 5.3(d)), such Net Termination Gain shall be allocated among the Partners in the following manner (and the Capital Accounts of the Partners shall be increased by the amount so allocated in each of the following subclauses, in the order listed, before an allocation is made pursuant to the next succeeding subclause):

 

(A)                                First, to each Partner having a deficit balance in its Capital Account, in the proportion that such deficit balance bears to the total deficit balances in the Capital Accounts of all Partners, until each such Partner has been allocated Net Termination Gain equal to any such deficit balance in its Capital Account;

 

(B)                                Second, 98% to all Unitholders holding Common Units, Pro Rata, and 2% to the General Partner, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) its Unrecovered Capital plus (2) the Minimum Quarterly Distribution for the Quarter during which the Liquidation Date occurs, reduced by any distribution pursuant to Section 6.4(a)(i) or (b)(i) with respect to such Common Unit for such Quarter (the amount determined pursuant to this clause (2) is hereinafter defined as the “Unpaid MQD”) plus (3) any then existing Cumulative Common Unit Arrearage;

 

(C)                                Third, if such Net Termination Gain is recognized (or is deemed to be recognized) prior to the expiration of the Subordination Period, 98% to all Unitholders holding Subordinated Units, Pro Rata, and 2% to the General Partner, until the Capital Account in respect of each Subordinated Unit then Outstanding equals the sum of (1) its Unrecovered Capital, determined for the taxable year (or portion thereof) to which this allocation of gain relates, plus (2) the Minimum Quarterly Distribution for the Quarter during which the Liquidation Date occurs, reduced by any distribution pursuant to Section 6.4(a)(iii) with respect to such Subordinated Unit for such Quarter;

 

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(D)                                Fourth, 98% to all Unitholders, Pro Rata, and 2% to the General Partner, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) its Unrecovered Capital, plus (2) the Unpaid MQD, plus (3) any then existing Cumulative Common Unit Arrearage, plus (4) the excess of (aa) the First Target Distribution less the Minimum Quarterly Distribution for each Quarter of the Partnership’s existence over (bb) the cumulative per Unit amount of any distributions of Available Cash that is deemed to be Operating Surplus made pursuant to Sections 6.4(a)(iv) and 6.4(b)(ii) (the sum of (1) plus (2) plus (3) plus (4) is hereinafter defined as the “First Liquidation Target Amount”);

 

(E)                                 Fifth, 85% to all Unitholders, Pro Rata, 13% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) the First Liquidation Target Amount, plus (2) the excess of (aa) the Second Target Distribution less the First Target Distribution for each Quarter of the Partnership’s existence over (bb) the cumulative per Unit amount of any distributions of Available Cash that is deemed to be Operating Surplus made pursuant to Sections 6.4(a)(v) and 6.4(b)(iii) (the sum of (1) plus (2) is hereinafter defined as the “Second Liquidation Target Amount”);

 

(F)                                  Sixth, 75% to all Unitholders, Pro Rata, 23% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) the Second Liquidation Target Amount, plus (2) the excess of (aa) the Third Target Distribution less the Second Target Distribution for each Quarter of the Partnership’s existence over (bb) the cumulative per Unit amount of any distributions of Available Cash that is deemed to be Operating Surplus made pursuant to Sections 6.4(a)(vi)and 6.4(b)(iv) (the sum of (1) plus (2) is hereinafter defined as the “Third Liquidation Target Amount”); and

 

(G)                                Finally, any remaining amount 50% to all Unitholders, Pro Rata, 48% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner.

 

(ii)                                   If a Net Termination Loss is recognized (or deemed recognized pursuant to Section 5.3(d)), such Net Termination Loss shall be allocated among the Partners in the following manner:

 

(A)                                First, if such Net Termination Loss is recognized (or is deemed to be recognized) prior to the conversion of the last Outstanding Subordinated Unit, 98% to the Unitholders holding Subordinated Units, Pro Rata, and 2% to the General Partner, until the Capital Account in respect of each Subordinated Unit then Outstanding has been reduced to zero;

 

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(B)                                Second, 98% to all Unitholders holding Common Units, Pro Rata, and 2% to the General Partner, until the Capital Account in respect of each Common Unit then Outstanding has been reduced to zero; and

 

(C)                                Third, the balance, if any, 100% to the General Partner.

 

(d)                                  Special Allocations . Notwithstanding any other provision of this Section 6.1, the following special allocations shall be made for such taxable period:

 

(i)                                      Partnership Minimum Gain Chargeback . Notwithstanding any other provision of this Section 6.1, if there is a net decrease in Partnership Minimum Gain during any Partnership taxable period, each Partner shall be allocated items of Partnership income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor provision. For purposes of this Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d) with respect to such taxable period (other than an allocation pursuant to Sections 6.1(d)(vi) and 6.1(d)(vii)). This Section 6.1(d)(i) is intended to comply with the Partnership Minimum Gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

 

(ii)                                   Chargeback of Partner Nonrecourse Debt Minimum Gain . Notwithstanding the other provisions of this Section 6.1 (other than Section 6.1(d)(i)), except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Partner Nonrecourse Debt Minimum Gain during any Partnership taxable period, any Partner with a share of Partner Nonrecourse Debt Minimum Gain at the beginning of such taxable period shall be allocated items of Partnership income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor provisions. For purposes of this Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d), other than Section 6.1(d)(i) and other than an allocation pursuant to Sections 6.1(d)(vi) and 6.1(d)(vii), with respect to such taxable period. This Section 6.1(d)(ii) is intended to comply with the chargeback of items of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

 

(iii)                                Priority Allocations.

 

(A)                                If the amount of cash or the Net Agreed Value of any property distributed (except cash or property distributed pursuant to Section 12.4) to any Unitholder with respect to its Units for a taxable year is greater (on a per Unit basis) than the amount of cash or the Net Agreed Value of property distributed to the other Unitholders with respect to their Units (on a per Unit basis), then (1) each Unitholder receiving such greater cash or property distribution shall be

 

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allocated gross income in an amount equal to the product of (aa) the amount by which the distribution (on a per Unit basis) to such Unitholder exceeds the distribution (on a per Unit basis) to the Unitholders receiving the smallest distribution and (bb) the number of Units owned by the Unitholder receiving the greater distribution; and (2) the General Partner shall be allocated gross income in an aggregate amount equal to l/98th of the sum of the amounts allocated in clause (1) above.

 

(B)                                After the application of Section 6.1(d)(iii)(A), all or any portion of the remaining items of Partnership gross income or gain for the taxable period, if any, shall be allocated 100% to the holders of Incentive Distribution Rights, Pro Rata, until the aggregate amount of such items allocated to the holders of Incentive Distribution Rights pursuant to this paragraph 6.1(d)(iii)(B) for the current taxable year and all previous taxable years is equal to the cumulative amount of all Incentive Distributions made to the holders of Incentive Distribution Rights from the Effective Date to a date 45 days after the end of the current taxable year.

 

(iv)                               Qualified Income Offset . In the event any Partner unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations promulgated under Section 704(b) of the Code, the deficit balance, if any, in its Adjusted Capital Account created by such adjustments, allocations or distributions as quickly as possible unless such deficit balance is otherwise eliminated pursuant to Section 6.1(d)(i) or (ii).

 

(v)                                  Gross Income Allocations . In the event any Partner has a deficit balance in its Capital Account at the end of any Partnership taxable period in excess of the sum of (A) the amount such Partner is required to restore pursuant to the provisions of this Agreement and (B) the amount such Partner is deemed obligated to restore pursuant to Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5), such Partner shall be specially allocated items of Partnership gross income and gain in the amount of such excess as quickly as possible; provided, that an allocation pursuant to this Section 6.1(d)(v) shall be made only if and to the extent that such Partner would have a deficit balance in its Capital Account as adjusted after all other allocations provided for in this Section 6.1 have been tentatively made as if this Section 6.1(d)(v) were not in this Agreement.

 

(vi)                               Nonrecourse Deductions . Nonrecourse Deductions for any taxable period shall be allocated to the Partners in accordance with their respective Percentage Interests. If the General Partner determines in its good faith discretion that the Partnership’s Nonrecourse Deductions must be allocated in a different ratio to satisfy the safe harbor requirements of the Treasury Regulations promulgated under Section 704(b) of the Code, the General Partner is authorized, upon notice to the other Partners, to revise the prescribed ratio to the numerically closest ratio that does satisfy such requirements.

 

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(vii)                            Partner Nonrecourse Deductions . Partner Nonrecourse Deductions for any taxable period shall be allocated 100% to the Partner that bears the Economic Risk of Loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i). If more than one Partner bears the Economic Risk of Loss with respect to a Partner Nonrecourse Debt, such Partner Nonrecourse Deductions attributable thereto shall be allocated between or among such Partners in accordance with the ratios in which they share such Economic Risk of Loss.

 

(viii)                         Nonrecourse Liabilities . For purposes of Treasury Regulation Section 1.752-3(a)(3), the Partners agree that Nonrecourse Liabilities of the Partnership in excess of the sum of (A) the amount of Partnership Minimum Gain and (B) the total amount of Nonrecourse Built-in Gain shall be allocated among the Partners in accordance with their respective Percentage Interests.

 

(ix)                               Code Section 754 Adjustments . To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(c) of the Code is required, pursuant to Treasury Regulation Section 1.704-l(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such item of 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 of the Treasury Regulations.

 

(x)                                  Economic Uniformity . At the election of the General Partner with respect to any taxable period ending upon, or after, the termination of the Subordination Period, all or a portion of the remaining items of Partnership gross income or gain for such taxable period, after taking into account allocations pursuant to Section 6.1(d)(iii), shall be allocated 100% to each Partner holding Subordinated Units that are Outstanding as of the termination of the Subordination Period (“Final Subordinated Units”) in the proportion of the number of Final Subordinated Units held by such Partner to the total number of Final Subordinated Units then Outstanding, until each such Partner has been allocated an amount of gross income or gain which increases the Capital Account maintained with respect to such Final Subordinated Units to an amount equal to the product of (A) the number of Final Subordinated Units held by such Partner and (B) the Per Unit Capital Amount for a Common Unit. The purpose of this allocation is to establish uniformity between the Capital Accounts underlying Final Subordinated Units and the Capital Accounts underlying Common Units held by Persons other than the General Partner and its Affiliates immediately prior to the conversion of such Final Subordinated Units into Common Units.

 

(xi)                               Curative Allocation.

 

(A)                                Notwithstanding any other provision of this Section 6.1, other than the Required Allocations, the Required Allocations shall be taken into account in making the Agreed Allocations so that, to the extent possible, the net amount of

 

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items of income, gain, loss and deduction allocated to each Partner pursuant to the Required Allocations and the Agreed Allocations, together, shall be equal to the net amount of such items that would have been allocated to each such Partner under the Agreed Allocations had the Required Allocations and the related Curative Allocation not otherwise been provided in this Section 6.1. Notwithstanding the preceding sentence, Required Allocations relating to (1) Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partnership Minimum Gain and (2) Partner Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partner Nonrecourse Debt Minimum Gain. Allocations pursuant to this Section 6.1(d)(xi)(A) shall only be made with respect to Required Allocations to the extent the General Partner reasonably determines that such allocations will otherwise be inconsistent with the economic agreement among the Partners. Further, allocations pursuant to this Section 6.1(d)(xi)(A) shall be deferred with respect to allocations pursuant to clauses (1) and (2) hereof to the extent the General Partner reasonably determines that such allocations are likely to be offset by subsequent Required Allocations.

 

(B)                                The General Partner shall have reasonable discretion, with respect to each taxable period, to (1) apply the provisions of Section 6.1(d)(xi)(A) in whatever order is most likely to minimize the economic distortions that might otherwise result from the Required Allocations, and (2) divide all allocations pursuant to Section 6.1(d)(xi)(A) among the Partners in a manner that is likely to minimize such economic distortions.

 

(xii)                            Corrective Allocations . In the event of any allocation of Additional Book Basis Derivative Items or any Book-Down Event or any recognition of a Net Termination Loss, the following rules shall apply:

 

(A)                                In the case of any allocation of Additional Book Basis Derivative Items (other than an allocation of Unrealized Gain or Unrealized Loss under Section 5.3(d) hereof), the General Partner shall allocate additional items of gross income and gain away from the holders of Incentive Distribution Rights to the Unitholders and the General Partner, or additional items of deduction and loss away from the Unitholders and the General Partner to the holders of Incentive Distribution Rights, to the extent that the Additional Book Basis Derivative Items allocated to the Unitholders or the General Partner exceed their Share of Additional Book Basis Derivative Items. For this purpose, the Unitholders and the General Partner shall be treated as being allocated Additional Book Basis Derivative Items to the extent that such Additional Book Basis Derivative Items have reduced the amount of income that would otherwise have been allocated to the Unitholders or the General Partner under the Partnership Agreement (e.g., Additional Book Basis Derivative Items taken into account in computing cost of goods sold would reduce the amount of book income otherwise available for allocation among the Partners). Any allocation made pursuant to this Section 6.1(d)(xii)(A) shall be made after all of the other Agreed Allocations have been made as if this Section 6.1(d)(xii) were not in this Agreement and, to the extent

 

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necessary, shall require the reallocation of items that have been allocated pursuant to such other Agreed Allocations.

 

(B)                                In the case of any negative adjustments to the Capital Accounts of the Partners resulting from a Book-Down Event or from the recognition of a Net Termination Loss, such negative adjustment (1) shall first be allocated, to the extent of the Aggregate Remaining Net Positive Adjustments, in such a manner, as reasonably determined by the General Partner, that to the extent possible the aggregate Capital Accounts of the Partners will equal the amount which would have been the Capital Account balance of the Partners if no prior Book-Up Events had occurred, and (2) any negative adjustment in excess of the Aggregate Remaining Net Positive Adjustments shall be allocated pursuant to Section 6.1(c) hereof.

 

(C)                                In making the allocations required under this Section 6.1(d)(xii), the General Partner, in its sole discretion, may apply whatever conventions or other methodology it deems reasonable to satisfy the purpose of this Section 6.1(d)(xii).

 

Section 6.2                                     Allocations for Tax Purposes.

 

(a)                                  Except as otherwise provided herein, for federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Partners in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Section 6.1.

 

(b)                                  In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or Adjusted Property, items of income, gain, loss, depreciation, amortization and cost recovery deductions shall be allocated for federal income tax purposes among the Partners as follows:

 

(i)                                      (A) In the case of a Contributed Property, such items attributable thereto shall be allocated among the Partners in the manner provided under Section 704(c) of the Code that takes into account the variation between the Agreed Value of such property and its adjusted basis at the time of contribution; and (B) any item of Residual Gain or Residual Loss attributable to a Contributed Property shall be allocated among the Partners in the same manner as its correlative item of “book” gain or loss is allocated pursuant to Section 6.1.

 

(ii)                                   (A) In the case of an Adjusted Property, such items shall (1) first, be allocated among the Partners in a manner consistent with the principles of Section 704(c) of the Code to take into account the Unrealized Gain or Unrealized Loss attributable to such property and the allocations thereof pursuant to Section 5.3(d)(i) or 5.3(d)(ii), and (2) second, in the event such property was originally a Contributed Property, be allocated among the Partners in a manner consistent with Section 6.2(b)(i)(A); and (B) any item of Residual Gain or Residual Loss attributable to an Adjusted Property shall be allocated among the Partners in the same manner as its correlative item of “book” gain or loss is allocated pursuant to Section 6.1.

 

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(iii)                                The General Partner shall apply the principles of Treasury Regulation Section 1.704-3(d) to eliminate Book-Tax Disparities.

 

(c)                                   For the proper administration of the Partnership and for the preservation of uniformity of the Limited Partner Interests (or any class or classes thereof), the General Partner shall have sole discretion to (i) adopt such conventions as it deems appropriate in determining the amount of depreciation, amortization and cost recovery deductions; (ii) make special allocations for federal income tax purposes of income (including, without limitation, gross income) or deductions; and (iii) amend the provisions of this Agreement as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of the Limited Partner Interests (or any class or classes thereof). The General Partner may adopt such conventions, make such allocations and make such amendments to this Agreement as provided in this Section 6.2(c) only if such conventions, allocations or amendments would not have a material adverse effect on the Partners, the holders of any class or classes of Limited Partner Interests issued and Outstanding or the Partnership, and if such allocations are consistent with the principles of Section 704 of the Code.

 

(d)                                  The General Partner in its discretion may use any reasonable depreciation and amortization conventions provided for under the Code to preserve the uniformity of the intrinsic tax characteristics of any Limited Partner Interests that would not have a material adverse effect on the Limited Partners or the Record Holders of any class or classes of Limited Partner Interests.

 

(e)                                   Any gain allocated to the Partners upon the sale or other taxable disposition of any Partnership asset shall, to the extent possible, after taking into account other required allocations of gain pursuant to this Section 6.2, be characterized as Recapture Income in the same proportions and to the same extent as such Partners (or their predecessors in interest) have been allocated any deductions directly or indirectly giving rise to the treatment of such gains as Recapture Income.

 

(f)                                    All items of income, gain, loss, deduction and credit recognized by the Partnership for federal income tax purposes and allocated to the Partners in accordance with the provisions hereof shall be determined without regard to any election under Section 754 of the Code which may be made by the Partnership; provided, however, that such allocations, once made, shall be adjusted as necessary or appropriate to take into account those adjustments permitted or required by Sections 734 and 743 of the Code.

 

(g)                                   Each item of Partnership income, gain, loss and deduction shall for federal income tax purposes, be determined on an annual basis and prorated on a monthly basis and shall be allocated to the Partners as of the first Business Day of each month; provided, that gain or loss on a sale or other disposition of any assets of the Partnership or any other extraordinary item of income or loss realized and recognized other than in the ordinary course of business, as determined by the General Partner in its sole discretion, shall be allocated to the Partners as of the first Business Day of the month in which such gain or loss is recognized for federal income tax purposes. The General Partner may revise, alter or otherwise modify such methods of

 

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allocation as it determines necessary or appropriate in its sole discretion, to the extent permitted or required by Section 706 of the Code and the regulations or rulings promulgated thereunder.

 

(h)                                  Allocations that would otherwise be made to a Limited Partner under the provisions of this Article VI shall instead be made to the beneficial owner of Limited Partner Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method acceptable to the General Partner in its sole discretion.

 

Section 6.3                                     Requirement and Characterization of Distributions; Distributions to Record Holders; Unitholders for Less than the Period of Distribution.

 

(a)                                  Within 45 days following the end of each Quarter, an amount equal to 100% of Available Cash with respect to such Quarter shall, subject to Section 17-607 of the Delaware Act, be distributed in accordance with this Article VI by the Partnership to the Partners as of the Record Date selected by the General Partner in its reasonable discretion. All amounts of Available Cash distributed by the Partnership on any date from any source shall be deemed to be Operating Surplus until the sum of all amounts of Available Cash theretofore distributed by the Partnership to the Partners pursuant to Section 6.4 equals the Operating Surplus from the Effective Date through the close of the immediately preceding Quarter. Any remaining amounts of Available Cash distributed by the Partnership on such date shall, except as otherwise provided in Section 6.5, be deemed to be “Capital Surplus.” All distributions required to be made under this Agreement shall be made subject to Section 17-607 of the Delaware Act.

 

(b)                                  Notwithstanding Section 6.3(a), in the event of the dissolution and liquidation of the Partnership, all receipts received during or after the Quarter in which the Liquidation Date occurs, other than from borrowings described in (a)(ii) of the definition of Available Cash, shall be applied and distributed solely in accordance with, and subject to the terms and conditions of, Section 12.4.

 

(c)                                   Notwithstanding anything herein to the contrary, if a Record Holder entitled to distributions for a particular Quarter held such Units for less than the entire Quarter, the distributions applicable to such Units shall be an amount equal to the otherwise applicable distribution, multiplied by a fraction, the numerator of which is the number of days such Units were held during such Quarter, and the denominator of which is the number of days in that Quarter.

 

(d)                                  The General Partner shall have the discretion to treat taxes paid by the Partnership on behalf of, or amounts withheld with respect to, all or less than all of the Partners, as a distribution of Available Cash to such Partners.

 

(e)                                   Each distribution in respect of a Partnership Interest shall be paid by the Partnership only to the Record Holder of such Partnership Interest as of the Record Date set for such distribution. Such payment shall constitute full payment and satisfaction of the Partnership’s liability in respect of such payment, regardless of any claim of any Person who may have an interest in such payment by reason of an assignment or otherwise.

 

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Section 6.4                                     Distributions of Available Cash from Operating Surplus.

 

(a)                                  During Subordination Period. Available Cash with respect to any Quarter within the Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of this Agreement shall, subject to Section 17-607 of the Delaware Act, be distributed as follows, except as otherwise required by Section 5.4(b) in respect of additional Partnership Securities issued pursuant thereto:

 

(i)                                      First, 98% to the Unitholders holding Common Units, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;

 

(ii)                                   Second, 98% to the Unitholders holding Common Units, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage existing with respect to such Quarter;

 

(iii)                                Third, 98% to the Unitholders holding Original Subordinated Units, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Subordinated Unit then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;

 

(iv)                               Fourth, 98% to all Unitholders, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the First Target Distribution over the Minimum Quarterly Distribution for such Quarter;

 

(v)                                  Fifth, 85% to all Unitholders, Pro Rata, 13% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Second Target Distribution over the First Target Distribution for such Quarter;

 

(vi)                               Sixth, 75% to all Unitholders, Pro Rata, 23% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Third Target Distribution over the Second Target Distribution for such Quarter; and

 

(vii)                            Thereafter, 50% to all Unitholders, Pro Rata, 48% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner;

 

provided, however, if the Minimum Quarterly Distribution, the First Target Distribution, the Second Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the second sentence of Section 6.6, the distribution of Available Cash that is deemed to be Operating Surplus with respect to any Quarter will be made solely in accordance with Section 6.4(a)(vii).

 

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(b)                                  After Subordination Period. Available Cash with respect to any Quarter after the Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of this Agreement, subject to Section 17-607 of the Delaware Act, shall be distributed as follows, except as otherwise required by Section 5.4(b) in respect of additional Partnership Securities issued pursuant thereto:

 

(i)                                      First, 98% to all Unitholders, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Unit then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;

 

(ii)                                   Second, 98% to all Unitholders, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the First Target Distribution over the Minimum Quarterly Distribution for such Quarter;

 

(iii)                                Third, 85% to all Unitholders, Pro Rata, 13% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Second Target Distribution over the First Target Distribution for such Quarter;

 

(iv)                               Fourth, 75% to all Unitholders, Pro Rata, 23% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Third Target Distribution over the Second Target Distribution for such Quarter; and

 

(v)                                  Thereafter, 50% to all Unitholders, Pro Rata, 48% to the holders of the Incentive Distribution Rights, Pro Rata, and 2% to the General Partner;

 

provided, however, if the Minimum Quarterly Distribution, the First Target Distribution, the Second Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the second sentence of Section 6.6, the distribution of Available Cash that is deemed to be Operating Surplus with respect to any Quarter will be made solely in accordance with Section 6.4(b)(v).

 

Section 6.5                                     Distributions of Available Cash from Capital Surplus.

 

Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 17-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, 98% to all Unitholders, Pro Rata, and 2% to the General Partner, until a hypothetical holder of a Common Unit acquired on the Effective Date has received with respect to such Common Unit, during the period since the Effective Date through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price. Available Cash that is deemed to be Capital Surplus shall then be distributed 98% to all Unitholders holding Common Units, Pro Rata, and 2% to the General Partner, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all

 

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Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4.

 

Section 6.6                                     Adjustment of Minimum Quarterly Distribution and Target Distribution Levels.

 

The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution, Third Target Distribution, Common Unit Arrearages and Cumulative Common Unit Arrearages shall be proportionately adjusted in the event of any distribution, combination or subdivision (whether effected by a distribution payable in Units or otherwise) of Units or other Partnership Securities. In the event of a distribution of Available Cash that is deemed to be from Capital Surplus, the then applicable Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution, shall be adjusted proportionately downward to equal the product obtained by multiplying the otherwise applicable Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution, as the case may be, by a fraction of which the numerator is the Unrecovered Capital of the Common Units immediately after giving effect to such distribution and of which the denominator is the Unrecovered Capital of the Common Units immediately prior to giving effect to such distribution.

 

Section 6.7            Special Provisions Relating to the Holders of Subordinated Units.

 

(a)           Except with respect to the right to vote on or approve matters requiring the vote or approval of a percentage of the holders of Outstanding Common Units and the right to participate in allocations of income, gain, loss and deduction and distributions made with respect to Common Units, the holder of a Subordinated Unit shall have all of the rights and obligations of a Unitholder holding Common Units hereunder; provided, however, that immediately upon the conversion of Subordinated Units into Common Units pursuant to Section 5.5, the Unitholder holding a Subordinated Unit shall possess all of the rights and obligations of a Unitholder holding Common Units hereunder, including the right to vote as a Common Unitholder and the right to participate in allocations of income, gain, loss and deduction and distributions made with respect to Common Units; provided, however, that such converted Subordinated Units shall remain subject to the provisions of Sections 6.1(d)(x) and 6.7(b).

 

(b)           The Unitholder holding a Subordinated Unit which has converted into a Common Unit pursuant to Section 5.5 shall not be issued a Common Unit Certificate pursuant to Section 4.1, and shall not be permitted to transfer its converted Subordinated Units to a Person which is not an Affiliate of the holder until such time as the General Partner determines, based on advice of counsel, that a converted Subordinated Unit should have, as a substantive matter, like intrinsic economic and federal income tax characteristics, in all material respects, to the intrinsic economic and federal income tax characteristics of an Initial Common Unit. In connection with the condition imposed by this Section 6.7(b), the General Partner may take whatever reasonable steps are required to provide economic uniformity to the converted Subordinated Units in preparation for a transfer of such converted Subordinated Units, including the application of Sections 5.3(c)(ii) and 6.1(d)(x); provided, however, that no such steps may be taken that would have a material adverse effect on the Unitholders holding Common Units represented by Common Unit Certificates.

 

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Section 6.8                                     Special Provisions Relating to the Holders of Incentive Distribution Rights.

 

Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Incentive Distribution Rights (a) shall (i) possess the rights and obligations provided in this Agreement with respect to a Limited Partner pursuant to Articles III and VII and (ii) have a Capital Account as a Partner pursuant to Section 5.3 and all other provisions related thereto and (b) shall not (i) be entitled to vote on any matters requiring the approval or vote of the holders of Outstanding Units, (ii) be entitled to any distributions other than as provided in Sections 6.4(a)(v), (vi) and (vii), 6.4(b)(iii), (iv) and (v), and 12.4 or (iii) be allocated items of income, gain, loss or deduction other than as specified in this Article VI.

 

Section 6.9            Phantom Units.

 

In connection with the Centennial Acquisition, the Partnership will issue certain Phantom Units (as defined in, and with the rights set forth in those certain Employment and Incentive Agreements between the Partnership, Operating Company, Centennial and Jack L. Eberhardt and Michael S. Stephens, to be executed at closing of the Centennial Acquisition (the “Employment Agreements”)). Such Phantom Units will be convertible into Common Units in accordance with and subject to the limitations set forth in those Employment Agreements. The Partnership shall abide by all the terms and conditions of the Employment Agreements regarding the Phantom Units, including, without limitation, accrual and deposit of distributions allocable to the Phantom Units to be maintained by the Partnership in a segregated interest-bearing account (“Phantom Account”) prior to conversion thereof, and, upon conversion of such Phantom Units, distribution of the balance of the Phantom Account. Until the Phantom Units are converted into Common Units, if ever, there will be no allocations for tax purposes to the Phantom Units under this Agreement, including the allocations provided for under Section 6.2. of this Agreement. The allocations associated with any distributions made to the Phantom Account shall be allocated to the Unitholders, excluding the Phantom Units, as provided under this Agreement. Any Unitholder, excluding the Phantom Units, allocated net taxable income as a result of a distribution to the Phantom Account shall receive a tax distribution from the Phantom Account which shall not be less than the amount of net taxable income allocated to the Unitholder as a result of a distribution made to the Phantom Account for the taxable year (as determined for federal income tax purposes), multiplied by (i) the tax rate of that Unitholder with the highest marginal federal tax rate as set forth in Section 1 of the Code allocated net taxable income during the taxable year as a result of a distribution made to the Phantom Account; plus (ii) the tax rate of that Unitholder with the highest state income tax rate allocated net taxable income during the taxable year as a result of any distribution made to the Phantom Account, after taking into account the federal income tax deduction for such taxes, regardless of the actual federal or state tax rates applicable to such Unitholders. If, upon termination of a Unitholder’s interest in the Partnership, the General Partner, in its discretion, determines that a Unitholder received tax distributions pursuant to this Section 6.9 in excess of the Unitholder’s actual net tax liability, such Unitholder shall contribute such excess to the Partnership within ten (10) days of such Unitholder’s receipt of written notification of the same by the General Partner. Upon conversion of the Phantom Units, the Partnership will issue certificates representing the Common Units into which the Phantom Units converted, and such Common Units will have the same rights as other

 

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Common Units issued in connection with the Centennial Acquisition, including distributions to be made in the future with respect thereto (including, without limitation, Cumulative Common Unit Arrearages). Notwithstanding anything to the contrary contained in Section 10.2, if either Mr. Eberhardt or Mr. Stephens transfer such Common Units in compliance with Article IV, the transferee of such Common Units shall be admitted as a Substitute Limited Partner.

 

ARTICLE VII

 

MANAGEMENT AND OPERATION OF BUSINESS

 

Section 7.1            Management.

 

(a)           The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including, without limitation, the following:

 

(i)            the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;

 

(ii)           the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;

 

(iii)          the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);

 

(iv)          the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Partnership Group Members); the repayment or guarantee of obligations of the Partnership Group; and the making of capital contributions to any member of the Partnership Group;

 

(v)           the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under

 

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contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);

 

(vi)          the distribution of Partnership cash;

 

(vii)         the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;

 

(viii)        the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;

 

(ix)          the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Partnership Group Member from time to time) subject to the restrictions set forth in Section 2.4;

 

(x)           the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;

 

(xi)          the indemnification of any Person against liabilities and contingencies to the extent permitted by law;

 

(xii)         the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and

 

(xiii)        the undertaking of any action in connection with the Partnership’s participation in any Partnership Group Member as a member or partner.

 

(b)           Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Partnership Group Member; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Partnership Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement, shall

 

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not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.

 

Section 7.2            Certificate of Limited Partnership.

 

The General Partner caused the Certificate of Limited Partnership to be filed with the Secretary of State of the State of Delaware as required by the Delaware Act. The General Partner shall use all reasonable efforts to cause to be filed such other certificates or documents as may be determined by the General Partner in its sole discretion to be reasonable and necessary or appropriate for the formation, continuation, qualification and operation of a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Delaware or any other state in which the Partnership may elect to do business or own property. To the extent that such action is determined by the General Partner in its sole discretion to be reasonable and necessary or appropriate, the General Partner shall file amendments to and restatements of the Certificate of Limited Partnership and do all things to maintain the Partnership as a limited partnership (or a partnership or other entity in which the limited partners have limited liability) under the laws of the State of Delaware or of any other state in which the Partnership may elect to do business or own property. Subject to the terms of Section 3.3(a), the General Partner shall not be required, before or after filing, to deliver or mail a copy of the Certificate of Limited Partnership, any qualification document or any amendment thereto to any Limited Partner.

 

Section 7.3            Restrictions on the General Partner’s Authority.

 

(a)           Except as otherwise provided in this Agreement, the General Partner may not, without written approval of the specific act by holders of all of the Outstanding Limited Partner Interests or by other written instrument executed and delivered by holders of all of the Outstanding Limited Partner Interests subsequent to the date of this Agreement, take any action in contravention of this Agreement, including (i) committing any act that would make it impossible to carry on the ordinary business of the Partnership; (ii) possessing Partnership property, or assigning any rights in specific Partnership property, for other than a Partnership purpose; (iii) admitting a Person as a Partner other than in compliance with Section 5.4 or as permitted under Section 10.2 and Section 10.4; (iv) amending this Agreement in any manner other than in compliance with Section 6.2(c) or in compliance with Article XIII, as applicable; or (v) transferring its interest as a general partner of the Partnership other than in compliance with Section 4.5.

 

(b)           Except as provided in Article XII, the General Partner may not sell, exchange or otherwise dispose of all or substantially all of the Partnership’s assets in a single transaction or a series of related transactions (including by way of merger, consolidation or other combination) or approve on behalf of the Partnership the sale, exchange or other disposition of all or substantially all of the assets of the Operating Company and its subsidiaries taken as a whole without the approval of holders of a Unit Majority; provided however that this provision shall not preclude or limit the General Partner’s ability to mortgage, pledge, hypothecate or grant a security interest in all or substantially all of the assets of the Partnership or the Operating Company and shall not apply to any forced sale of any or all of the assets of the Partnership or the Operating Company pursuant to the foreclosure of, or other realization upon, any such encumbrance. Without the

 

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approval of holders of a Unit Majority, the General Partner shall not, on behalf of the Partnership, (i) consent to any amendment to the Operating Company Agreement or, except as expressly permitted by Section 7.9(d), take any action permitted to be taken by a member of the Operating Company, in either case, that would adversely affect the Limited Partners (including any particular class of Partnership Interests as compared to any other class of Partnership Interests) in any material respect or (ii) except as permitted under this Agreement, elect or cause the Partnership to elect a successor general partner of the Partnership.

 

Section 7.4            Reimbursement of the General Partner.

 

(a)           Except as provided in this Section 7.4 and elsewhere in this Agreement, the General Partner shall not be compensated for its services as a general partner or managing member of any Partnership Group Member.

 

(b)           The General Partner shall be reimbursed on a monthly basis, or such other reasonable basis as the General Partner may determine in its sole discretion, for (i) all direct and indirect expenses it incurs or payments it makes on behalf of the Partnership (including salary, bonus, incentive compensation and other amounts paid to any Person including Affiliates of the General Partner to perform services for the Partnership or for the General Partner in the discharge of its duties to the Partnership), and (ii) all other necessary or appropriate expenses allocable to the Partnership or otherwise reasonably incurred by the General Partner in connection with operating the Partnership’s business (including expenses allocated to the General Partner by its Affiliates). The General Partner shall determine the expenses that are allocable to the Partnership in any reasonable manner determined by the General Partner in its sole discretion. Reimbursements pursuant to this Section 7.4 shall be in addition to any reimbursement to the General Partner as a result of indemnification pursuant to Section 7.7.

 

(c)           The General Partner, in its sole discretion and without the approval of the Limited Partners (who shall have no right to vote in respect thereof), may propose and adopt on behalf of the Partnership employee benefit plans, employee programs and employee practices (including plans, programs and practices involving the issuance of Partnership Securities or options to purchase or rights, warrants or appreciation rights relating to Partnership Securities), or cause the Partnership to issue Partnership Securities in connection with, or pursuant to, any employee benefit plan, employee program or employee practice maintained or sponsored by the General Partner or any of its Affiliates, in each case for the benefit of employees of the General Partner, any Partnership Group Member or any Affiliate, or any of them, in respect of services performed, directly or indirectly, for the benefit of the Partnership Group. The Partnership agrees to issue and sell to the General Partner or any of its Affiliates any Partnership Securities that the General Partner or such Affiliates are obligated to provide to any employees pursuant to any such employee benefit plans, employee programs or employee practices. Expenses incurred by the General Partner in connection with any such plans, programs and practices (including the net cost to the General Partner or such Affiliates of Partnership Securities purchased by the General Partner or such Affiliates from the Partnership to fulfill options or awards under such plans, programs and practices) shall be reimbursed in accordance with Section 7.4(b). Any and all obligations of the General Partner under any employee benefit plans, employee programs or employee practices adopted by the General Partner as permitted by this Section 7.4(c) shall constitute obligations of the General Partner hereunder and shall be assumed by any successor

 

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General Partner approved pursuant to Section 11.1 or 11.2 or the transferee of or successor to all of the General Partner’s General Partner Interest pursuant to Section 4.5.

 

Section 7.5            Outside Activities.

 

(a)           After the Effective Date, the General Partner, for so long as it is the General Partner of the Partnership (i) agrees that its sole business will be to act as a general partner or managing member, as the case may be, of the Partnership and any other partnership or limited liability company of which the Partnership or the Operating Company is, directly or indirectly, a partner or member and to undertake activities that are ancillary or related thereto (including being a limited partner in the Partnership), and (ii) shall not engage in any business or activity or incur any debts or liabilities except in connection with or incidental to (A) its performance as general partner or managing member of one or more Partnership Group Members or (B) the acquiring, owning or disposing of debt or equity securities in any Partnership Group Member.

 

(b)           Anything in this Agreement to the contrary notwithstanding, to the extent that provisions of Sections 7.7, 7.8, 7.9, 7.10 or other Sections of this Agreement purport or are interpreted to have the effect of restricting the fiduciary duties that might otherwise, as a result of Delaware or other applicable law, be owed by the General Partner to the Partnership and its Limited Partners, or to constitute a waiver or consent by the Limited Partners to any such restriction, such provisions shall be inapplicable and have no effect in determining whether the General Partner has complied with its fiduciary duties in connection with determinations made by it under this Section 7.5.

 

Section 7.6                                     Loans from the General Partner; Loans or Contributions from the Partnership; Contracts with Affiliates; Certain Restrictions on the General Partner.

 

(a)           The General Partner or any of its Affiliates may lend to any Partnership Group Member, and any Partnership Group Member may borrow from the General Partner or any of its Affiliates, funds needed or desired by the Partnership Group Member for such periods of time and in such amounts as the General Partner may determine; provided, however, that in any such case the lending party may not charge the borrowing party interest at a rate greater than the rate that would be charged the borrowing party or impose terms less favorable to the borrowing party than would be charged or imposed on the borrowing party by unrelated lenders on comparable loans made on an arm’s-length basis (without reference to the lending party’s financial abilities or guarantees). The borrowing party shall reimburse the lending party for any costs (other than any additional interest costs) incurred by the lending party in connection with the borrowing of such funds. For purposes of this Section 7.6(a) and Section 7.6(b), the term “Partnership Group Member” shall include any Affiliate of a Partnership Group Member that is controlled by the Partnership Group Member. No Partnership Group Member may lend funds to the General Partner or any of its Affiliates (other than another Partnership Group Member).

 

(b)           The Partnership may lend or contribute to any Partnership Group Member, and any Partnership Group Member may borrow from the Partnership, funds on terms and conditions established in the sole discretion of the General Partner; provided, however, that the Partnership may not charge the Partnership Group Member interest at a rate less than the rate that would be

 

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charged to the Partnership Group Member (without reference to the General Partner’s financial abilities or guarantees) by unrelated lenders on comparable loans. The foregoing authority shall be exercised by the General Partner in its sole discretion and shall not create any right or benefit in favor of any Partnership Group Member or any other Person.

 

(c)           The General Partner may itself, or may enter into an agreement with any of its Affiliates to, render services to a Partnership Group Member or to the General Partner in the discharge of its duties as General Partner of the Partnership. Any services rendered to a Partnership Group Member by the General Partner or any of its Affiliates shall be on terms that are fair and reasonable to the Partnership; provided, however, that the requirements of this Section 7.6(c) shall be deemed satisfied as to (i) any transaction, the terms of which are no less favorable to the Partnership Group than those generally being provided to or available from unrelated third parties or (ii) any transaction that, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the Partnership Group), is equitable to the Partnership Group. The provisions of Section 7.4 shall apply to the rendering of services described in this Section 7.6(c).

 

(d)           The Partnership Group may transfer assets to joint ventures, other partnerships, corporations, limited liability companies or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions as are consistent with this Agreement and applicable law.

 

(e)           Neither the General Partner nor any of its Affiliates shall sell, transfer or convey any property to, or purchase any property from, the Partnership, directly or indirectly, except pursuant to transactions that are fair and reasonable to the Partnership; provided, however, that the requirements of this Section 7.6(e) shall be deemed to be satisfied as to (i) any transaction, the terms of which are no less favorable to the Partnership than those generally being provided to or available from unrelated third parties, or (ii) any transaction that, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the Partnership), is equitable to the Partnership.

 

(f)            The General Partner and its Affiliates will have no obligation to permit any Partnership Group Member to use any facilities or assets of the General Partner and its Affiliates, except as may be provided in contracts entered into from time to time specifically dealing with such use, nor shall there be any obligation on the part of the General Partner or its Affiliates to enter into such contracts.

 

Section 7.7            Indemnification.

 

(a)           To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, all Indemnitees shall be indemnified and held harmless by the Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, 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; provided, that in each case the Indemnitee acted in good faith and in a manner that such

 

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Indemnitee reasonably believed to be in, or (in the case of a Person other than the General Partner) not opposed to, the best interests of the Partnership 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. Any indemnification pursuant to this Section shall be made only out of the assets of the Partnership, it being agreed that the General Partner shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate such indemnification.

 

(b)           To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7.7(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Partnership of any 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 7.7.

 

(c)           The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the holders of Outstanding Limited Partner Interests, as a matter of law or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(d)           The Partnership may purchase and maintain (or reimburse the General Partner or its Affiliates for the cost of) insurance, on behalf of the General Partner, its Affiliates and such other Persons as the General Partner shall determine, against any liability that may be asserted against or expense that may be incurred by such Person in connection with the Partnership’s activities or such Person’s activities on behalf of the Partnership, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(e)           For purposes of this Section 7.7, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7.7(a); and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is in, or not opposed to, the best interests of the Partnership.

 

(f)            In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

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(g)           An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 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.

 

(h)           The provisions of this Section 7.7 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.

 

(i)            No amendment, modification or repeal of this Section 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Partnership, nor the obligations of the Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7.7 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.

 

Section 7.8            Liability of Indemnitees.

 

(a)           Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the Partnership, the Limited Partners, the Assignees or any other Persons who have acquired interests in the Partnership Securities, for losses sustained or liabilities incurred as a result of any act or omission if such Indemnitee acted in good faith.

 

(b)           Subject to its obligations and duties as General Partner set forth in Section 7.1(a), the General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents, and the General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by the General Partner in good faith.

 

(c)           To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or to the Partners, the General Partner and any other Indemnitee acting in connection with the Partnership’s business or affairs shall not be liable to the Partnership or to any Partner for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or otherwise modify the duties and liabilities of an Indemnitee otherwise existing at law or in equity, are agreed by the Partners to replace such other duties and liabilities of such Indemnitee.

 

(d)           Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability to the Partnership, the Limited Partners, the General Partner, and the Partnership’s and General Partner’s directors, officers and employees under this Section 7.8 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.

 

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Section 7.9                                     Other Matters Concerning the General Partner.

 

(a)                                  The General Partner 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.

 

(b)                                  The General Partner 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 to be taken in reliance upon the opinion (including an Opinion of Counsel) of such Persons as to matters that the General Partner 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.

 

(c)                                   The General Partner shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly authorized officers, a duly appointed attorney or attorneys-in-fact or the duly authorized officers of the Partnership.

 

(d)                                  Any standard of care and duty imposed by this Agreement or under the Delaware Act or any applicable law, rule or regulation shall be modified, waived or limited, to the extent permitted by law, as required to permit the General Partner to act under this Agreement or any other agreement contemplated by this Agreement and to make any decision pursuant to the authority prescribed in this Agreement, so long as such action is reasonably believed by the General Partner to be in, or not inconsistent with, the best interests of the Partnership.

 

Section 7.10                              Reliance by Third Parties.

 

Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner and any officer of the General Partner authorized by the General Partner to act on behalf of and in the name of the Partnership has full power and authority to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any authorized contracts on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner or any such officer as if it were the Partnership’s sole party in interest, both legally and beneficially. Each Limited Partner hereby waives any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the General Partner or any such officer in connection with any such dealing. In no event shall any Person dealing with the General Partner or any such officer or its representatives be obligated to ascertain that the terms of the Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General Partner or any such officer or its representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (c) such certificate, document or instrument was duly executed and

 

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delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.

 

ARTICLE VIII

 

BOOKS, RECORDS, ACCOUNTING AND REPORTS

 

Section 8.1                                     Records and Accounting.

 

The General Partner shall keep or cause to be kept at the principal office of the Partnership appropriate books and records with respect to the Partnership’s business, including all books and records necessary to provide to the Limited Partners any information required to be provided pursuant to Section 3.3(a).

 

Section 8.2                                     Fiscal Year.

 

The fiscal year of the Partnership shall be a fiscal year ending December 31.

 

Section 8.3                                     Reports.

 

(a)                                  As soon as practicable, but in no event later than 120 days after the close of each fiscal year of the Partnership, the General Partner shall cause to be mailed or made available to each Record Holder of a Unit as of a date selected by the General Partner in its discretion, an annual report containing financial statements of the Partnership for such fiscal year of the Partnership, presented in accordance with U.S. GAAP, including a balance sheet and statements of operations, Partnership equity and cash flows. Such statements shall be audited at the discretion of the General Partner.

 

(b)                                  As soon as practicable, but in no event later than 90 days after the close of each Quarter except the last Quarter of each fiscal year, the General Partner shall cause to be mailed or made available to each Record Holder of a Unit, as of a date selected by the General Partner in its discretion, a report containing unaudited financial statements of the Partnership.

 

ARTICLE IX

 

TAX MATTERS

 

Section 9.1                                     Tax Returns and Information.

 

The Partnership shall timely file all returns of the Partnership that are required for federal, state and local income tax purposes on the basis of the accrual method and a taxable year ending on December 31. The tax information reasonably required by Record Holders for federal and state income tax reporting purposes with respect to a taxable year shall be furnished to them within 90 days of the close of the calendar year in which the Partnership’s taxable year ends. The classification, realization and recognition of income, gain, losses and deductions and other items shall be on the accrual method of accounting for federal income tax purposes.

 

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Section 9.2                                     Tax Elections.

 

(a)                                  The Partnership shall make the election under Section 754 of the Code in accordance with applicable regulations thereunder, subject to the reservation of the right to seek to revoke any such election upon the General Partner’s determination that such revocation is in the best interests of the Limited Partners. Notwithstanding any other provision herein contained, for the purposes of computing the adjustments under Section 743(b) of the Code, the General Partner shall be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a Limited Partner Interest will be deemed to be the lowest quoted closing price of the Limited Partner Interests on any national securities exchange (including the New York Stock Exchange, the American Stock Exchange, the NASDAQ, or successor or similar stock exchanges) on which such Limited Partner Interests are traded during the calendar month in which such transfer is deemed to occur pursuant to Section 6.2(g) without regard to the actual price paid by such transferee.

 

(b)                                  The Partnership shall elect to deduct expenses incurred in organizing the Partnership ratably over a sixty-month period as provided in Section 709 of the Code.

 

(c)                                   Except as otherwise provided herein, the General Partner shall determine whether the Partnership should make any other elections permitted by the Code.

 

Section 9.3                                     Tax Controversies.

 

Subject to the provisions hereof, the General Partner is designated as the Tax Matters Partner (as defined in the Code) and is authorized and required to represent the Partnership (at the Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Partnership funds for professional services and costs associated therewith. Each Partner agrees to cooperate with the General Partner and to do or refrain from doing any or all things reasonably required by the General Partner to conduct such proceedings.

 

Section 9.4                                     Withholding.

 

Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that it determines in its discretion to be necessary or appropriate to cause the Partnership and other Partnership Group Members to comply with any withholding requirements established under the Code or any other federal, state or local law including, without limitation, pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent that the Partnership is required or elects to withhold and pay over to any taxing authority any amount resulting from the allocation or distribution of income to any Partner or Assignee (including, without limitation, by reason of Section 1446 of the Code), the amount withheld may at the discretion of the General Partner be treated by the Partnership as a distribution of cash pursuant to Section 6.3 in the amount of such withholding from such Partner.

 

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ARTICLE X

 

ADMISSION OF PARTNERS

 

Section 10.1                              Admission of Initial Limited Partners.

 

Upon the issuance by the Partnership of Common Units, Subordinated Units and Incentive Distribution Rights to the General Partner, the General Partner admitted the Initial Limited Partners to the Partnership as Limited Partners in respect of the Common Units, Subordinated Units or Incentive Distribution Rights issued to them.

 

Section 10.2                              Admission of Substituted Limited Partner.

 

By transfer of a Limited Partner Interest in accordance with Article IV, the transferor shall be deemed to have given the transferee the right to seek admission as a Substituted Limited Partner subject to the conditions of, and in the manner permitted under, this Agreement. Such transferee shall become a Substituted Limited Partner (x) at such time as the General Partner consents thereto, which consent may be given or withheld in the General Partner’s discretion, and (y) when any such admission is shown on the books and records of the Partnership. If such consent is withheld, such transferee shall be an Assignee. An Assignee shall have an interest in the Partnership equivalent to that of a Limited Partner with respect to allocations and distributions, including liquidating distributions, of the Partnership. With respect to voting rights attributable to Limited Partner Interests that are held by Assignees, the General Partner shall be deemed to be the Limited Partner with respect thereto and shall, in exercising the voting rights in respect of such Limited Partner Interests on any matter.

 

Section 10.3                              Admission of Successor General Partner.

 

A successor General Partner approved pursuant to Section 11.1 or 11.2 or the transferee of or successor to all of the General Partner Interest pursuant to Section 4.5 who is proposed to be admitted as a successor General Partner shall be admitted to the Partnership as the General Partner, effective immediately prior to the withdrawal or removal of the predecessor or transferring General Partner, pursuant to Section 11.1 or 11.2 or the transfer of the General Partner Interest pursuant to Section 4.5, provided, however, that no such successor shall be admitted to the Partnership until compliance with the terms of Section 4.5 has occurred and such successor has executed and delivered such other documents or instruments as may be required to effect such admission. Any such successor shall, subject to the terms hereof, carry on the business of the members of the Partnership Group without dissolution.

 

Section 10.4                              Admission of Additional Limited Partners.

 

(a)                                  A Person (other than the General Partner, an Initial Limited Partner or a Substituted Limited Partner) who makes a Capital Contribution to the Partnership in accordance with this Agreement shall be admitted to the Partnership as an Additional Limited Partner only upon furnishing to the General Partner

 

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(i)                                      evidence of acceptance in form satisfactory to the General Partner of all of the terms and conditions of this Agreement, including the power of attorney granted in Section 2.6, and

 

(ii)                                   such other documents or instruments as may be required in the discretion of the General Partner to effect such Person’s admission as an Additional Limited Partner.

 

(b)                                  Notwithstanding anything to the contrary in this Section 10.4, no Person shall be admitted as an Additional Limited Partner without the consent of the General Partner, which consent may be given or withheld in the General Partner’s discretion. The admission of any Person as an Additional Limited Partner shall become effective on the date upon which the name of such Person is recorded as such in the books and records of the Partnership, following the consent of the General Partner to such admission.

 

Section 10.5                              Amendment of Agreement and Certificate of Limited Partnership.

 

To effect the admission to the Partnership of any Partner, the General Partner shall take all steps necessary and appropriate under the Delaware Act to amend the records of the Partnership to reflect such admission and, if necessary, to prepare as soon as practicable an amendment to this Agreement and, if required by law, the General Partner shall prepare and file an amendment to the Certificate of Limited Partnership, and the General Partner may for this purpose, among others, exercise the power of attorney granted pursuant to Section 2.6.

 

ARTICLE XI

 

WITHDRAWAL OR REMOVAL OF PARTNERS

 

Section 11.1                              Withdrawal of the General Partner.

 

(a)                                  The General Partner shall be deemed to have withdrawn from the Partnership upon the occurrence of any one of the following events (each such event herein referred to as an “Event of Withdrawal”);

 

(i)                                      The General Partner voluntarily withdraws from the Partnership;

 

(ii)                                   The General Partner transfers all of its rights as General Partner pursuant to Section 4.5;

 

(iii)                                The General Partner is removed pursuant to Section 11.2;

 

(iv)                               The General Partner (A) makes a general assignment for the benefit of creditors; (B) files a voluntary bankruptcy petition for relief under Chapter 7 of the United States Bankruptcy Code; (C) files a petition or answer seeking for itself a liquidation, dissolution or similar relief (but not a reorganization) under any law; (D) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the General Partner in a proceeding of the type described in clauses (A)-(C) of this Section 11.1(a)(iv); or (E) seeks, consents to or acquiesces in the

 

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appointment of a trustee (but not a debtor-in-possession), receiver or liquidator of the General Partner or of all or any substantial part of its properties;

 

(v)                                  A final and non-appealable order of relief under Chapter 7 of the United States Bankruptcy Code is entered by a court with appropriate jurisdiction pursuant to a voluntary or involuntary petition by or against the General Partner; or

 

(vi)                               (A) in the event the General Partner is a corporation, a certificate of dissolution or its equivalent is filed for the General Partner, or 90 days expire after the date of notice to the General Partner of revocation of its charter without a reinstatement of its charter, under the laws of its state of incorporation; (B) in the event the General Partner is a partnership or a limited liability company, the dissolution and commencement of winding up of the General Partner; (C) in the event the General Partner is acting in such capacity by virtue of being a trustee of a trust, the termination of the trust; (D) in the event the General Partner is a natural person, his death or adjudication of incompetency; and (E) otherwise in the event of the termination of the General Partner.

 

(b)                                  If the Event of Withdrawal is under Section 11.1(a)(i), the General Partner shall give the Limited Partners not less than 90 days advance written notice of its intention to so withdraw. Upon any other Event of Withdrawal, other than pursuant to Sections 11.1(a)(iii) or (vi)(E), in which case no notice is required, the General Partner shall give the Limited Partners notice of such event as soon as reasonably practical but no event shall the requisite notice be given more than 10 days after the occurrence of the applicable Event of Withdraw.

 

(c)                                   Withdrawal of the General Partner from the Partnership upon the occurrence of an Event of Withdrawal, in and of itself, shall not constitute a breach of this Agreement or result in the dissolution of the Partnership.

 

(d)                                  Following the receipt of notice of an Event of Withdrawal under Section 11.1, the holders of a Unit Majority, may, prior to the effective date of such withdrawal, elect a successor General Partner. The Person so elected as successor General Partner shall automatically become the successor general partner. If, prior to the effective date of the General Partner’s withdrawal, a successor is not selected by the Unitholders as provided herein, the Partnership shall be dissolved in accordance with Section 12.1. Any successor General Partner elected in accordance with the terms of this Section 11.1 shall be subject to the provisions of Section 10.3.

 

Section 11.2                              Removal of the General Partner.

 

The General Partner may be removed if such removal is approved by the Unitholders holding all of the Outstanding Units (including Units held by the General Partner and its Affiliates). Any such action by such holders for removal of the General Partner must also provide for the election of a successor General Partner. Such removal shall be effective immediately following the admission of a successor General Partner pursuant to Section 10.3. The removal of the General Partner shall also automatically constitute the removal of the General Partner as general partner or managing member, to the extent applicable, of the other Partnership Group Members of which the General Partner is a general partner or a managing member. If a

 

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Person is elected as a successor General Partner in accordance with the terms of this Section 11.2, such Person shall, upon admission pursuant to Section 10.3, automatically become a successor general partner or managing member, to the extent applicable, of the other Partnership Group Members of which the General Partner is a general partner or a managing member. The right of the holders of Outstanding Units to remove the General Partner shall not exist or be exercised unless the Partnership has received an opinion opining as to the matters permitting the removal. Any successor General Partner elected in accordance with the terms of this Section 11.2 shall be subject to the provisions of Section 10.3.

 

Section 11.3                              Interest of Departing Partner and Successor General Partner.

 

(a)                                  In the event of (i) withdrawal of the General Partner under circumstances where such withdrawal does not violate this Agreement or (ii) removal of the General Partner by the holders of Outstanding Units under circumstances where Cause does not exist, if the successor General Partner is elected in accordance with the terms of Section 11.1 or 11.2, the Departing Partner shall have the option, exercisable prior to the effective date of the departure of such Departing Partner, to require its successor to purchase its General Partner Interest and its general partner interest (or equivalent interest), if any, in the other Partnership Group Members and all of its Incentive Distribution Rights (collectively, the “Combined Interest”) in exchange for an amount in cash equal to the fair market value of such Combined Interest, such amount to be determined and payable as of the effective date of its departure. If the General Partner is removed by the Unitholders under circumstances where Cause exists or if the General Partner withdraws under circumstances where such withdrawal violates this Agreement, and if a successor General Partner is elected in accordance with the terms of Section 11.1 or 11.2, such successor shall have the option, exercisable prior to the effective date of the departure of such Departing Partner, to purchase the Combined Interest for such fair market value of such Combined Interest of the Departing Partner. In either event, the Departing Partner shall be entitled to receive all reimbursements due such Departing Partner pursuant to Section 7.4, including any employee-related liabilities (including severance liabilities), incurred in connection with the termination of any employees employed by the Departing Partner for the benefit of the Partnership or the other Partnership Group Members.

 

For purposes of this Section 11.3(a), the fair market value of the Departing Partner’s Combined Interest shall be determined by agreement between the Departing Partner and its successor or, failing agreement within 30 days after the effective date of such Departing Partner’s departure, by an independent investment banking firm or other independent expert selected by the Departing Partner and its successor, which, in turn, may rely on other experts, and the determination of which shall be conclusive as to such matter. If such parties cannot agree upon one independent investment banking firm or other independent expert within 45 days after the effective date of such departure, then the Departing Partner shall designate an independent investment banking firm or other independent expert, the Departing Partner’s successor shall designate an independent investment banking firm or other independent expert, and such firms or experts shall mutually select a third independent investment banking firm or independent expert, which third independent investment banking firm or other independent expert shall determine the fair market value of the Combined Interest of the Departing Partner. In making its determination, such third independent investment banking firm or other independent expert may consider the then current trading price of Units on any National Securities Exchange on which Units are then

 

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listed, the value of the Partnership’s assets, the rights and obligations of the Departing Partner and other factors it may deem relevant.

 

(b)                                  If the Combined Interest is not purchased in the manner set forth in Section 11.3(a), the Departing Partner (or its transferee) shall become a Limited Partner and its Combined Interest shall be converted into Common Units pursuant to a valuation made by an investment banking firm or other independent expert selected pursuant to Section 11.3(a), without reduction in such Partnership Interest (but subject to proportionate dilution by reason of the admission of its successor). Any successor General Partner shall indemnify the Departing Partner (or its transferee) as to all debts and liabilities of the Partnership arising on or after the date on which the Departing Partner (or its transferee) becomes a Limited Partner. For purposes of this Agreement, conversion of the Combined Interest of the Departing Partner to Common Units will be characterized as if the Departing Partner (or its transferee) contributed its Combined Interest to the Partnership in exchange for the newly issued Common Units.

 

(c)                                   If a successor General Partner is elected in accordance with the terms of Section 11.1 or 11.2 and the option described in Section 11.3(a) is not exercised by the party entitled to do so, the successor General Partner shall, at the effective date of its admission to the Partnership, contribute to the Partnership cash in the amount equal to 2/98ths of the Net Agreed Value of the Partnership’s assets on such date. In such event, such successor General Partner shall, subject to the following sentence, be entitled to 2% of all Partnership allocations and distributions to which the Departing Partner was entitled. In addition, the successor General Partner shall cause this Agreement to be amended to reflect that, from and after the date of such successor General Partner’s admission, the successor General Partner’s interest in all Partnership distributions and allocations shall be 2%.

 

Section 11.4                              Termination of Subordination Period, Conversion of Subordinated Units and Extinguishment of Cumulative Common Unit Arrearages.

 

Notwithstanding any provision of this Agreement, if the General Partner is removed as general partner of the Partnership under circumstances where Cause does not exist and Units held by the General Partner and its Affiliates are not voted in favor of such removal, (i) the Subordination Period will end and all Outstanding Subordinated Units will immediately and automatically convert into Common Units on a one-for-one basis and (ii) all Cumulative Common Unit Arrearages on the Common Units will be extinguished.

 

Section 11.5                              Withdrawal of Limited Partners.

 

No Limited Partner shall have any right to withdraw from the Partnership; provided, however, that when a transferee of a Limited Partner’s Limited Partner Interest becomes a Record Holder of the Limited Partner Interest so transferred, such transferring Limited Partner shall cease to be a Limited Partner with respect to the Limited Partner Interest so transferred.

 

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ARTICLE XII

 

DISSOLUTION AND LIQUIDATION

 

Section 12.1                              Dissolution.

 

The Partnership shall not be dissolved by the admission of Substituted Limited Partners or Additional Limited Partners or by the admission of a successor General Partner in accordance with the terms of this Agreement. Upon the removal or withdrawal of the General Partner, if a successor General Partner is elected pursuant to Section 11.1 or 11.2, the Partnership shall not be dissolved and such successor General Partner shall continue the business of the Partnership. The Partnership shall dissolve, and (subject to Section 12.2) its affairs shall be wound up, upon:

 

(a)                                  an Event of Withdrawal of the General Partner as provided in Section 11.1(a) (other than Section 11.1(a)(ii)), unless a successor is elected and an Opinion of Counsel is received as provided in Section 11.1(b) or 11.2 and such successor is admitted to the Partnership pursuant to Section 10.3;

 

(b)                                  an election to dissolve the Partnership by the General Partner that is approved by the holders of a Unit Majority;

 

(c)                                   the entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Delaware Act; or

 

(d)                                  the sale of all or substantially all of the assets and properties of the Partnership Group.

 

Section 12.2                              Continuation of the Business of the Partnership After Dissolution.

 

Upon (a) dissolution of the Partnership following an Event of Withdrawal caused by the withdrawal or removal of the General Partner as provided in Section 11.1(a)(i) or (iii) and the failure of the Partners to select a successor to such Departing Partner pursuant to Section 11.1 or 11.2, then within 90 days thereafter, or (b) dissolution of the Partnership upon an event constituting an Event of Withdrawal as defined in Section 11.1(a)(iv), (v) or (vi), then, to the maximum extent permitted by law, within 180 days thereafter, the holders of a Unit Majority may elect to reconstitute the Partnership and continue its business on the same terms and conditions set forth in this Agreement by forming a new limited partnership on terms identical to those set forth in this Agreement and having as the successor General partner a Person approved by the holders of a Unit Majority. Unless such an election is made within the applicable time period as set forth above, the Partnership shall conduct only activities necessary to wind up its affairs. If such an election is so made, then:

 

(i)                                      the reconstituted Partnership shall continue unless earlier dissolved in accordance with this Article XII;

 

(ii)                                   if the successor General Partner is not the former General Partner, then the interest of the former General Partner shall be treated in the manner provided in Section 11.3; and

 

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(iii)                                all necessary steps shall be taken to cancel this Agreement and the Certificate of Limited Partnership and to enter into and, as necessary, to file a new partnership agreement and certificate of limited partnership, and the successor General Partner may for this purpose exercise the powers of attorney granted the General Partner pursuant to Section 2.6; provided, that the right of the holders of a Unit Majority to approve a successor General Partner and to reconstitute and to continue the business of the Partnership shall not exist and may not be exercised unless the Partnership has received an Opinion of Counsel that (x) the exercise of the right would not result in the loss of limited liability of any Limited Partner and (y) neither the Partnership, the reconstituted limited partnership nor the Operating Company or any other Partnership Group Member would be treated as an association taxable as a corporation or otherwise be taxable as an entity for federal income tax purposes upon the exercise of such right to continue.

 

Section 12.3                              Liquidator.

 

Upon dissolution of the Partnership, unless the Partnership is continued under an election to reconstitute and continue the Partnership pursuant to Section 12.2, the General Partner shall select one or more Persons to act as Liquidator. The Liquidator (if other than the General Partner) shall be entitled to receive such compensation for its services as may be approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units voting as a single class. The Liquidator (if other than the General Partner) shall agree not to resign at any time without 15 days’ prior notice and may be removed at any time, with or without cause, by notice of removal approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units voting as a single class. Upon dissolution, removal or resignation of the Liquidator, a successor and substitute Liquidator (who shall have and succeed to all rights, powers and duties of the original Liquidator) shall within 30 days thereafter be approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units voting as a single class. The right to approve a successor or substitute Liquidator in the manner provided herein shall be deemed to refer also to any such successor or substitute Liquidator approved in the manner herein provided. Except as expressly provided in this Article XII, the Liquidator approved in the manner provided herein shall have and may exercise, without further authorization or consent of any of the parties hereto, all of the powers conferred upon the General Partner under the terms of this Agreement (but subject to all of the applicable limitations, contractual and otherwise, upon the exercise of such powers, other than the limitation on sale set forth in Section 7.3(b)) to the extent necessary or desirable in the good faith judgment of the Liquidator to carry out the duties and functions of the Liquidator hereunder for and during such period of time as shall be reasonably required in the good faith judgment of the Liquidator to complete the winding up and liquidation of the Partnership as provided for herein.

 

Section 12.4                              Liquidation.

 

The Liquidator shall proceed to dispose of the assets of the Partnership, discharge its liabilities, and otherwise wind up its affairs in such manner and over such period as the Liquidator determines to be in the best interest of the Partners, subject to Section 17-804 of the Delaware Act and the following:

 

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(a)                                  The assets may be disposed of by public or private sale or by distribution in kind to one or more Partners on such terms as the Liquidator and such Partner or Partners may agree. If any property is distributed in kind, the Partner receiving the property shall be deemed for purposes of Section 12.4(c) to have received cash equal to its fair market value; and contemporaneously therewith, appropriate cash distributions must be made to the other Partners. The Liquidator may, in its absolute discretion, defer liquidation or distribution of the Partnership’s assets for a reasonable time if it determines that an immediate sale or distribution of all or some of the Partnership’s assets would be impractical or would cause undue loss to the Partners. The Liquidator may, in its absolute discretion, distribute the Partnership’s assets, in whole or in part, in kind if it determines that a sale would be impractical or would cause undue loss to the Partners.

 

(b)                                  Liabilities of the Partnership include amounts owed to the Liquidator as compensation for serving in such capacity (subject to the terms of Section 12.3) and amounts to Partners otherwise than in respect of their distribution rights under Article VI. With respect to any liability that is contingent, conditional or unmatured or is otherwise not yet due and payable, the Liquidator shall either settle such claim for such amount as it thinks appropriate or establish a reserve of cash or other assets to provide for its payment. When paid, any unused portion of the reserve shall be distributed as additional liquidation proceeds.

 

(c)                                   All property and all cash in excess of that required to discharge liabilities as provided in Section 12.4(b) shall be distributed to the Partners in accordance with, and to the extent of, the positive balances in their respective Capital Accounts, as determined after taking into account all Capital Account adjustments (other than those made by reason of distributions pursuant to this Section 12.4(c)) for the taxable year of the Partnership during which the liquidation of the Partnership occurs (with such date of occurrence being determined pursuant to Treasury Regulation Section 1.704-1 (b)(2)(ii)(g)), and such distribution shall be made by the end of such taxable year (or, if later, within 90 days after said date of such occurrence).

 

Section 12.5                              Cancellation of Certificate of Limited Partnership.

 

Upon the completion of the distribution of Partnership cash and property as provided in Section 12.4 in connection with the liquidation of the Partnership, the Partnership shall be terminated and the Certificate of Limited Partnership and all qualifications of the Partnership as a foreign limited partnership in jurisdictions other than the State of Delaware shall be canceled and such other actions as may be necessary to terminate the Partnership shall be taken.

 

Section 12.6                              Return of Contributions.

 

The General Partner shall not be personally liable for, and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate, the return of the Capital Contributions of the Limited Partners or Unitholders, or any portion thereof, it being expressly understood that any such return shall be made solely from Partnership assets.

 

Section 12.7                              Waiver of Partition.

 

To the maximum extent permitted by law, each Partner hereby waives any right to partition of the Partnership property.

 

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Section 12.8                              Capital Account Restoration.

 

No Limited Partner shall have any obligation to restore any negative balance in its Capital Account upon liquidation of the Partnership. The General Partner shall be obligated to restore any negative balance in its Capital Account upon liquidation of its interest in the Partnership by the end of the taxable year of the Partnership during which such liquidation occurs, or, if later, within 90 days after the date of such liquidation.

 

ARTICLE XIII

 

AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE

 

Section 13.1                              Amendment to be Adopted Solely by the General Partner.

 

Each Partner agrees that the General Partner, without the approval of any Partner or Assignee, may amend any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith, to reflect:

 

(a)                                  a change in the name of the Partnership, the location of the principal place of business of the Partnership, the registered agent of the Partnership or the registered office of the Partnership;

 

(b)                                  admission, substitution, withdrawal or removal of Partners in accordance with this Agreement;

 

(c)                                   a change that, in the sole discretion of the General Partner, is necessary or advisable to qualify or continue the qualification of the Partnership as a limited partnership or a partnership in which the Limited Partners have limited liability under the laws of any state or to ensure that the Partnership Group Members will not be treated as associations taxable as corporations or otherwise taxed as entities for federal income tax purposes;

 

(d)                                  a change that, in the discretion of the General Partner, (i) does 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, (ii) is necessary or advisable to satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in any federal or state statute (including the Delaware Act), or (iii) is required to effect the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement;

 

(e)                                   a change in the fiscal year or taxable year of the Partnership and any changes that, in the discretion of the General Partner, are necessary or advisable as a result of a change in the fiscal year or taxable year of the Partnership including, if the General Partner shall so determine, a change in the definition of “Quarter” and the dates on which distributions are to be made by the Partnership;

 

(f)                                    an amendment that is necessary, in the Opinion of Counsel, to prevent the Partnership, or the General Partner or its directors, officers, trustees or agents from in any manner being subjected to the provisions of the Investment Company Act of 1940, as amended,

 

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the Investment Advisers Act of 1940, as amended, or “plan asset” regulations adopted under the Employee Retirement Income Security Act of 1974, as amended, regardless of whether such are substantially similar to plan asset regulations currently applied or proposed by the United States Department of Labor;

 

(g)                                   subject to the terms of Section 13.1(d), an amendment that, in the discretion of the General Partner, is necessary or advisable in connection with the authorization of issuance of any class or series of Partnership Securities pursuant to Section 5.4;

 

(h)                                  any amendment expressly permitted in this Agreement to be made by the General Partner acting alone;

 

(i)                                      an amendment that, in the discretion of the General Partner, is necessary or advisable to reflect, account for and deal with appropriately the formation by the Partnership of, or investment by the Partnership in, any corporation, partnership, joint venture, limited liability company or other entity, in connection with the conduct by the Partnership of activities permitted by the terms of Section 2.4; or

 

(j)                                     any other amendments substantially similar to the foregoing.

 

Section 13.2                              Amendment Procedures.

 

Except as provided in Sections 13.1 and 13.3, all amendments to this Agreement shall be made in accordance with the following requirements. Amendments to this Agreement may be proposed only by or with the consent of the General Partner which consent may be given or withheld in its sole discretion. A proposed amendment shall be effective upon its approval by the holders of a Unit Majority, unless a greater or different percentage is required under this Agreement or by Delaware law. Each proposed amendment that requires the approval of the holders of a specified percentage of Outstanding Units shall be set forth in a writing that contains the text of the proposed amendment. If such an amendment is proposed, the General Partner shall seek the written approval of the requisite percentage of Outstanding Units or call a meeting of the Unitholders to consider and vote on such proposed amendment. The General Partner shall notify all Record Holders upon final adoption of any such proposed amendments.

 

Section 13.3                              Amendment Requirements.

 

(a)                                  Notwithstanding the provisions of Sections 13.1 and 13.2, no provision of this Agreement that establishes a percentage of Outstanding Units (including Units deemed owned by the General Partner) required to take any action shall be amended, altered, changed, repealed or rescinded in any respect that would have the effect of reducing such voting percentage unless such amendment is approved by the written consent or the affirmative vote of holders of Outstanding Units whose aggregate Outstanding Units constitute not less than the voting requirement sought to be reduced.

 

(b)                                  Notwithstanding the provisions of Sections 13.1 and 13.2, no amendment to this Agreement may (i) enlarge the obligations of any Limited Partner without its consent, unless such shall be deemed to have occurred as a result of an amendment approved pursuant to Section 13.3(c), (ii) enlarge the obligations of, restrict in any way any action by or rights of, or reduce in

 

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any way the amounts distributable, reimbursable or otherwise payable to, the General Partner or any of its Affiliates without its consent, which consent may be given or withheld in its sole discretion, (iii) change Section 12.1(b), or (iv) change the term of the Partnership or, except as set forth in Section 12.1(b), give any Person the right to dissolve the Partnership.

 

(c)                                   Without limitation of the General Partner’s authority to adopt amendments to this Agreement without the approval of any Partners or Assignees as contemplated in Section 13.1, any amendment that would have a material adverse effect on the rights or preferences of any class of Partnership Interests in relation to other classes of Partnership Interests must be approved by the holders of not less than a majority of the Outstanding Partnership Interests of the class affected.

 

(d)                                  Notwithstanding any other provision of this Agreement, except for amendments pursuant to Section 13.1, no amendments shall become effective without the approval of the holders of at least 90% of the Outstanding Units voting as a single class unless the Partnership obtains an Opinion of Counsel to the effect that such amendment will not affect the limited liability of any Limited Partner under applicable law; provided, however, that any amendment that adversely affects the holder of Outstanding Units shall not be effective as to such holder unless approved by such holder.

 

(e)                                   Except as provided in Section 13.1, this Section 13.3 shall only be amended with the approval of the holders of at least 100% of the Outstanding Units.

 

Section 13.4                              Special Meetings.

 

All acts of Limited Partners to be taken pursuant to this Agreement shall be taken in the manner provided in this Article XIII. Special meetings of the Limited Partners may be called by the General Partner or by Limited Partners owning 20%o or more of the Outstanding Units of the class or classes for which a meeting is proposed. Limited Partners shall call a special meeting by delivering to the General Partner one or more requests in writing stating that the signing Limited Partners wish to call a special meeting and indicating the general or specific purposes for which the special meeting is to be called. 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. A meeting shall be held at a time and place determined by the General Partner on a date not less than 10 days nor 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.

 

Section 13.5                              Notice of a Meeting.

 

Notice of a meeting called pursuant to Section 13.4 shall be given to the Record Holders of the class or classes of Units for which a meeting is proposed in writing by mail or other means

 

64



 

of written communication in accordance with Section 14.1. The notice shall be deemed to have been given at the time when deposited in the mail or sent by other means of written communication.

 

Section 13.6                              Record Date.

 

For purposes of determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners or to give approvals without a meeting as provided in Section 13.11 the General Partner may set a Record Date, which shall not be less than 10 nor more than 60 days before (a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed for trading, in which case the rule, regulation, guideline or requirement of such exchange shall govern) or (b) in the event that approvals are sought without a meeting, the date by which Limited Partners are requested in writing by the General Partner to give such approvals.

 

Section 13.7                              Adjournment.

 

When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting and a new Record Date need not be fixed, if the time and place thereof are announced at the meeting at which the adjournment is taken, unless such adjournment shall be for more than 45 days. At the adjourned meeting, the Partnership may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 45 days or if a new Record Date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given in accordance with this Article XIII.

 

Section 13.8                              Waiver of Notice; Approval of Meeting; Approval of Minutes.

 

The transactions of any meeting of Limited Partners, however called and noticed, and whenever held, shall be as valid as if it had occurred at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, Limited Partners representing such quorum who were present in person or by proxy and entitled to vote, sign a written waiver of notice or an approval of the holding of the meeting or an approval of the minutes thereof. All waivers and approvals shall be filed with the Partnership records or made a part of the minutes of the meeting. Attendance of a Limited Partner at a meeting shall constitute a waiver of notice of the meeting, except when the Limited Partner does not approve, at the beginning of the meeting, of the transaction of any business because the meeting is not lawfully called or convened; and except that attendance at a meeting is not a waiver of any right to disapprove the consideration of matters required to be included in the notice of the meeting, but not so included, if the disapproval is expressly made at the meeting.

 

Section 13.9                              Quorum.

 

The holders of a majority of the Outstanding Units of the class or classes for which a meeting has been called (including Outstanding Units deemed owned by the General Partner) represented in person or by proxy shall constitute a quorum at a meeting of Limited Partners of such class or classes unless any such action by the Limited Partners requires approval by holders of a greater percentage of such Units, in which case the quorum shall be such greater percentage. At any meeting of the Limited Partners duly called and held in accordance with this Agreement

 

65



 

at which a quorum is present, the act of Limited Partners holding Outstanding Units that in the aggregate represent a majority of the Outstanding Units entitled to vote and be present in person or by proxy at such meeting shall be deemed to constitute the act of all Limited Partners, unless a greater or different percentage is required with respect to such action under the provisions of this Agreement, in which case the act of the Limited Partners holding Outstanding Units that in the aggregate represent at least such greater or different percentage shall be required. The Limited Partners present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough Limited Partners to leave less than a quorum, if any action taken (other than adjournment) is approved by the required percentage of Outstanding Units specified in this Agreement (including Outstanding Units deemed owned by the General Partner). In the absence of a quorum any meeting of Limited Partners may be adjourned from time to time by the affirmative vote of holders of at least a majority of the Outstanding Units entitled to vote at such meeting (including Outstanding Units deemed owned by the General Partner) represented either in person or by proxy, but no other business may be transacted, except as provided in Section 13.7.

 

Section 13.10                       Conduct of a Meeting.

 

The General Partner shall have full power and authority concerning the manner of conducting any meeting of the Limited Partners or solicitation of approvals in writing, including the determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the requirements of Section 13.4, the conduct of voting, the validity and effect of any proxies and the determination of any controversies, votes or challenges arising in connection with or during the meeting or voting. The General Partner shall designate a Person to serve as chairman of any meeting and shall further designate a Person to take the minutes of any meeting. All minutes shall be kept with the records of the Partnership maintained by the General Partner. The General Partner may make such other regulations consistent with applicable law and this Agreement as it may deem advisable concerning the conduct of any meeting of the Limited Partners or solicitation of approvals in writing, including regulations in regard to the appointment of proxies, the appointment and duties of inspectors of votes and approvals, the submission and examination of proxies and other evidence of the right to vote, and the revocation of approvals in writing.

 

Section 13.11                       Action Without a Meeting.

 

If authorized by the General Partner, any action that may be taken at a meeting of the Limited Partners may be taken without a meeting if an approval in writing setting forth the action so taken is signed by Limited Partners owning not less than the minimum percentage of the Outstanding Units (including Units deemed owned by the General Partner) that would be necessary to authorize or take such action at a meeting at which all the Limited Partners were present and voted (unless such provision conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed for trading, in which case the rule, regulation, guideline or requirement of such exchange shall govern). Prompt notice of the taking of action without a meeting shall be given to the Limited Partners who have not approved in writing. The General Partner may specify that any written ballot submitted to Limited Partners for the purpose of taking any action without a meeting shall be returned to the Partnership within the time period, which shall be not less than 20 days, specified by the General Partner. If a ballot returned to the Partnership does not vote all of the Units held by the Limited

 

66



 

Partners, the Partnership shall be deemed to have failed to receive a ballot for the Units that were not voted. If approval of the taking of any action by the Limited Partners is solicited by any Person other than by or on behalf of the General Partner, the written approvals shall have no force and effect unless and until (a) they are deposited with the Partnership in care of the General Partner, (b) approvals sufficient to take the action proposed are dated as of a date not more than 90 days prior to the date sufficient approvals are deposited with the Partnership and (c) an Opinion of Counsel is delivered to the General Partner to the effect that the exercise of such right and the action proposed to be taken with respect to any particular matter (i) will not 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, and (ii) is otherwise permissible under the state statutes then governing the rights, duties and liabilities of the Partnership and the Partners. Should any action under this Section 13.11 be taken by less than all Partners, notice of that action shall promptly be sent to any Partners not participating in the taking of that action.

 

Section 13.12                       Voting and Other Rights.

 

(a)                                  Only those Record Holders of the Units on the Record Date set pursuant to Section 13.6 (and also subject to the limitations contained in the definition of “Outstanding”) shall be entitled to notice of, and to vote at, a meeting of Limited Partners or to act with respect to matters as to which the holders of the Outstanding Units have the right to vote or to act. All references in this Agreement to votes of, or other acts that may be taken by, the Outstanding Units shall be deemed to be references to the votes or acts of the Record Holders of such Outstanding Units.

 

(b)                                  With respect to Units that are held for a Person’s account by another Person (such as a broker, dealer, bank, trust company or clearing corporation, or an agent of any of the foregoing), in whose name such Units are registered, such other Person shall, in exercising the voting rights in respect of such Units on any matter, and unless the arrangement between such Persons provides otherwise, vote such Units in favor of, and at the direction of, the Person who is the beneficial owner, and the Partnership shall be entitled to assume it is so acting without further inquiry.

 

ARTICLE XIV

 

GENERAL PROVISIONS

 

Section 14.1                              Addresses and Notices.

 

Any notice, demand, request, report or proxy materials required or permitted to be given or made to a Partner or Assignee under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by other means of written communication to the Partner or Assignee at the address described below. Any notice, payment or report to be given or made to a Partner or Assignee hereunder shall be deemed conclusively to have been given or made, and the obligation to give such notice or report or to make such payment shall be deemed conclusively to have been fully satisfied, upon sending of such notice, payment or report to the Record Holder of such Partnership Securities at his

 

67



 

address as shown on the records of the Partnership or as otherwise shown on the records of the Partnership, regardless of any claim of any Person who may have an interest in such Partnership Securities by reason of any assignment or otherwise. An affidavit or certificate of making of any notice, payment or report in accordance with the provisions of this Section 14.1 executed by the General Partner shall be prima facie evidence of the giving or making of such notice, payment or report. If any notice, payment or report addressed to a Record Holder at the address of such Record Holder appearing on the books and records of the Partnership is returned by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver it, such notice, payment or report and any subsequent notices, payments and reports shall be deemed to have been duly given or made without further mailing (until such time as such Record Holder or another Person notifies the Partnership of a change in his address) if they are available for the Partner or Assignee at the principal office of the Partnership for a period of one year from the date of the giving or making of such notice, payment or report to the other Partners and Assignees. Any notice to the Partnership shall be deemed given if received by the General Partner at the principal office of the Partnership designated pursuant to Section 2.3. The General Partner may rely and shall be protected in relying on any notice or other document from a Partner, Assignee or other Person if believed by it to be genuine.

 

Section 14.2                              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 Agreement.

 

Section 14.3                              Binding Effect.

 

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.

 

Section 14.4                              Integration.

 

This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.

 

Section 14.5                              Creditors.

 

None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Partnership.

 

Section 14.6                              Waiver.

 

No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant, duty, agreement or condition.

 

68



 

Section 14.7                              Counterparts.

 

This Agreement may be executed in counterparts, all of which together shall constitute an agreement binding on all 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 Agreement immediately upon affixing its signature hereto or, in the case of a Person acquiring a Unit, upon accepting the certificate evidencing such Unit or executing and delivering a Transfer Application as herein described, independently of the signature of any other party.

 

Section 14.8                              Applicable Law.

 

This Agreement 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.

 

Section 14.9                              Invalidity of Provisions.

 

If any provision of this Agreement 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.

 

Section 14.10                       Consent of Partners.

 

Each Partner hereby expressly consents and agrees that, whenever in this Agreement it is specified that an action may be taken upon the affirmative vote or consent of less than all of the Partners, such action may be so taken upon the concurrence of less than all of the Partners and each Partner shall be bound by the results of such action.

 

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]

 

69


 

SIGNATURE PAGE TO AGREEMENT OF LIMITED PARTNERSHIP OF HIGH SIERRA ENERGY, LP

 

IN WITNESS WHEREOF, the General Partner has executed this Agreement as of the date first written above on behalf of itself as General Partner and on behalf of the Limited Partners as of the Effective Date pursuant to the powers of attorney previously granted to the General Partner by the Limited Partners and in conformity with the other rights and powers conferred upon the General Partner under the Company’s Second Amended and Restated Agreement of Limited Partnership.

 

 

HIGH SIERRA ENERGY GP, LLC

 

 

 

 

 

 

 

By:

/s/ Brian T. O’Neill

 

 

Name:

Brian T. O’Neill

 

 

Title:

Managing Director

 

70



 

EXHIBIT A

to

Agreement of Limited Partnership of

High Sierra Energy, LP

 

Certificate Evidencing Common Units

Representing Limited Partner Interests in

High Sierra Energy, LP

 




Exhibit 3.35

 

AMENDMENT NO. 1 TO

 

THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP

 

OF

 

HIGH SIERRA ENERGY, LP

 

This Amendment No. 1 (this “ Amendment ”) to the Third Amended and Restated Agreement of Limited Partnership (the “ Partnership Agreement ”) of High Sierra Energy, LP (the “ Partnership ”) is entered into effective as of May 11, 2011 by High Sierra Energy GP, LLC, a Colorado limited liability company (the “ General Partner ”), as general partner of the Partnership. Capitalized terms used but not defined herein are used as defined in the Partnership Agreement (as defined below).

 

WHEREAS , pursuant to Section 5.4 of the Partnership Agreement, the Partnership has the authority to issue additional Partnership Securities on such terms and conditions as shall be established by the General Partner in its sole discretion, all without the approval of any Limited Partners;

 

WHEREAS , pursuant to Section 5.4 of the Partnership Agreement, the Partnership issued Subordinated Units to certain persons as compensation for services to the Partnership and in connection with acquisitions of assets and businesses, including the Asset Purchase Agreement, dated as of July 31, 2007, between Barr Energy, LLC and High Sierra Energy Marketing, LLC;

 

WHEREAS , the rights, preferences and limitations of the Subordinated Units are set forth in the Partnership Agreement and those certain Certificates Evidencing Subordinated Units Representing Limited Partner Interests in High Sierra Energy, LP (the “ Subordinated Unit Certificates ”);

 

WHEREAS , pursuant to those certain Subordinated Unit Certificates, no distributions under the Partnership Agreement shall accrue to, be allocated to or be paid upon the Subordinated Units until such units have converted to Common Units;

 

WHEREAS , it was the intent of the Partnership at the time of the issuance of the Subordinated Units that the Partnership’s Net Income and Net Loss also not be allocated to Unitholders holding Subordinated Units;

 

WHEREAS , since the Subordinated Units were issued, the Partnership has not allocated Net Income and Net Loss to the Subordinated Units;

 

WHEREAS , Section 13.1(d)(iii) of the Partnership Agreement provides that the General Partner may amend any provision of the Partnership Agreement without the approval of any Partner or Assignee to reflect a change, that in the discretion of the General Partner, is required to effect the intent of the provisions of the Partnership Agreement; and

 



 

WHEREAS , acting pursuant to the power and authority granted to it under Section 13.1(d)(iii) of the Partnership Agreement, the General Partner has determined that the following amendment to the Partnership Agreement is required to effect the intent of the provisions of the Partnership Agreement with respect to the allocations of income and loss to the Subordinated Units.

 

NOW THEREFORE , the General Partner does hereby amend the Partnership Agreement as follows:

 

Section 1.                    Amendment . Article VI is hereby amended to add a new Section 6.1(e) as follows:

 

“(e)                             Subordinated Units . Net Income and Net Losses shall be allocated pursuant to Section 6.1(a) and Section 6.1(b) by assuming that, solely for purposes of Section 6.1(a) and Section 6.1(b), such Subordinated Units are not Outstanding for purposes of applying the terms “Percentage Interests” and “Unitholders.”

 

Section 2.                    General Authority . The appropriate officers of the General Partner are hereby authorized to make such further clarifying and conforming changes they deem necessary or appropriate, and to interpret the Partnership Agreement, to give effect to the intent and purpose of this Amendment.

 

Section 3.                    Ratification of the Partnership Agreement . Except as expressly modified and amended herein, all of the terms and conditions of the Partnership Agreement shall remain in full force and effect.

 

Section 4.                    Governing Law . This Amendment shall be governed by, and interpreted in accordance with, the laws of the State of Delaware, all rights and remedies being governed by such laws without regard to principles of conflicts of law.

 

IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.

 

 

GENERAL PARTNER:

 

 

 

HIGH SIERRA ENERGY GP, LLC

 

 

 

By:

/s/ Nicholas Aretakis

 

 

Nicholas Aretakis

 

 

Senior Vice President and Chief Financial Officer

 

 

 




Exhibit 3.36

 

 

Colorado Secretary of State

 

Date and Time: 09/15/2014 08:48 AM

Document must be filed electronically.

ID Number: 20141558772

Paper documents are not accepted.

 

Fees & forms are subject to change.

 

Document number: 20141558772

For more information or to print copies

 

Amount Paid: $1.00

of filed documents, visit www.sos.state.co.us.

 

 

 

 

ABOVE SPACE FOR OFFICE USE ONLY

 

Articles of Organization

filed pursuant to § 7-80-203 and § 7-80-204 of the Colorado Revised Statutes (C.R.S.)

 

1.     The domestic entity name of the limited liability company is

 

 

NGL Milan Investments, LLC.

 

(The name of a limited liability company must contain the term or abbreviation “limited liability company”, “ltd. liability company”, “limited liability co.”, “ltd. liability co.”, “limited”, “l.l.c.”, “llc”, or “ltd.”. See §7-90-601, C.R.S.)

 

(Caution : The use of certain terms or abbreviations are restricted by law. Read instructions for more information.)

 

2.     The principal office address of the limited liability company’s initial principal office is

 

Street address

 

3773 Cherry Creek North Drive

 

 

(Street number and name)

 

 

Suite 1000

 

 

Denver

CO

80209

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

 

 

 

 

 

United States

 

 

 

(Province — if applicable)

(Country)

 

 

Mailing address

 

(leave blank if same as street address)

(Street number and name or Post Office Box information)

 

 

 

 

 

 

 

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

.

 

(Province — if applicable)

(Country)

 

 

3.     The registered agent name and registered agent address of the limited liability company’s initial registered agent are

 

Name

 

 

 

 

(if an individual)

 

 

 

 

 

(Last)

(First)

(Middle)

(Suffix)

Or

 

 

 

 

 

 

 

 

 

(if an entity)

The Corporation Company

(Caution : Do not provide both an individual and an entity name.)

 

Street address

1675 Broadway

 

(Street number and name)

 

Suite 1200

 

.

 

Denver

CO

80202

 

(City)

(State)

(ZIP Code)

 

Mailing address

 

(leave blank if same as street address)

(Street number and name or Post Office Box information)

 

 

 

1



 

 

 

CO

.

 

(City)

(State)

(ZIP Code)

 

 

(The following statement is adopted by marking the box.)

x    The person appointed as registered agent has consented to being so appointed.

 

4.     The true name and mailing address of the person forming the limited liability company are

 

Name

 

 

 

 

(if an individual)

Laughlin

William

G.

 

 

(Last)

(First)

(Middle)

(Suffix)

or

 

 

 

 

 

 

 

 

 

(if an entity)

 

 

 

 

(Caution : Do not provide both an individual and an entity name.)

 

 

 

 

Mailing address

3773 Cherry Creek North Drive

 

(Street number and name or Post Office Box information)

 

 

 

 

 

Suite 1000

 

 

 

Denver

CO

80209

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

 

 

 

United States.

 

(Province — if applicable)

(Country)

 

(If the following statement applies, adopt the statement by marking the box and include an attachment.)

o             The limited liability company has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in an attachment.

                    

5.               The management of the limited liability company is vested in

(Mark the applicable box.)

 

o   one or more managers.

 

or

 

x   the members.

 

6.     (The following statement is adopted by marking the box.)

x   There is at least one member of the limited liability company.

 

7.     (If the following statement applies, adopt the statement by marking the box and include an attachment.)

o   This document contains additional information as provided by law.

 

8.               (Caution : Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has significant legal consequences. Read instructions before entering a date.)

 

(If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format.)

The delayed effective date and, if applicable, time of this document is/are

                                                            .

 

(mm/dd/yyyy hour:minute am/pm)

 

Notice:

 

Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual’s act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes.

 

2



 

This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered.

 

9.     The true name and mailing address of the individual causing the document to be delivered for filing are

 

 

Laughlin

William

G.

 

 

(Last)

(First)

(Middle)

(Suffix)

 

3773 Cherry Creek North Drive

 

(Street number and name or Post Office Box information)

 

Suite 1000

 

 

 

 

Denver

CO

80209

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

 

 

 

United States.

 

(Province — if applicable)

(Country)

 

 

 

 

 

(If the following statement applies, adopt the statement by marking the box and include an attachment.)

o             This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing.

 

Disclaimer:

 

This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form/cover sheet. Questions should be addressed to the user’s legal, business or tax advisor(s).

 

3




Exhibit 3.37

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

NGL MILAN INVESTMENTS, LLC

a Colorado Limited Liability Company

 

This LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of NGL Milan Investments, LLC (the “ Company ”), dated as of the 15th day of September, 2014, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.                                       Formation . The Company has been organized as a Colorado limited liability company under and pursuant to the Colorado Limited Liability Company Act (as amended from time to time, the “ Act ”). The business of the Company shall be conducted under the name NGL Milan Investments, LLC or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

 

2.                                       Member . NGL Crude Tranportation, LLC, a Colorado limited liability company, shall be the sole member of the Company (the “ Member ”).

 

3.                                       Contributions . Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

4.                                       Units . Ownership in the Company shall be represented by membership units (“ Units ”). Such Units shall not be represented by written certificates unless otherwise approved by the Member. The Member is the record and beneficial owner of 1,000 Units, representing all the issued and outstanding Units of the Company.

 

5.                                       Distributions . The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

6.                                       Management . The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company. Officers shall have such rights and duties as may be designated by the Member.

 

7.                                       Indemnification .

 

(a)                                  For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)                                  For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such

 



 

term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)                                   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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”) , 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful. Any indemnification pursuant to this Section 7 shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)                                  To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7 . the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7 .

 

(e)                                   The indemnification provided by this Section 7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)                                    The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have

 

2



 

the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)                                   For purposes of this Section 7 . the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)                                  In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)                                      An Indemnitee shall not be denied indemnification in whole or in part under this Section 7 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.

 

(j)                                     The provisions of this Section 7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)                                  The Company’s obligation to indemnify and to prepay expenses under subparagraphs (c) and (d) of this Section 7 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed. No amendment, modification or repeal of this Section 7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7 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.

 

8.                                       Limitation of Liability .

 

(a)                                  Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter,

 

3



 

acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)                                  To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)                                   Any amendment, modification or repeal of this Section 8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 8 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.

 

(d)                                  The Member, in its management capacity of the Company, may rely upon, 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.

 

(e)                                   The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

9.                                       Dissolution . The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act. No other event will cause the Company to dissolve.

 

10.                                Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

11.                                Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

12.                                Amendment . This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

13.                                Governing Law . This Agreement is governed by and shall be construed in accordance with the laws of the State of Colorado (excluding its conflict-of-laws rules).

 

4



 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

NGL CRUDE TRANSPORTATION, LLC

 

 

 

By:

/s/ William G. Laughlin

 

Name:

William G. Laughlin

 

Its:

Senior Vice President, General Counsel and Secretary

 

5




Exhibit 3.98

 

Delaware

 

The first State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF CERTIFICATE OF FORMATION OF “TRANSMONTAIGNE LLC” FILED IN THIS OFFICE ON THE THIRTIETH DAY OF DECEMBER, A.D. 2014, AT 2:12 O’CLOCK P.M.

 

 

 

 

 

 

/s/ Jeffrey W. Bullock

 

Jeffrey W. Bullock, Secretary of State

 

2247557   8100V

141600472

 

AUTHENTICATION: 2004124

 

                         DATE: 01-02-15

 

you may verify this certificate online

at corp.delaware.gov/authver.shtml

 

2



 

 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 02:22 PM 12/30/2014

 

FILED 2:12 PM 12/30/2014

 

SRV 141600472 - 2247557 FILE

 

STATE OF DELAWARE

CERTIFICATE OF FORMATION OF

TRANSMONTAIGNE LLC

 

THE UNDERSIGNED, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the “ Delaware Limited Liability Company Act ”), hereby certifies that:

 

FIRST: The name of the limited liability company is TransMontaigne LLC.

 

SECOND: The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained under Section 18-104 of the Delaware Limited Liability Company Act are:

 

The Corporation Trust Company

1209 Orange Street

Wilmington, Delaware 19801

New Castle County

 

[Signature Page Follows]

 



 

IN WITNESS WHEREOF , the undersigned has executed this Certificate of Formation of TransMontaigne LLC as of this 30th day of December, 2014.

 

 

 

/s/ Michael A. Hammell

 

Michael A. Hammell, Authorized Representative

 

[Signature Page to Certificate of Formation — TMG LLC]

 




Exhibit 3.99

 

FIRST AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

TRANSMONTAIGNE LLC

a Delaware Limited Liability Company

 

This FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (“ Agreement ”) of TransMontaigne LLC (“ Company ”), dated January 31, 2017, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.             Formation . The Company has been organized as a Delaware limited liability company under and pursuant to the Delaware Limited Liability Company Act (as amended from time to time, the “ Act ”).  The business of the Company shall be conducted under the name TransMontaigne LLC or such other names that comply with applicable law as the Member (as defined below) may from time to time deem necessary or desirable.

 

2.             Purpose.   The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act.  The Company shall have all power necessary or convenient to the conduct, promotion or attainment of such acts and activities.

 

3.             Member . NGL Energy Operating LLC, a Delaware limited liability company, shall be the sole member of the Company (“ Member ”).

 

4.             Contributions . Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

5.             Units . Ownership in the Company shall be represented by membership units (“ Units ”).  Such Units shall not be represented by written certificates unless otherwise approved by the Member.  The Member is the record and beneficial owner of 100 Units, representing all the issued and outstanding Units of the Company.

 

6.             Distributions . The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

7.             Management . The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company.  Officers shall have such rights and duties as may be designated by the Member.

 

8.             Indemnification .

 

a.     For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political

 



 

subdivision thereof or other entity.

 

b.     For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

c.     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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”), 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  Any indemnification pursuant to this Section shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

d.     To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 8(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section, the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this

 

2



 

Section.

 

e.     The indemnification provided by this Section shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

f.     The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

g.     For purposes of this Section, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 8c ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

h.     In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

i.      An Indemnitee shall not be denied indemnification in whole or in part under this Section 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.

 

j.      The provisions of this Section are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

k.     The Company’s obligation to indemnify and to prepay expenses under sub-paragraphs c and d of this Section shall arise, and all rights granted

 

3



 

to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed.  No amendment, modification or repeal of this Section or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 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.

 

9.             Limitation of Liability .

 

a.     Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

b.     To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

c.     Any amendment, modification or repeal of this Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 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.

 

d.     The Member, in its management capacity of the Company, may rely upon, 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.

 

4



 

e.     The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

10.          Dissolution . The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act.  No other event will cause the Company to dissolve.

 

11.          Delaware Statutes .  Nothing in this Agreement is intended or is to be construed to vary the obligation of any member, under the law of the State of Delaware, to discharge its obligations under this Agreement.  Any provision of this Agreement which appears to contravene the law of the State of Delaware will be deemed to the extent necessary to avoid conflict therewith.

 

12.          Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

13.          Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

14.          Amendment .  This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

15.          Governing Law .  This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware (excluding its conflict-of-laws rules).

 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

NGL Energy Operating LLC

 

 

 

 

 

 

 

By:

/s/ Kurston P. McMurray

 

 

Kurston P. McMurray

 

 

General Counsel and Secretary

 

5




Exhibit 3.100

 

Delaware

 

The First State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF CERTIFICATE OF FORMATION OF “TRANSMONTAIGNE PRODUCT SERVICES LLC” FILED IN THIS OFFICE ON THE THIRTIETH DAY OF DECEMBER, A.D. 2014, AT 2:11 O’CLOCK P.M.

 

 

 

 

 

 

/s/ Jeffrey W. Bullock

 

Jeffrey W. Bullock, Secretary of State

 

2956958    8100V

 

141600436

 

AUTHENTICATION: 2004118

 

                         DATE: 01-02-15

 

You may verify this certificate online

at corp.delaware.gov/authver.shtml

 

2



 

 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 02:22 PM 12/30/2014

 

FILED 02:11 PM 12/30/2014

 

SRV 141600436 - 2956958 FILE

 

STATE OF DELAWARE

CERTIFICATE OF FORMATION OF

TRANSMONTAIGNE PRODUCT SERVICES LLC

 

THE UNDERSIGNED , an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the “ Delaware Limited Liability Company Act ”), hereby certifies that:

 

FIRST : The name of the limited liability company is TransMontaigne Product Services LLC.

 

SECOND : The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained under Section 18-104 of the Delaware Limited Liability Company Act are:

 

The Corporation Trust Company

1209 Orange Street

Wilmington, Delaware 19801

New Castle County

 

[Signature Page Follows]

 



 

IN WITNESS WHEREOF , the undersigned has executed this Certificate of Formation of TransMontaigne Product Services LLC as of this 30th day of December, 2014.

 

 

 

/s/ Michael A. Hammell

 

Michael A. Hammell, Authorized Representative

 

[Signature Page to Certificate of Formation — TPS LLC]

 




Exhibit 3.101

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

TRANSMONTAIGNE PRODUCT SERVICES LLC

 

A Delaware Limited Liability Company

 

This LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of TransMontaigne Product Services LLC (the “ Company ”), dated as of the 30th day of December, 2014, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.                                       Formation. The Company has been organized as a Delaware limited liability company under and pursuant to the Delaware Limited Liability Company Act (as amended from time to time, the “ Act ”). The business of the Company shall be conducted under the name TransMontaigne Product Services LLC or such other names that comply with applicable law as the Board of Managers (as defined below) may from time to time deem necessary or desirable.

 

2.                                       Purpose. The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act. The Company shall have all power necessary or convenient to the conduct, promotion or attainment of such acts and activities.

 

3.                                       Member. TransMontaigne LLC, a Delaware limited liability company, shall be the sole member of the Company (the “ Member ”).

 

4.                                       Contributions. Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

5.                                       Units. Ownership in the Company shall be represented by membership units (“ Units ”). Such Units shall not be represented by written certificates unless otherwise approved by the Board of Managers (as defined below). The Member is the record and beneficial owner of 100 Units, representing all the issued and outstanding Units of the Company.

 

6.                                       Distributions. The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

7.                                       Management. The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of the board of managers (the “ Board of Managers ”) appointed by the Member. The Board of Managers (acting on behalf of the Company) shall have the right, power, and authority, to manage, operate, and control the business and affairs of the Company and to do or cause to be done any and all acts, at the expense of the Company, deemed by the Board of Managers to be necessary or appropriate to effectuate the purposes of the Company; provided , however , that, pursuant to Section 18-407 of the Act, the Board of Managers may delegate to one (1) or more other persons any of the Board of Mangers’ rights and powers to manage and control the business and affairs of the Company.

 

1



 

(a)                                  The number of members of the Board of Managers (the “ Board Members ”) shall be determined from time to time by the Member, but in no case shall the number of Board Members be less than one (1).

 

(b)                                  At all meetings of the Board of Managers, a quorum of the Board of Managers consists of a majority of the total number of Board Members prescribed pursuant to Section 7(a)  and determined from time to time by resolution of the Board of Managers. The vote of a majority of the Board Members present at any meeting at which there is a quorum shall be the act of the Board of Managers, except as may be otherwise specifically provided by the Act, the Certificate, or this Agreement. All Board Members shall be entitled to one (1) vote.

 

(c)                                   Any Board Member may be removed, with or without cause, by the affirmative vote of the Member. Vacancies and newly created board seats resulting from any increase in the authorized number of Board Members may be filled by the affirmative vote of a majority of the Board Members then in office, although fewer than a quorum, or by a sole remaining Board Member. Each Board Member so chosen shall hold office until the next election of Board Members, and until such Board Member’s successor is elected and qualified, or until the Board Member’s earlier death, resignation, or removal. In the event that one or more Board Members resign from the Board of Managers, effective at a future date, a majority of the Board Members then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each Board Member so chosen shall hold office until the next election of Board Members, and until such Board Member’s successor is elected and qualified, or until the Board Member’s earlier death, resignation, or removal.

 

(d)                                  The Board of Managers may designate one or more persons as officers (“ Officers ”) of the Company. Officers shall have such rights and duties as may be designated by the Board of Managers.

 

8.                                       Indemnification.

 

(a)                                  For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)                                  For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) any Person who is or was a Board Member, director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a Board Member, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)                                   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

 

2



 

Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”), 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful. Any indemnification pursuant to this Section 8 shall be made only out of the assets of the Company, it being agreed that the Board Members shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)                                  To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 8(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 8 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 8 .

 

(e)                                   The indemnification provided by this Section 8 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)                                    The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)                                   For purposes of this Section 8 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the

 

3



 

meaning of Section 8(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)                                  In no event may an Indemnitee subject the Board Members to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)                                      An Indemnitee shall not be denied indemnification in whole or in part under this Section 8 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.

 

(j)                                     The provisions of this Section 8 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)                                  The Company’s obligation to indemnify and to prepay expenses under sub-paragraphs (c) and (d) of this Section 8 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed. No amendment, modification or repeal of this Section 8 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 8 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.

 

9.                                       Limitation of Liability.

 

(a)                                  Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)                                  To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)                                   Any amendment, modification or repeal of this Section 9 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the

 

4



 

Indemnitees under this Section 9 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.

 

(d)                                  The Board of Managers, in its management capacity of the Company, may rely upon, 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.

 

(e)                                   The Board of Managers, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Board of Managers, in its management capacity of the Company, 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 advice or opinion.

 

10.                                Dissolution. The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act. No other event will cause the Company to dissolve.

 

11.                                Delaware Statutes. Nothing in this Agreement is intended or is to be construed to vary the obligation of any member, under the law of the State of Delaware, to discharge its obligations under this Agreement. Any provision of this Agreement which appears to contravene the law of the State of Delaware will be deemed to the extent necessary to avoid conflict therewith.

 

12.                                Creditors. None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

13.                                Invalidity of Provisions. If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

14.                                Amendment. This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

15.                                Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware (excluding its conflict-of-laws rules).

 

5



 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

TRANSMONTAIGNE LLC

 

 

 

 

 

By:

/s/ Michael A. Hammell

 

Name:

Michael A. Hammell

 

Title:

Executive Vice President and Secretary

 

[Signature Page to LLC Agreement — (TPS LLC)]

 




Exhibit 3.102

 

AMENDMENT NO. 1

TO

LIMITED LIABILITY COMPANY AGREEMENT

OF

TRANSMONTAIGNE PRODUCT SERVICES LLC

 

A Delaware Limited Liability Company

 

This Amendment No. 1 (“ Amendment ”) dated February 1, 2016, to Limited Liability Company Agreement (“ Agreement ”) of TransMontaigne Product Services LLC (“ Company ”) dated as of December 30, 2014, is entered into by the sole Member of the Company pursuant to Section 14 of the Agreement.  Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.  Unless otherwise indicated, all section references in this Amendment refer to sections of the Agreement.

 

WHEREAS, the sole Member entered into the Agreement on December 30, 2014;

 

WHEREAS, pursuant to Section 14, the Member desires to amend the Agreement as set forth herein;

 

NOW, THEREFORE, the Member hereby amends the Agreement as follows:

 

1.             Section 7 is to be removed in its entirety and replaced with:

 

Section 7.              Management .  The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company.  Officers shall have such rights and duties as may be designated by the Member.

 

2.             Each reference in the Agreement to “ Board of Managers ” or “ Board Member(s) ” is hereby deleted and replaced with “ Member .”

 

3.             Except as expressly amended hereby, all other terms and conditions of the Agreement shall remain in full force and effect.

 

( Signature Page Follows )

 



 

IN WITNESS WHEREOF, the undersigned, being the Sole Member of the Company, adopts, executes and agrees to this Amendment effective as of the date first written above.

 

 

TRANSMONTAIGNE LLC

 

 

 

 

 

 

 

By:

/s/ Kurston P. McMurray

 

 

Kurston P. McMurray

 

 

Sr. Vice President Legal and Secretary

 




Exhibit 3.103

 

Delaware

 

The First State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND CORRECT COPY OF CERTIFICATE OF FORMATION OF “TRANSMONTAIGNE SERVICES LLC” FILED IN THIS OFFICE ON THE THIRTIETH DAY OF DECEMBER, A.D. 2014, AT 2:13 O CLOCK P.M.

 

 

 

 

 

 

/s/ Jeffrey W. Bullock

 

Jeffrey W. Bullock, Secretary of State

 

4456325     8100V

 

141600489

 

AUTHENTICATION: 2004127

 

                         DATE: 01-02-15

 

You may verify this certificate online

at corp.delaware.gov/authver.shtml

 

2



 

 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 02:22 PM 12/30/2014

 

FILED 02:13 PM 12/30/2014

 

SRV 141600489 - 4456325 FILE

 

STATE OF DELAWARE

CERTIFICATE OF FORMATION OF

TRANSMONTAIGNE SERVICES LLC

 

THE UNDERSIGNED , an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the “ Delaware Limited Liability Company Act ”), hereby certifies that:

 

FIRST : The name of the limited liability company is TransMontaigne Services LLC.

 

SECOND : The address of the registered office and the name and the address of the registered agent of the limited liability company required to be maintained under Section 18-104 of the Delaware Limited Liability Company Act are:

 

The Corporation Trust Company

1209 Orange Street

Wilmington, Delaware 19801

New Castle County

 

[Signature Page Follows]

 



 

IN WITNESS WHEREOF , the undersigned has executed this Certificate of Formation of TransMontaigne Services LLC as of this 30th day of December, 2014.

 

 

 

/s/ Michael A. Hammell

 

Michael A. Hammell, Authorized Representative

 

[Signature Page to Certificate of Formation — TMG Services LLC]

 




Exhibit 3.104

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

TRANSMONTAIGNE SERVICES LLC

 

A Delaware Limited Liability Company

 

This LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of TransMontaigne Services LLC (the “ Company ”) , dated as of the 30th day of December, 2014, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.                                       Formation. The Company has been organized as a Delaware limited liability company under and pursuant to the Delaware Limited Liability Company Act (as amended from time to time, the “ Act ”) . The business of the Company shall be conducted under the name TransMontaigne Services LLC or such other names that comply with applicable law as the Board of Managers (as defined below) may from time to time deem necessary or desirable.

 

2.                                       Purpose. The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act. The Company shall have all power necessary or convenient to the conduct, promotion or attainment of such acts and activities.

 

3.                                       Member. TransMontaigne Product Services LLC, a Delaware limited liability company, shall be the sole member of the Company (the “ Member ”) .

 

4.                                       Contributions. Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

5.                                       Units. Ownership in the Company shall be represented by membership units ( Units ”) . Such Units shall not be represented by written certificates unless otherwise approved by the Board of Managers (as defined below). The Member is the record and beneficial owner of 100 Units, representing all the issued and outstanding Units of the Company.

 

6.                                       Distributions. The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

7.                                       Management. The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of the board of managers (the “ Board of Managers ”) appointed by the Member. The Board of Managers (acting on behalf of the Company) shall have the right, power, and authority, to manage, operate, and control the business and affairs of the Company and to do or cause to be done any and all acts, at the expense of the Company, deemed by the Board of Managers to be necessary or appropriate to effectuate the purposes of the Company; provided , however , that, pursuant to Section 18-407 of the Act, the Board of Managers may delegate to one (1) or more other persons any of the Board of Mangers’ rights and powers to manage and control the business and affairs of the Company.

 

1



 

(a)                                  The number of members of the Board of Managers (the “ Board Members ”) shall be determined from time to time by the Member, but in no case shall the number of Board Members be less than one (1).

 

(b)                                  At all meetings of the Board of Managers, a quorum of the Board of Managers consists of a majority of the total number of Board Members prescribed pursuant to Section 7(a)  and determined from time to time by resolution of the Board of Managers. The vote of a majority of the Board Members present at any meeting at which there is a quorum shall be the act of the Board of Managers, except as may be otherwise specifically provided by the Act, the Certificate, or this Agreement. All Board Members shall be entitled to one (1) vote.

 

(c)                                   Any Board Member may be removed, with or without cause, by the affirmative vote of the Member. Vacancies and newly created board seats resulting from any increase in the authorized number of Board Members may be filled by the affirmative vote of a majority of the Board Members then in office, although fewer than a quorum, or by a sole remaining Board Member. Each Board Member so chosen shall hold office until the next election of Board Members, and until such Board Member’s successor is elected and qualified, or until the Board Member’s earlier death, resignation, or removal. In the event that one or more Board Members resign from the Board of Managers, effective at a future date, a majority of the Board Members then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each Board Member so chosen shall hold office until the next election of Board Members, and until such Board Member’s successor is elected and qualified, or until the Board Member’s earlier death, resignation, or removal.

 

(d)                                  The Board of Managers may designate one or more persons as officers (“ Officers ”) of the Company. Officers shall have such rights and duties as may be designated by the Board of Managers.

 

8.                                       Indemnification.

 

(a)                                  For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)                                  For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) any Person who is or was a Board Member, director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a Board Member, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)                                   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

 

2



 

Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”) , 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful. Any indemnification pursuant to this Section 8 shall be made only out of the assets of the Company, it being agreed that the Board Members shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)                                  To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 8(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 8 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 8 .

 

(e)                                   The indemnification provided by this Section 8 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)                                    The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)                                   For purposes of this Section 8 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the

 

3



 

meaning of Section 8(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)                                  In no event may an Indemnitee subject the Board Members to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)                                      An Indemnitee shall not be denied indemnification in whole or in part under this Section 8 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.

 

(j)                                     The provisions of this Section 8 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)                                  The Company’s obligation to indemnify and to prepay expenses under sub-paragraphs (c) and (d) of this Section 8 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed. No amendment, modification or repeal of this Section 8 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 8 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.

 

9.                                       Limitation of Liability.

 

(a)                                  Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)                                  To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)                                   Any amendment, modification or repeal of this Section 9 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the

 

4



 

Indemnitees under this Section 9 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.

 

(d)                                  The Board of Managers, in its management capacity of the Company, may rely upon, 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.

 

(e)                                   The Board of Managers, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Board of Managers, in its management capacity of the Company, 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 advice or opinion.

 

10.                                Dissolution. The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act. No other event will cause the Company to dissolve.

 

11.                                Delaware Statutes. Nothing in this Agreement is intended or is to be construed to vary the obligation of any member, under the law of the State of Delaware, to discharge its obligations under this Agreement. Any provision of this Agreement which appears to contravene the law of the State of Delaware will be deemed to the extent necessary to avoid conflict therewith.

 

12.                                Creditors. None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

13.                                Invalidity of Provisions. If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

14.                                Amendment. This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

15.                                Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware (excluding its conflict-of-laws rules).

 

5



 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

 

 

TRANSMONTAIGNE PRODUCT SERVICES LLC

 

 

 

By:

/s/ Michael A. Hammell

 

Name:

Michael A. Hammell

 

Title:

Executive Vice President and Secretary

 

[Signature Page to LLC Agreement (TMG Services LLC)]

 




Exhibit 3.105

 

Document must be filed electronically.

Colorado Secretary of State

Paper documents are not accepted.

 

Date and Time: 10/17/2014 03:44 PM

Fees & forms are subject to change.

 

ID Number: 20141630310

For more information or to print copies

 

Document number: 20141630310

of filed documents, visit www.sos.state.co.us.

 

Amount Paid: $1.00

 

ABOVE SPACE FOR OFFICE USE ONLY

 

Articles of Organization

filed pursuant to § 7-80-203 and § 7-80-204 of the Colorado Revised Statutes (C.R.S.)

 

1.     The domestic entity name of the limited liability company is

 

 

NGL Water Solutions Bakken, LLC .                                             

 

(The name of a limited liability company must contain the term or abbreviation “limited liability company”, “ltd. liability company”, “limited liability co.”, “ltd. liability co.”, “limited”, “l.l.c.”, “llc”, or “ltd.”. See §7-90-601, C.R.S.)

 

(Caution : The use of certain terms or abbreviations are restricted by law. Read instructions for more information.)

 

2.     The principal office address of the limited liability company’s initial principal office is

 

Street address

3773 Cherry Creek North Drive

 

(Street number and name)

 

Suite 1000

 

 

 

Denver

 

CO

 

80209

 

(City)

 

(State)

 

(ZIP/Postal Code)

 

 

 

 

 

 

 

 

 

United States

 

 

(Province — if applicable)

 

(Country)

 

 

Mailing address

 

(leave blank if same as street address)

(Street number and name or Post Office Box information)

 

 

 

 

 

 

 

 

 

(City)

 

(State)

 

(ZIP/Postal Code)

 

 

 

 

 

 

 

 

 

                        .

 

 

(Province — if applicable)

 

(Country)

 

 

3.     The registered agent name and registered agent address of the limited liability company’s initial registered agent are

 

Name

 

(if an individual)

 

 

 

 

 

 

 

 

(Last)

 

(First)

 

(Middle)

 

(Suffix)

or

 

 

 

(if an entity)

The Corporation Company

(Caution : Do not provide both an individual and an entity name.)

 

 

 

Street address

1675 Broadway

 

(Street number and name)

 

Suite 1200

 

 

 

Denver

 

CO

 

80202

 

(City)

 

(State)

 

(ZIP Code)

 

 

 

 

 

 

Mailing address

 

(leave blank if same as street address)

(Street number and name or Post Office Box information)

 

ARTORG_LLC

 

Rev. 12/01/2012

 

1



 

 

 

 

CO

 

                   .

 

(City)

 

(State)

 

(ZIP Code)

 

(The following statement is adopted by marking the box.)

x  The person appointed as registered agent has consented to being so appointed.

 

4. The true name and mailing address of the person forming the limited liability company are

 

Name

 

(if an individual)

Laughlin

 

William

 

G.

 

 

 

(Last)

 

(First)

 

(Middle)

 

(Suffix)

or

 

 

 

(if an entity)

 

(Caution : Do not provide both an individual and an entity name.)

 

 

 

Mailing address

3773 Cherry Creek North Drive

 

(Street number and name or Post Office Box information)

 

Suite 1000

 

 

 

Denver

 

CO

 

80209

 

(City)

 

(State)

 

(ZIP/Postal Code)

 

 

 

 

 

 

 

 

 

United States .

 

 

 

(Province if applicable)

 

(Country)

 

 

 

                                                (If the following statement applies, adopt the statement by marking the box and include an attachment.)

o  The limited liability company has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in an attachment.

 

5. The management of the limited liability company is vested in

(Mark the applicable box.)

 

o one or more managers.

 

or

 

x the members.

 

6. (The following statement is adopted by marking the box.)

x There is at least one member of the limited liability company.

 

7. (If the following statement applies, adopt the statement by marking the box and include an attachment.)

o This document contains additional information as provided by law.

 

8. (Caution : Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has significant legal consequences. Read instructions before entering a date.)

 

(If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format.)

The delayed effective date and, if applicable, time of this document is/are

                                                                       .

 

(mm/dd/yyyy hour:minute am/pm)

 

Notice:

 

Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual’s act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes.

 

2



 

This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered.

 

9. The true name and mailing address of the individual causing the document to be delivered for filing are

 

 

Laughlin

 

William

 

G.

 

 

 

(Last)

 

(First)

 

(Middle)

 

(Suffix)

 

 

 

3773 Cherry Creek North Drive

 

(Street number and name or Post Office Box information)

 

Suite 1000

 

 

 

Denver

 

CO

 

80209

 

(City)

 

(State)

 

(ZIP/Postal Code)

 

 

 

 

 

 

 

 

 

United States .

 

 

 

(Province if applicable)

 

(Country)

 

 

 

(If the following statement applies, adopt the statement by marking the box and include an attachment.)

o  This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing.

 

Disclaimer:

 

This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form/cover sheet. Questions should be addressed to the user’s legal, business or tax advisor(s).

 

3




Exhibit 3.106

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

NGL WATER SOLUTIONS BAKKEN, LLC

a Colorado Limited Liability Company

 

This LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of NGL Water Solutions Bakken, LLC (the “ Company ”), dated as of the 17th day of October, 2014, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.                                       Formation. The Company has been organized as a Colorado limited liability company under and pursuant to the Colorado Limited Liability Company Act (as amended from time to time, the “ Act ”) . The business of the Company shall be conducted under the name NGL Water Solutions Bakken, LLC or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

 

2.                                       Member. NGL Water Solutions, LLC, a Colorado limited liability company, shall be the sole member of the Company (the “ Member ”) .

 

3.                                       Contributions. Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

4.                                       Units. Ownership in the Company shall be represented by membership units (“ Units ”) . Such Units shall not be represented by written certificates unless otherwise approved by the Member. The Member is the record and beneficial owner of 1,000 Units, representing all the issued and outstanding Units of the Company.

 

5.                                       Distributions. The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

6.                                       Management. The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers ( Officers ”) of the Company. Officers shall have such rights and duties as may be designated by the Member.

 

7.                                       Indemnification.

 

(a)                                  For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)                                  For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such

 



 

term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)                                   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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”), 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful. Any indemnification pursuant to this Section 7 shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)                                  To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7 .

 

(e)                                   The indemnification provided by this Section 7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)                                    The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have

 

2



 

the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)                                   For purposes of this Section 7 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)                                  In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)                                      An Indemnitee shall not be denied indemnification in whole or in part under this Section 7 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.

 

(j)                                     The provisions of this Section 7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)                                  The Company’s obligation to indemnify and to prepay expenses under sub-paragraphs (c) and (d) of this Section 7 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed. No amendment, modification or repeal of this Section 7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7 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.

 

8.                                       Limitation of Liability.

 

(a)                                  Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter,

 

3



 

acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)                                  To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)                                   Any amendment, modification or repeal of this Section 8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 8 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.

 

(d)                                  The Member, in its management capacity of the Company, may rely upon, 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.

 

(e)                                   The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

9.                                       Dissolution. The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act. No other event will cause the Company to dissolve.

 

10.                                Creditors. None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

11.                                Invalidity of Provisions. If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

12.                                Amendment. This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

13.                                Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of Colorado (excluding its conflict-of-laws rules).

 

4



 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

NGL WATER SOLUTIONS, LLC

 

 

 

 

 

By:

/s/ William G. Laughlin

 

Name:

William G. Laughlin

 

Its:

Senior Vice President - Legal and Secretary

 

5




Exhibit 3.107

 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 02:15 PM 09/13/2011

 

FILED 02:12 PM 09/13/2011

 

SRV 111001109 - 5037140 FILE

 

 

CERTIFICATE OF FORMATION

of

MAGNUM NGLS, LLC

 

This Certificate of Formation of Magnum NGLs, LLC (the “Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.

 

1.                                       The name of the limited liability company is Magnum NGLs, LLC.

 

2.                                       The address of the registered office of the Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.

 

3.                                       The name and address of the Company’s registered agent for service of process required to be maintained by §18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.

 

[The signature page follows.]

 



 

IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has caused this Certificate of Formation to be duly executed as of the 13th day of September, 2011.

 

 

 

MAGNUM NGLS, LLC

 

a Delaware limited liability company

 

 

 

 

By:

/s/ Michael McGown

 

 

Name: Michael McGown

 

 

Title: Authorized Person

 




Exhibit 3.108

 

 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 12:40 PM 03/18/2015

 

FILED 12:21 PM 03/18/2015

 

SBV 150374000 - 5037140 FILE

 

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT

 

1.                                       Name of Limited Liability Company: MAGNUM NGLS, LLC

 

2.                                       The Certificate of Formation of the limited liability company is hereby amended as follows:

 

1.                                       The name of the Limited Liability Company is Sawtooth NGL Caverns, LLC.

 

IN WITNESS WHEREOF , the undersigned have executed this Certificate on the 17th day of March, A.D. 2015.

 

 

 

By:

/s/ William G. Laughlin

 

Authorized Person(s)

 

 

 

 

 

Name:

William G. Laughlin

 

Print or Type

 



 

Delaware

 

The First State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “MAGNUM NGLS, LLC”, CHANGING ITS NAME FROM “MAGNUM NGLS, LLC” TO “SAWTOOTH NGL CAVERNS, LLC”, FILED IN THIS OFFICE ON THE EIGHTEENTH DAY OF MARCH, A.D. 2015, AT 12:21 O’CLOCK P.M.

 

 

 

 

 

 

/s/ Jeffrey W. Bullock

 

Jeffrey W. Bullock, Secretary of State

 

5037140     8100

 

150374000

 

AUTHENTICATION: 2211843

 

                        DATE: 03-18-15

 

You may verify this certificate online

at corp. delaware.gov/authver.shtml

 

1




Exhibit 3.109

 

FIRST AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

SAWTOOTH NGL CAVERNS, LLC

 

a Delaware Limited Liability Company

 

This FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of Sawtooth NGL Caverns, LLC (the “ Company ”), dated as of the 17th day of March, 2015, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.             Formation . The Company has been organized as a Delaware limited liability company under and pursuant to the Delaware Limited Liability Company Act (as amended from time to time, the “ Act ”).  The business of the Company shall be conducted under the name Sawtooth NGL Caverns, LLC or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

 

2.             Member . NGL Supply Terminal Company, LLC, a Delaware limited liability company, shall be the sole member of the Company (the “ Member ”).

 

3.             Contributions . Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

4.             Units . Ownership in the Company shall be represented by membership units (“ Units ”).  Such Units shall not be represented by written certificates unless otherwise approved by the Member.  The Member is the record and beneficial owner of 1,000 Units, representing all the issued and outstanding Units of the Company.

 

5.             Distributions . The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

6.             Management . The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company.  Officers shall have such rights and duties as may be designated by the Member.

 

7.             Indemnification .

 

(a)           For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)           For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) 

 



 

any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)           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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”), 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  Any indemnification pursuant to this Section 7 shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)           To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7 .

 

(e)           The indemnification provided by this Section 7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)            The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against

 

2



 

any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)           For purposes of this Section 7 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)           In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)            An Indemnitee shall not be denied indemnification in whole or in part under this Section 7 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.

 

(j)            The provisions of this Section 7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)           The Company’s obligation to indemnify and to prepay expenses under sub-paragraphs (c) and (d) of this Section 7 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed.  No amendment, modification or repeal of this Section 7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7 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.

 

8.             Limitation of Liability .

 

(a)           Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an

 

3



 

Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)           To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)           Any amendment, modification or repeal of this Section 8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 8 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.

 

(d)           The Member, in its management capacity of the Company, may rely upon, 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.

 

(e)           The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

9.             Dissolution . The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act.  No other event will cause the Company to dissolve.

 

10.          Delaware Statutes .  Nothing in this Agreement is intended or is to be construed to vary the obligation of any member, under the law of the State of Delaware, to discharge its obligations under this Agreement.  Any provision of this Agreement which appears to contravene the law of the State of Delaware will be deemed to the extent necessary to avoid conflict therewith.

 

11.          Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

12.          Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed

 

4



 

and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

13.          Amendment .  This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

14.          Governing Law .  This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware (excluding its conflict-of-laws rules).

 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

NGL Supply Terminal Company, LLC

 

 

 

 

 

By:

/s/ William G. Laughlin

 

 

William G. Laughlin

 

 

Sr. Vice President — Legal and Secretary

 

5




Exhibit 3.110

 

Delaware

 

The First State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF FORMATION OF “GRAND MESA PIPELINE, LLC”, FILED IN THIS OFFICE ON THE ELEVENTH DAY OF JULY, A.D. 2014, AT 11:18 O’CLOCK A.M.

 

 

 

 

 

 

/s/ Jeffrey W. Bullock

 

Jeffrey W. Bullock, Secretary of State

 

5566971     8100

 

140943539

 

AUTHENTICATION: 1526953

 

                         DATE: 07-11-14

 

You may varify this certificate online

at corp.delaware.gov/authver.shtml

 

1



 

State of Delaware

 

Secretary of State

 

Division of Corporations

 

Delivered 11:21 AM 07/11/2014

 

FILED 11:18 AM 07/11/2014

 

SRV 140943539 - 5566971 FILE

 

 

CERTIFICATE OF FORMATION

 

OF

 

Grand Mesa Pipeline, LLC

 

1.     The name of the limited liability company is Grand Mesa Pipeline, LLC.

 

2.     The address of its registered office in the State of Delaware is: Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

 

IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of Grand Mesa Pipeline, LLC this 11 th  day of July, 2014.

 

 

 

/s/ Troy D. Peterson

 

 

 

Troy D. Peterson

 

 

 

Authorized Person

 




Exhibit 3.111

 

FIRST AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

GRAND MESA PIPELINE, LLC

 

a Delaware Limited Liability Company

 

This FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of Grand Mesa Pipeline, LLC (the “ Company ”), dated as of the 2 nd  day of December, 2014, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.             Formation . The Company has been organized as a Delaware limited liability company under and pursuant to the Delaware Limited Liability Company Act (as amended from time to time, the “ Act ”).  The business of the Company shall be conducted under the name Grand Mesa Pipeline, LLC or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

 

2.             Member . NGL Crude Terminals, LLC, a Delaware limited liability company, shall be the sole member of the Company (the “ Member ”).

 

3.             Contributions . Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

4.             Units . Ownership in the Company shall be represented by membership units (“ Units ”).  Such Units shall not be represented by written certificates unless otherwise approved by the Member.  The Member is the record and beneficial owner of 1,000 Units, representing all the issued and outstanding Units of the Company.

 

5.             Distributions . The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

6.             Management . The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company.  Officers shall have such rights and duties as may be designated by the Member.

 

7.             Indemnification .

 

(a)           For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)           For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii)

 



 

any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)           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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”), 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  Any indemnification pursuant to this Section 7 shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)           To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7 .

 

(e)           The indemnification provided by this Section 7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)            The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against

 

2



 

any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)           For purposes of this Section 7 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)           In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)            An Indemnitee shall not be denied indemnification in whole or in part under this Section 7 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.

 

(j)            The provisions of this Section 7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)           The Company’s obligation to indemnify and to prepay expenses under sub-paragraphs (c) and (d) of this Section 7 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed.  No amendment, modification or repeal of this Section 7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7 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.

 

8.             Limitation of Liability .

 

(a)           Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an

 

3



 

Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)           To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)           Any amendment, modification or repeal of this Section 8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 8 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.

 

(d)           The Member, in its management capacity of the Company, may rely upon, 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.

 

(e)           The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

9.             Dissolution . The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act.  No other event will cause the Company to dissolve.

 

10.          Delaware Statutes .  Nothing in this Agreement is intended or is to be construed to vary the obligation of any member, under the law of the State of Delaware, to discharge its obligations under this Agreement.  Any provision of this Agreement which appears to contravene the law of the State of Delaware will be deemed to the extent necessary to avoid conflict therewith.

 

11.          Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

12.          Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed

 

4



 

and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

13.          Amendment .  This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

14.          Governing Law .  This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware (excluding its conflict-of-laws rules).

 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

NGL Crude Terminals, LLC

 

 

 

 

 

By:

/s/ William G. Laughlin

 

 

William G. Laughlin

 

 

Senior Vice President

 

5




Exhibit 3.112

 

ARTICLES OF ORGANIZATION

OF

MAGNUM NGLS SOLUTION MINING LLC

 

The undersigned person, desiring to organize a limited liability company under and pursuant to the Utah Revised Limited Liability Company Act, Utah Code Ann. §48-2c-101 et seq. (as amended from time to time, the “ Act ”), hereby adopts the following Articles of Organization for such limited liability company.

 

ARTICLE 1

NAME

 

The name of the limited liability company hereby formed is “Magnum NGLs Solution Mining LLC” (the “ Company ”).

 

ARTICLE 2

BUSINESS PURPOSE

 

The business purpose for which the Company is organized is to engage in and transact any and all business and related activities that may lawfully be engaged in and transacted by limited liability companies formed under the Act, including mining and any related activities.

 

ARTICLE 3

REGISTERED AGENT

 

The name and street address of the Company’s commercial registered agent in the State of Utah is DJP Corporate Services Salt Lake, 111 East Broadway, Suite 900, Salt Lake City, UT 84111. By signing below, the undersigned affirms that said entity has consented to serve as the registered agent for the Company.

 

ARTICLE 4

MANAGEMENT

 

The Company is to be managed by one or more managers. The name and street address of the person who shall serve as the initial manager is:

 

Craig Broussard

3165 East Millrock Drive, Suite 330

Holladay, Utah 84121

 

Such person shall serve as manager until its successor is duly appointed pursuant to the operating agreement of the Company or applicable law. The number of persons who may be appointed as managers shall be established pursuant to the Company’s operating agreement or applicable law. Unless otherwise directed, there shall be only one manager.

 



 

IN WITNESS WHEREOF, the undersigned, as the organizer, declares and affirms, under penalty of perjury, that the facts stated in these Articles of Organization are true this 18 th  day of March 2013.

 

 

 

/s/ Elisabeth Smith

 

Elisabeth Smith, Organizer
Durham Jones and Pinegar, P.C.
111 East Broadway, Suite 900
Salt Lake City, UT 84111

 




Exhibit 3.113

 

Certificate of Amendment

to the Articles of Organization

of

Magnum NGLs Solution Mining LLC

 

Magnum NGLs Solution Mining LLC, a limited liability company duly organized and existing under the laws of the State of Utah, pursuant to Section 48-2c-408 of the Utah Revised Limited Liability Company Act, as amended (the “Act”), hereby amends its Articles of Organization as described below.

 

Article 4 of the Articles of Organization of Magnum NGLs Solution Mining LLC, as filed with the Utah Division of Corporations and Commercial Code on March 18, 2013, is hereby amended to read:

 

Management. The Company will be managed by its member(s).

 

The above amendment was duly adopted by the consent of the sole Member of the Company on the 16th day of September, 2014, as required by Sections 48-2c-803 or -804 of the Act, and in accordance with the Articles of Organization and Operating Agreement of the Company.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate this 16th day of September, 2014.

 

 

MEMBER:

 

 

 

Magnum NGLS, LLC

 

 

 

By:

/s/ William G. Laughlin

 

 

 

 

Its:

Manager

 




Exhibit 3.114

 

EXPEDITE

 

This form must be type written or computer generated.

 

 

Date:

03/18/2015

 

Receipt Number:

5942059

 

Amount Paid:

$1,993.30

 

 

State of Utah

RECEIVED

Department of Commerce

MAR 18 2015

Division of Corporations & Commercial Code

Utah Div. of Corp. & Comm. Code

Amendment to Certificate of Organization

 

 

Non-Refundable Processing Fee: $37.00

 

Pursuant to UCA § 48-3a-202, the individual named below causes this Amendment to the Certificate of Organization to be delivered to the Utah Division of Corporations for filing, and states as follows:

 

Entity Number: 8615504-0160

 

The name of the limited liability company is: Magnum NGLS Solution Mining, LLC

 

The Certificate of Organization shall be amended as set forth herein (complete all that apply):

There is a change in the name of the limited liability company to:

 

NGL Supply Terminal Solution Mining, LLC

 

The Certificate of Organization is amended as follows:

 

 

Filing date of initial certificate 3/18/2013

 

Future effective date (if not to be effective upon filing)                                             (not to exceed 90 days)

 

Under penalties of perjury, I declare that this Amendment of Certificate of Organization has been examined by me and is, to the best of my knowledge and belief, true, correct and complete.

 

Name:

William G. Laughlin

 

Signed:

/s/ William G. Laughlin

 

 

 

 

 

Title:

Senior Vice President - Legal and Secretary

 

Dated:

3/17/2015

 

Under GRAMA {63-2-201}, all registration information maintained by the Division is classified as public record. For confidentiality purposes, you may use the business entity physical address rather than the residential or private address of any individual affiliated with the entity.

 

 

 

State of Utah
Department of Commerce
Division of Corporations and Commercial Code
hereby certified that the foregoing has been filed
and approved on this 18th day of Mar 2015
In this office of this Division and hereby issued

 

 

 

This Certificate thereof.

 

 

 

 

 

 

 

 

 

 

Examiner

/s/ T. O.

 

Date

3/19/15

 

 

 

 

 

/s/ Kathy Berg

 

 

Kathy Berg

01/14

 

Division Director

 




Exhibit 3.115

 

FIRST AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

NGL SUPPLY TERMINAL SOLUTION MINING, LLC

 

a Utah Limited Liability Company

 

This FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of NGL Supply Terminal Solution Mining, LLC (the “ Company ”), dated as of the 17th day of March, 2015, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.             Formation . The Company has been organized as a Utah limited liability company under and pursuant to the Utah Limited Liability Company Act (as amended from time to time, the “ Act ”).  The business of the Company shall be conducted under the name NGL Supply Terminal Solution Mining, LLC or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

 

2.             Member . Sawtooth NGL Caverns, LLC, a Delaware limited liability company, shall be the sole member of the Company (the “ Member ”).

 

3.             Contributions . Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

4.             Units . Ownership in the Company shall be represented by membership units (“ Units ”).  Such Units shall not be represented by written certificates unless otherwise approved by the Member.  The Member is the record and beneficial owner of 1,000 Units, representing all the issued and outstanding Units of the Company.

 

5.             Distributions . The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

6.             Management . The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company.  Officers shall have such rights and duties as may be designated by the Member.

 

7.             Indemnification .

 

(a)           For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)           For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii)

 



 

any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)           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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”), 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  Any indemnification pursuant to this Section 7 shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)           To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7 .

 

(e)           The indemnification provided by this Section 7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)            The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against

 

2



 

any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)           For purposes of this Section 7 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)           In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)            An Indemnitee shall not be denied indemnification in whole or in part under this Section 7 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.

 

(j)            The provisions of this Section 7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)           The Company’s obligation to indemnify and to prepay expenses under sub-paragraphs (c) and (d) of this Section 7 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed.  No amendment, modification or repeal of this Section 7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7 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.

 

8.             Limitation of Liability .

 

(a)           Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an

 

3



 

Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)           To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)           Any amendment, modification or repeal of this Section 8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 8 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.

 

(d)           The Member, in its management capacity of the Company, may rely upon, 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.

 

(e)           The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

9.             Dissolution . The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act.  No other event will cause the Company to dissolve.

 

10.          Utah Statutes .  Nothing in this Agreement is intended or is to be construed to vary the obligation of any member, under the law of the State of Utah, to discharge its obligations under this Agreement.  Any provision of this Agreement which appears to contravene the law of the State of Utah will be deemed to the extent necessary to avoid conflict therewith.

 

11.          Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

12.          Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had

 

4



 

never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

13.          Amendment .  This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

14.          Governing Law .  This Agreement is governed by and shall be construed in accordance with the laws of the State of Utah (excluding its conflict-of-laws rules).

 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

Sawtooth NGL Caverns, LLC

 

 

 

 

 

By:

/s/ William G. Laughlin

 

 

William G. Laughlin

 

 

Sr. Vice President — Legal and Secretary

 

5




Exhibit 3.116

 

 

Colorado Secretary of State

 

Date and Time: 10/06/2015 02:05 PM

Document must be filed electronically.

ID Number: 20151651011

Paper documents are not accepted.

 

Fees & forms are subject to change.

 

Document number: 20151651011

For more information or to print copies

 

Amount Paid: $50.00

of filed documents, visit www.sos.state.co.us.

 

 

 

 

ABOVE SPACE FOR OFFICE USE ONLY

 

 

Articles of Organization
filed pursuant to § 7-80-203 and § 7-80-204 of the Colorado Revised Statutes (C.R.S.)

 

1.               The domestic entity name of the limited liability company is

 

 

 

NGL Energy Equipment LLC.

 

 

(The name of a limited liability company must contain the term or abbreviation “limited liability company”, “ltd. liability company”, “limited liability co. ”, “ltd. liability co. ”, “limited”, “l.l.c. ”, “llc”, or “ltd. ”. See §7-90-601, C.R.S.)

 

(Caution : The use of certain terms or abbreviations are restricted by law. Read instructions for more information.)

 

2.               The principal office address of the limited liability company’s initial principal office is

 

Street address

 

3773 Cherry Creek North Drive

 

 

(Street number and name)

 

 

Suite 1000

 

 

Denver

CO

80209

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

 

 

 

United States

 

 

 

(Province – if applicable)

(Country)

 

 

Mailing address

 

 

(leave blank if same as street address)

 

(Street number and name or Post Office Box information)

 

 

 

 

 

 

 

 

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

 

 

 

 

.

 

 

(Province – if applicable)

(Country)

 

 

3.               The registered agent name and registered agent address of the limited liability company’s initial registered agent are

 

Name

 

 

(if an individual)

 

 

 

 

(Last)

(First)

(Middle)

(Suffix)

or

 

 

 

 

 

 

 

 

(if an entity)

 

The Corporation Company

(Caution : Do not provide both an individual and an entity name.)

 

Street address

 

1675 Broadway

 

 

(Street number and name)

 

 

Suite #1200

 

 

Denver

CO

80202

 

 

(City)

(State)

(ZIP Code)

 

Mailing address

 

 

(leave blank if same as street address)

 

(Street number and name or Post Office Box information)

 

1



 

 

 

 

CO

 

 

 

(City)

(State)

(ZIP Code)

 

(The following statement is adopted by marking the box.)

 

x   The person appointed as registered agent has consented to being so appointed.

 

4.               The true name and mailing address of the person forming the limited liability company are

 

Name

 

 

(if an individual)

 

 

 

 

(Last)

(First)

(Middle)

(Suffix)

or

 

 

 

 

 

 

 

 

(if an entity)

 

NGL Energy Partners LP

(Caution : Do not provide both an individual and an entity name.)

 

 

 

Mailing address

 

6120 S. Yale Ave.

 

 

(Street number and name or Post Office Box information)

 

 

Suite 805

 

 

Tulsa

OK

74136

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

 

 

 

 

United States.

 

 

 

(Province – if applicable)

(Country)

 

 

(If the following statement applies, adopt the statement by marking the box and include an attachment.)

 

o             The limited liability company has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in an attachment.

 

 

5.          The management of the limited liability company is vested in

(Mark the applicable box.)

o   one or more managers.

 

or

 

x   the members.

 

6.          (The following statement is adopted by marking the box.)

x   There is at least one member of the limited liability company.

 

7.               (If the following statement applies, adopt the statement by marking the box and include an attachment.)

o   This document contains additional information as provided by law.

 

8.               (Caution : Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has significant legal consequences. Read instructions before entering a date.)

 

(If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format.)

The delayed effective date and, if applicable, time of this document is/are

                                                                                           .

 

(mm/dd/yyyy hour:minute am/pm)

 

Notice:

 

Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual’s act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes.

 

2



 

This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered.

 

9.               The true name and mailing address of the individual causing the document to be delivered for filing are

 

 

 

McMurray

Kurston

P

 

 

 

(Last)

(First)

(Middle)

(Suffix)

 

 

6120 S. Yale Ave

 

 

(Street number and name or Post Office Box information)

 

 

Suite 805

 

 

Tulsa

OK

74136

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

 

 

 

 

United States .

 

 

 

(Province if applicable)

(Country)

 

 

(If the following statement applies, adopt the statement by marking the box and include an attachment.)

o             This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing.

 

Disclaimer:

 

This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form/cover sheet. Questions should be addressed to the user’s legal, business or tax advisor(s).

 

3


 



Exhibit 3.117

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

NGL ENERGY EQUIPMENT LLC

 

a Colorado Limited Liability Company

 

This LIMITED LIABILITY COMPANY AGREEMENT (“ Agreement ”) of NGL Energy Equipment LLC (“ Company ”), dated effective October 6, 2015, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.          Formation. The Company has been organized as a Colorado limited liability company under and pursuant to the Colorado limited liability company Act (as amended form time to time, the “ Act ).  The business of the Company shall be conducted under the name NGL ENERGY EQUIPMENT LLC or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

 

2.          Member. NGL Energy Partners LP, a Delaware master limited partnership shall be the sole member of the Company (“ Member ”) .

 

3.          Contributions. Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

4.          Units. Ownership in the Company shall be represented by membership units (“ Units ”). Such Units shall not be represented by written certificates unless otherwise approved by the Member. The Member is the record and beneficial owner of 1,000 Units, representing all the issued and outstanding Units of the Company.

 

5.          Distributions. The Member shall be entitled (a) to receive all distributions (including, without limitation , liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

6.          Management. The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company.  Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company. Officers shall have such rights and duties as may be designated by the Member.

 

7 .              Indemnification.

 

(a)           For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization , association, government agency or political subdivision thereof or other entity.

 

(b)           For purposes of this Agreement, “ Indemnitee ”  shall mean: (i) the  Member; (ii) any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member; (iii) any Person who

 

1



 

is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services; (iv) any Person that controls the Member; and (v) any Person the Member designates as an “ Indemnitee ” for purposes of this Agreement.

 

(c)           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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments , fines, penalties , interest, settlements or other amounts arising from any and all threatened, pending or completed  claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”) , 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement , the Indemnitee acted in  bad faith or  engaged in fraud, willful misconduct or,  in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful. Any indemnification pursuant to this Section shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)           To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7(c)  in defending any claim, demand , action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section, the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section.

 

(e)           The indemnification provided by this Section shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)            The Company may purchase and maintain  insurance, on behalf of the Company, its affiliates, the Indemnitees  and  such other Persons  as the Company shall determine,  against any liability that may be asserted against, or expense that may be

 

2



 

incurred by, such person in connection with the Company’s or any of its affiliate’s activities  or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would  have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)           For purposes of this Section, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “ fines ” within  the meaning of Section 7(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)           In no event may an Indemnitee subject the Member to personal  liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)            An Indemnitee shall not be denied indemnification in whole or in part under this Section 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.

 

(j)            The provisions of this Section are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k) The Company’s obligation to indemnify and to prepay expenses under sub- paragraphs (c) and (d) of this Section shall  arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed. No amendment, modification or repeal of this Section or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 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.

 

8 .              Limitation of Liability.

 

(a)           Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons  who have acquired ownership interests  in the Units,  for  losses  sustained  or  liabilities incurred  as  a  result  of  any  act or

 

3



 

omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)           To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)           Any amendment, modification or repeal of this Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 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.

 

(d)           The Member, in its management capacity of the Company, may rely upon, 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.

 

(e)           The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

9.              Dissolution.  The Company shall dissolve and its affairs shall be wound up upon:  (a) the consent of the Member; or (b) the entry of a decree of judicial dissolution under the Act.  No other event will cause the Company to dissolve.

 

10.           Creditors .  None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, and creditor of the Company.

 

11.           Invalidity of Provisions. If any provision or part of a provision of this Agreement is or become s for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

4



 

12.        Amendment.            This Agreement  may be amended  by the Member;  provided,  that any amendment to this Agreement must be in writing and signed by the Member.

 

13.        Governing Law.                This  Agreement  is  governed  by  and  shall  be  construed  in accordance with the laws of the State of Colorado (excluding its conflict-of-laws rules).

 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

NGL ENERGY PARTNERS LP , as the sole member of NGL Energy Equipment LLC

 

 

 

By: NGL Energy Holdings, LLC, its General Partner

 

 

 

 

 

/s/ H. Michael Krimbill

 

H. Michael Krimbill, Chief Executive Officer

 

5




Exhibit 3.118

 

 

 

Secretary of State
P.O. Box 13697
Austin, TX 78711-3697
FAX: 512/463-5709

 

Filed in the Office of the
Secretary of State of Texas
Filing #: 801760203 04/02/2013
Document #: 473953160002
Image Generated Electronically

Filing Fee: $300

Certificate of Formation
Limited Liability Company

for Web Filing

 

 

Article 1 - Entity Name and Type

 

The filing entity being formed is a limited liability company. The name of the entity is:

 

CHOYA OPERATING, LLC

 

Article 2 — Registered Agent and Registered Office

 

o  A. The initial registered agent is an organization (cannot be company named above) by the name of:

 

OR

x  B. The initial registered agent is an individual resident of the state whose name is set forth below:

 

Name:

 

TRACY WILLIAMS

 

C. The business address of the registered agent and the registered office address is:

 

Street Address:

4005 FM 2200 W          MOORE   TX    78057

 

Consent of Registered Agent

 

o  A. A copy of the consent of registered agent is attached.

 

OR

 

x  B. The consent of the registered agent is maintained by the entity.

 

Article 3 - Governing Authority

 

x  A. The limited liability company is to be managed by managers.

 

OR

 

o  B. The limited liability company will not have managers. Management of the company is reserved to the members.

 

The names and addresses of the governing persons are set forth below:

 

Manager 1: (Business Name) CHOYA ENERGY, LLC

 

Address: PO BOX 663 DEVINE TX, USA 78016

 

Article 4 - Purpose

 

The purpose for which the company is organized is for the transaction of any and all lawful business for which limited liability companies may be organized under the Texas Business Organizations Code.

 

 

Supplemental Provisions / Information

 



 

[The attached addendum, if any, is incorporated herein by reference.]

NameConsent.pdf

 

 

Organizer

 

The name and address of the organizer are set forth below.

 

TRACY WILLIAMS    PO BOX 629, DEVINE, TX 78016

 

Effectiveness of Filing

 

x  A. This document becomes effective when the document is filed by the secretary of state.

 

OR

 

o  B. This document becomes effective at a later date, which is not more than ninety (90) days from the date of its signing. The delayed effective date is:

 

Execution

 

The undersigned affirms that the person designated as registered agent has consented to the appointment. The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of law governing the entity to execute the filing instrument.

 

/s/ TRACY WILLIAMS

 

 

Signature of Organizer

 

 

 

FILING OFFICE COPY

 



 

Choya Energy, LLC
PO Box 663
Devine, TX 78016
(956) 763-4402

 

April 2, 2013

 

Office of the Secretary of State
Corporations Section

 

Re: Consent for Name

 

To Whom it may concern:

 

Choya Energy, LLC gives consent for Choya Operations to use the name “Choya” in their Certificate of Formation filing.

 

Sincerely,

 

 

 

 

 

/s/ Tracy Williams

 

 

Tracy Williams

 

 

Manager

 

 

 




Exhibit 3.119

 

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

CHOYA OPERATING, LLC

 

A Texas Limited Liability Company

 

This SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (“ Agreement ”) of Choya Operating, LLC (“ Company ”), dated as of the 15 th  day of September, 2016, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.             Formation . The Company was organized as a Texas limited liability company under and pursuant to the Texas Limited Liability Company Act (as amended from time to time, the “ Act ”).  The business of the Company shall be conducted under the name Choya Operating, LLC or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

 

2.             Member . NGL Water Solutions Eagle Ford, LLC, a Delaware limited liability company, shall be the sole member of the Company (“ Member ”).

 

3.             Contributions . Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

4.             Units . Ownership in the Company shall be represented by membership units (“ Units ”).  Such Units shall not be represented by written certificates unless otherwise approved by the Member.  The Member is the record and beneficial owner of 1,000 Units, representing all the issued and outstanding Units of the Company.

 

5.             Distributions . The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

6.             Management . The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company.  Officers shall have such rights and duties as may be designated by the Member.

 

7.             Indemnification .

 

(a)           For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)           For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined

 



 

in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)           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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”), 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  Any indemnification pursuant to this Section 7 shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)           To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7 .

 

(e)           The indemnification provided by this Section 7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)            The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in

 

2



 

connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)           For purposes of this Section 7 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7(c) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)           In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)            An Indemnitee shall not be denied indemnification in whole or in part under this Section 7 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.

 

(j)            The provisions of this Section 7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)           The Company’s obligation to indemnify and to prepay expenses under sub-paragraphs (c) and (d) of this Section 7 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed.  No amendment, modification or repeal of this Section 7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7 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.

 

8.             Limitation of Liability .

 

(a)           Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of

 

3



 

competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)           To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)           Any amendment, modification or repeal of this Section 8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 8 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.

 

(d)           The Member, in its management capacity of the Company, may rely upon, 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.

 

(e)           The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

9.             Dissolution . The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act.  No other event will cause the Company to dissolve.

 

10.          Texas Statutes .  Nothing in this Agreement is intended or is to be construed to vary the obligation of any member, under the law of the State of Texas, to discharge its obligations under this Agreement.  Any provision of this Agreement which appears to contravene the law of the State of Texas will be deemed to the extent necessary to avoid conflict therewith.

 

11.          Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

12.          Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal

 

4



 

and enforceable to the maximum extent possible.

 

13.          Amendment .  This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

14.          Governing Law .  This Agreement is governed by and shall be construed in accordance with the laws of the State of Texas (excluding its conflict-of-laws rules).

 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

NGL Water Solutions Eagle Ford, LLC

 

 

 

 

 

By:

/s/ Kurston P. McMurray

 

Name:

Kurston P. McMurray

 

Title:

Senior Vice President, General Counsel And Secretary

 

5




Exhibit 3.120

 

Delaware
The First State

 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF FORMATION OF “OPR, LLC”, FILED IN THIS OFFICE ON THE NINETEENTH DAY OF AUGUST, A.D. 2015, AT 1:41 O’CLOCK P.M.

 

 

 

GRAPHIC

 

 

/s/ Jeffrey W. Bullock

5806619 8100

Jeffrey W. Bullock, Secretary of State

 

AUTHENTICATION :

 

2659025

151191280

DATE:

 

08-19-15

 

 

You may verify this certificate online at corp.delaware.gov/authver.shtml

 

1



 

 

State of Delaware
Secretary of State
Division of Corporations
Delivered 01:51 PM 08/19/2015
FILED 01:41 PM 08/19/2015
SRV 151191280 - 5806619 FILE

 

STATE of DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE
of FORMATION

 

First: The name of the limited liability company is OPR, LLC

 

Second: The address of its registered office in the State of Delaware is 1209 Orange Street in the City of Wilmington. Zip code 19801. The name of its Registered agent at such address is The Corporation Trust Company

 

Third: (Use this paragraph only if the company is to have a specific effective date of dissolution: “The latest date on which the limited liability company is to dissolve is                                               .”)

 

Fourth: (Insert any other matters the members determine to include herein.)

 

 

 

 

In Witness Whereof, the undersigned have executed this Certificate of Formation this 19 day of August, 2015.

 

 

 

By:

/s/ Norine Nagel

 

 

 

Authorized Person (s)

 

 

 

 

 

 

Name:

Norine Nagel

 




Exhibit 3.121

 

FIRST AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

OPR, LLC

a Delaware Limited Liability Company

 

This FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (“ Agreement ”) of OPR, LLC (“ Company ”), dated March 1, 2017, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.             Formation . The Company has been organized as a Delaware limited liability company under and pursuant to the Delaware Limited Liability Company Act (as amended from time to time, the “ Act ”).  The business of the Company shall be conducted under the name OPR, LLC or such other names that comply with applicable law as the Member (as defined below) may from time to time deem necessary or desirable.

 

2.             Purpose.   The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act.  The Company shall have all power necessary or convenient to the conduct, promotion or attainment of such acts and activities.

 

3.             Member . Osterman Propane, LLC, a Delaware limited liability company, shall be the sole member of the Company (“ Member ”).

 

4.             Contributions . Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

5.             Units . Ownership in the Company shall be represented by membership units (“ Units ”).  Such Units shall not be represented by written certificates unless otherwise approved by the Member.  The Member is the record and beneficial owner of 100 Units, representing all the issued and outstanding Units of the Company.

 

6.             Distributions . The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

7.             Management . The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company.  Officers shall have such rights and duties as may be designated by the Member.

 



 

8.             Indemnification .

 

a.     For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

b.     For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

c.     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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”), 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  Any indemnification pursuant to this Section shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

d.     To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 8(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section, the Indemnitee is not entitled to be

 

2



 

indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section.

 

e.     The indemnification provided by this Section shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

f.     The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.

 

g.     For purposes of this Section, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 8c ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

h.     In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

i.      An Indemnitee shall not be denied indemnification in whole or in part under this Section 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.

 

j.      The provisions of this Section are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

k.     The Company’s obligation to indemnify and to prepay expenses

 

3



 

under sub-paragraphs c and d of this Section shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed.  No amendment, modification or repeal of this Section or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 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.

 

9.             Limitation of Liability .

 

a.     Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.

 

b.     To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

c.     Any amendment, modification or repeal of this Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 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.

 

d.     The Member, in its management capacity of the Company, may rely upon, 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.

 

4



 

e.     The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

10.          Dissolution . The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act.  No other event will cause the Company to dissolve.

 

11.          Delaware Statutes .  Nothing in this Agreement is intended or is to be construed to vary the obligation of any member, under the law of the State of Delaware, to discharge its obligations under this Agreement.  Any provision of this Agreement which appears to contravene the law of the State of Delaware will be deemed to the extent necessary to avoid conflict therewith.

 

12.          Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

13.          Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.

 

14.          Amendment .  This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member.

 

15.          Governing Law .  This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware (excluding its conflict-of-laws rules).

 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

OSTERMAN PROPANE, LLC

 

 

 

 

 

By:

/s/ Kurston P. McMurray

 

 

Kurston P. McMurray

 

 

General Counsel, Sr. Vice President and Secretary

 

5




Exhibit 3.122

 

CORPORATE ACCESS NUMBER: 2017241023

 

Government

of Alberta

 

BUSINESS CORPORATIONS ACT

 

CERTIFICATE

 

OF

 

INCORPORATION

 

HIGH SIERRA ENERGY CANADA ULC

WAS INCORPORATED IN ALBERTA ON 2013/01/16.

 

 




Exhibit 3.123

 

BY-LAW NO. 1

 

A BY-LAW RELATING GENERALLY TO THE

TRANSACTION OF THE BUSINESS AND AFFAIRS OF

HIGH SIERRA ENERGY CANADA ULC

(the Corporation )

 

CONTENTS

 

 

PART

 

SUBJECT

 

 

 

 

 

 

 

One

 

Interpretation

 

 

Two

 

Directors

 

 

Three

 

Business of the Corporation

 

 

Four

 

Committees

 

 

Five

 

Protection of Directors and Officers

 

 

Six

 

Shares

 

 

Seven

 

Meetings of Shareholders

 

 

Eight

 

Dividends

 

 

Nine

 

Information Available to Shareholders

 

 

Ten

 

Notices

 

 

PART ONE

INTERPRETATION

 

1.01                         Definitions

 

In this By-Law, unless the context otherwise requires, terms and phrases defined in Section 1 of the Act shall have the meanings ascribed to them therein, and;

 

Act means the Business Corporations Act of Alberta, and any statute that may be substituted therefor, as from time to time amended;

 

appoint includes elect, and vice versa;

 

Articles means the Articles of Incorporation of the Corporation as from time to time amended or restated;

 

Board means the board of directors of the Corporation;

 

By-Laws means this By-Law and any other by-laws of the Corporation from time to time in force and effect;

 

record address means (i) in the case of a shareholder, his address as recorded in the securities register, (ii) in the case of joint shareholders, the address appearing in the securities register in respect of such joint holding or the first address so appearing if there are more than one. and (iii) in the case of a director, officer, auditor or member of a committee of the Board, his latest address as recorded in the records of the Corporation;

 



 

securities register means the securities register required to be maintained by the Corporation with respect to securities issued by it:

 

share means a share of the Corporation, and shareholder means a shareholder of the Corporation; and

 

shareholders meeting means any meeting of shareholders, including an annual meeting of shareholders, a special meeting of shareholders, and a meeting of the holders of any one or more classes or series of shares;

 

signing officer means, in relation to any instrument, any person authorized to sign the same on behalf of the Corporation pursuant to a resolution of the Board.

 

In the event of any conflict between a definition ascribed to a term or phrase herein and a definition ascribed to the same term or phrase in the Act, the definition provided for herein shall take precedence.

 

1.02                         Included Words

 

Words importing gender include the masculine, feminine and neuter genders, and words importing persons include individuals, bodies corporate, partnerships, trusts, unincorporated organizations and other entities

 

1.03                         Conflicts

 

Except as otherwise provided in the last sentence of section 1.01 hereof, in the event of any conflict between the provisions of this By-Law and the provisions of the Act, the Articles or any unanimous shareholders agreement relating to the Corporation, the provisions of the Act, the Articles or the unanimous shareholder agreement, as applicable, shall govern.

 

1.04                         Headings

 

The insertion of headings in this By-Law is for convenience of reference only and shall not affect the interpretation hereof.

 

1.05                         Invalidity of Provisions

 

The invalidity or unenforceability of any provision of this By-Law shall not affect the validity or enforceability of the remaining provisions hereof.

 

PART TWO

DIRECTORS

 

2.01                         Number of Directors

 

The Board shall consist of not fewer than the minimum number and not more than the maximum number of directors provided in the Articles. Subject thereto, the number of directors of the Corporation shall be determined from time to time by ordinary resolution of the shareholders or, in the absence of any such resolution, by resolution of the Board.

 

2.02                         Quorum

 

At any time at which there is more than one director of the Corporation, a quorum for the transaction of business at a meeting of the Board shall consist of at least two directors representing a majority of the Board, or such greater or lesser number of directors as the Board may from time to time determine.

 

2.03                         Action by the Board

 

Subject to the Act and the Articles, the powers of the Board may be exercised by resolution passed at a meeting at which a quorum is present or by resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the Board. At all meetings of the Board every question shall be decided by

 

2



 

a majority of the votes cast on the question. In the event of a tie vote, the chairman of the meeting shall not be entitled to a second vote to break the tie.

 

2.04                         Calling of Meetings

 

Meetings of the Board shall be held at such time and at such place as the Board, the chairman of the Board, the president or any two directors may determine, and the secretary or any other officer may give notice of meetings when so directed or authorized by such persons.

 

2.05                         Place of Meetings

 

Subject to the Act, meetings of the Board may be held at any place in or outside Alberta. A director who attends a meeting of directors, in person or by telephone, is deemed to have consented to the location of the meeting except when he attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully constituted.

 

2.06                         Notice of Meeting

 

Except in the case of regular meetings under Section 2.09, notice of the time and place of each meeting of the Board shall be given to each director in the manner provided in the Act, not less than forty-eight hours before the time at which the meeting is to be commenced. Such notice shall indicate the purpose of and business intended to be transacted at the meeting, and may be given orally or in writing, by telephone, fax or any other reasonable means of communication.

 

2.07                         Meetings by Telephone

 

With the consent of the chairman of the meeting, or the consent of a majority of the directors present at the meeting, a director may participate in a meeting of the Board or of a committee of the Board by means of telephone or other communications facilities that permit all persons participating in the meeting to hear each other, and a director participating in a meeting by those means shall be considered to be present at the meeting.

 

2.08                         First Meeting of New Board

 

Provided a quorum of directors is present, the Board may without notice hold a meeting immediately following an annual shareholders meeting.

 

2.09                         Regular Meetings

 

The Board may from time to time appoint a day or days in any month or months for regular meetings of the Board at a place and hour to be named. A copy of any resolution of the Board fixing the place and time of such regular meetings shall be sent to each director forthwith after being passed, or forthwith after such director’s appointment, whichever is later, but no other notice shall be required for any such regular meeting except where the Act or this By-Law requires the purpose thereof or the business to be transacted thereat to be specified.

 

2.10                         Chairman

 

Unless a separate chairman of the Board is appointed by the Board, the president shall also be the chairman of the Board. The chairman of any meeting of the Board shall be the first mentioned of such of the following officers as have been appointed and who is a director and is present at the meeting: chairman of the Board, president or a vice-president (in order of seniority). If no such officer is present, the directors present shall choose one of their number to be chairman.

 

2.11                         Adjournments

 

Any meeting of the Board may be adjourned to such time and place as the directors present thereat may by resolution determine. The adjourned meeting shall be duly re-constituted if a quorum is present at the time and place to which the meeting has been adjourned, and if it complies with any other material terms

 

3



 

of the adjournment. If the adjourned meeting is not so duly re-constituted, the meeting shall be deemed to have terminated at the time of its adjournment.

 

2.12                         Remuneration and Expenses

 

The directors shall be paid such remuneration for their services as the Board may from time to time determine. The directors shall also be entitled to be reimbursed for traveling and other expenses properly incurred by them in attending meetings of the Board or any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity and receiving remuneration therefor.

 

PART THREE

BUSINESS OF THE CORPORATION

 

3.01                         Fiscal Year

 

The fiscal year of the Corporation shall be such fiscal year as the Board may from time to time determine.

 

3.02                         Officers

 

The Board may from time to time appoint one or more officers of the Corporation and, without prejudice to rights under any employment contract, may remove any officer of the Corporation. The powers and duties of each officer of the Corporation shall be those determined from time to time by the Board and, in the absence of such determination, shall be those usually incidental to the office held.

 

3.03                         Financial Matters

 

Without limiting the generality of the power and authority conferred on the Board under the Act, the Board shall have the full power and authority to conduct all financial business of the Corporation (including, without limitation, (i) the raising or borrowing of money and the granting of security therefor by way of mortgage, charge or other security interest on all or any portion of the Corporation’s assets, property or undertaking, and (ii) the conduct of banking and related activities), and to delegate authority in respect thereof, on such terms as the Board may in its discretion consider appropriate.

 

3.04                         Delegation of Authority

 

The Board may from time to time at its discretion authorize any one or more persons to enter into contracts, agreements, arrangements and other commitments on behalf of the Corporation or otherwise to acquire or exercise rights or undertake or satisfy obligations on behalf of the Corporation, on such terms and conditions as the Board may consider appropriate.

 

3.05                         Corporate Seal

 

The corporate seal of the Corporation, if any, shall be in such form as the Board may from time to time by resolution approve, and may be imprinted on any instrument of the Corporation by any director, officer or agent authorized by the Board.

 

3.06                         Agents and Attorneys

 

The Board may from time to time to appoint agents or attorneys for the Corporation in or outside Canada with such powers of management or otherwise (including the power to sub-delegate) as the Board may consider appropriate.

 

3.07                         Voting Rights in Other Bodies Corporate

 

The Board may authorize any one or more directors, officers or agents to execute and deliver proxies and arrange for the issuance of voting certificates or other evidence of the right to exercise the voting rights

 

4



 

attaching to any securities held by the Corporation. Such instruments, certificates or other evidence shall be in favour of such person or persons as may be determined by the authorized person or persons executing such proxies or arranging for the issuance of voting certificates or such other evidence of the right to exercise such voting rights. In addition, the Board or any one or more directors, officers or agents so authorized may from time to time direct the manner in which and the person or persons by whom any particular voting rights or class of voting rights may or shall be exercised.

 

3.08                         Corporate and Securities Filings

 

The president, the secretary or any other director, officer or agent authorized by the Board or the president may execute and file on behalf of the Corporation insider trading reports and other filings of any nature whatsoever required under applicable corporate or securities laws.

 

PART FOUR

COMMITTEES

 

4.01                         Transaction of Business

 

The powers of a committee of directors may be exercised by resolution passed at a meeting at which a quorum is present or by resolution in writing signed by all the members of such committee who would have been entitled to vote on that resolution at a meeting of the committee. Meetings of any such committee may be held at any place in or outside Canada.

 

4.02                         Procedure

 

Unless otherwise determined by the Board, a quorum for meetings of any committee of directors shall be a majority of its members, each committee shall have the power to appoint its chairman, and the rules for calling, holding, conducting and adjourning meetings of the committee shall be the same as those governing the Board. Each member of a committee shall serve at the pleasure of the Board, and, in any event, only so long as he shall be a director. The Board may fill vacancies in a committee by appointment from among its members. Provided that a quorum is maintained, the committee may continue to exercise its powers notwithstanding any vacancy among its members.

 

PART FIVE

PROTECTION OF DIRECTORS AND OFFICERS

 

5.01                         Limitation of Liability

 

Except as may otherwise be expressly provided in the Act, no director or officer of the Corporation shall have any personal liability for any act, receipt, neglect or default of any other director, officer, employee, consultant or advisor of the Corporation, or for any act or thing done for or on behalf of the Corporation, or for any failure to perform or do any act or thing for or on behalf of the Corporation, or otherwise for any loss, costs, damages or liability of any nature suffered or incurred by the Corporation or any shareholder, creditor or other obligee of the Corporation, except to the extent that any such loss, costs, damages or liability are directly attributable to a conscious or careless disregard of such person’s obligation to act honestly and in good faith with a view to the best interests of the Corporation.

 

5.02                         Indemnification

 

The Corporation shall, to the maximum extent permitted by the Act, indemnify and save harmless each present and former director and officer of the Corporation (in each case, an Indemnified Person ) against and from all liabilities, claims, costs, damages, fines, penalties, charges and expenses (including, without limitation, reasonable legal fees and disbursements on a full indemnity basis, and any amount reasonably paid to settle an action or satisfy a judgment) suffered or incurred by such Indemnified Person in

 

5



 

connection with any civil, criminal, administrative or other claim, action or proceeding to which he is made a party by reason of his being or having been a director or officer of the Corporation or any other entity of which the Corporation is or was a shareholder, creditor or other obligee, or in any way caused by or arising from or in consequence of any act or omission or alleged act or omission arising out of or in connection with the activities of the Indemnified Person in his role as a director or officer of the Corporation, or believed by the Indemnified Person to be in furtherance of the interests of the Corporation, and the Corporation shall do all things reasonably required of it to give full effect to such indemnification; provided, however, that no Indemnified Person shall be entitled to any indemnification in respect of any such liabilities, claims, costs, damages, fines, penalties, charges or expenses if, and to the extent that, they arise out of any act or omission involving a conscious or careless disregard of the Indemnified Person’s obligation to act honestly and in good faith with a view to the best interests of the Corporation.

 

Upon becoming aware of any assertion or claim of liability or culpability for any matter or thing in respect of which an Indemnified Person may be entitled to indemnification under this Section 5.02 (in each case, a Claim ) , the Indemnified Person shall notify the Corporation as soon as reasonably practicable of the nature of the Claim (provided that the failure to so notify shall not affect the Corporation’s liability under this Section 5.02 except to the extent, if any, that such failure prejudices the Corporation’s ability to defend the Claim), and the Corporation shall be entitled (but not required) to assume the defence of the Claim at the Corporation’s expense, provided that the defence of the claim by the Corporation shall be conducted through legal counsel acceptable to the Indemnified Person, acting reasonably, and no admission of liability or settlement in respect of the Claim may be made by the Corporation or the Indemnified Person without the prior written consent of the other, such consent not to be unreasonably withheld. The Indemnified Person shall have the right to retain separate counsel to act on his behalf and participate in the defence of the Claim, provided that the Corporation shall not be liable for the fees and disbursements of such counsel unless (i) the Corporation fails to assume the defence of the Claim on behalf of the Indemnified Person within a reasonable period of time after the Corporation receives notice of the Claim, or to diligently pursue such defence, or (ii) the representation of both the Indemnified Person and the Corporation by the same counsel would be inappropriate due to actual or potential differing interests between them (in which case the Corporation shall not have the right to assume the defence of the Claim insofar as it relates to the Indemnified Person), in either of which events the reasonable fees and disbursements of the Indemnified Person’s counsel shall be paid by the Corporation on a full indemnity basis. Any such fees and disbursements that are or may be payable by the Corporation shall be paid or reimbursed by the Corporation as they are incurred by the Indemnified Person in advance of the final disposition of the Claim, provided that the Indemnified Person provides the Corporation with an undertaking to repay such amounts if it is ultimately determined that he is not entitled to them.

 

5.03                         Participation in Proceedings

 

If any Indemnified Person is at any time required to testify or otherwise participate in any civil, criminal, administrative or other investigation, inquiry, action or proceeding concerning the Corporation (in each case, a Proceeding ) , then, unless the Proceeding is in respect of a matter for which the Indemnified Person is personally liable and not entitled to indemnification under Section 5.02, the Corporation shall:

 

(a)                                  pay or reimburse the Indemnified Person for all reasonable costs and expenses incurred by him in connection therewith (including, without limitation, the reasonable fees and disbursements, on a full indemnity basis, of any independent legal counsel engaged by the Indemnified Person, insofar as the same would be recoverable in keeping with the principles set out in Section 5.02); and

 

(b)                                  if the Indemnified Person is not otherwise being compensated in the normal course of his service with the Corporation, pay the Indemnified Person a reasonable per diem fee for time reasonably spent in preparing for and participating in the Proceedings.

 

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5.04                         Insurance

 

Subject only to any limitations that may be imposed by the Act, the Corporation shall purchase and maintain such insurance as the Board may from time to time consider appropriate for purposes of providing coverage for such matters and things as Indemnified Persons are entitled to indemnification against under Section 5.02.

 

5.05                         Reliance and Enurement

 

Every person who becomes a director or officer of the Corporation shall automatically become entitled to rely on and enforce the provisions of this Part Five as a contractual term of his engagement, and shall remain so entitled after ceasing to be a director or officer of the Corporation, and the provisions of this Part Five shall enure to the benefit of each such person’s estate, heirs and legal representatives.

 

PART SIX

SHARES

 

6.01                         Non-Recognition of Trusts

 

Subject to the provisions of the Act, the Corporation may treat as the absolute owner of any share the person in whose name the share is registered in the securities register as if that person had full legal capacity and authority to exercise all rights of ownership, irrespective of any indication to the contrary through knowledge or notice or description in the Corporation’s records or on a share certificate.

 

6.02                         Share Certificates

 

Share certificates and acknowledgements of a shareholder’s right to a share certificate, shall, subject to the Act, be in such form as the Board shall from time to time approve, and shall be issued under the signature of such officer or officers as the Board shall from time to time direct. The signatures of such officers may be printed or mechanically reproduced in facsimile upon share certificates and shall for purposes thereof be deemed to be the signature of the officer whose signature it reproduces and be binding upon the Corporation.

 

6.03                         Replacement of Share Certificates

 

The Board or any officer or agent designated by the Board may in its or his discretion direct the issuance of a new share certificate in lieu of and upon cancellation of a share certificate that has been mutilated, or in substitution for a share certificate claimed to have been lost destroyed or wrongfully taken, on payment of such fee, not exceeding $25.00, and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the Board may from time to time prescribe, whether generally or in any particular case.

 

6.04                         Joint Shareholders

 

If two or more persons are registered as joint holders of any share:

 

(a)                                  the Corporation shall record only one address on its books for such joint holders;

 

(b)                                  the address of such joint holders for all purposes with respect to the Corporation shall be such record address; and

 

(c)                                   any one of such persons may give effectual receipts for any certificate issued in respect thereof or for any dividend, bonus, return or capital or other money payable or warrant issuable in respect of such share.

 

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6.05                         Registration of Transfer

 

Subject to the provisions of the Act, no transfer of shares shall be registered in the securities register except upon presentation of the certificate representing such shares with a transfer endorsed thereon or delivered therewith duly executed by the registered holder or by his attorney or successor duly appointed, together with such reasonable assurance or evidence of signature, identification and authority to transfer as the Board may from time to time prescribe, upon payment of all applicable taxes and any fees prescribed by the Board, upon compliance with such restrictions on transfer as are provided for in the Articles, and upon satisfaction of any lien referred to in Section 6.07 hereof.

 

6.06                         Deceased Shareholders

 

In the event of the death of a holder, or of one of the joint holders, of any share, the Corporation shall not be required to make any entry in the securities register in respect thereof or to make payment of any dividends thereon except upon production of all such documents as may be required by law and upon compliance with the reasonable requirements of the Corporation and its transfer agents in respect thereof.

 

6.07                         Lien for Indebtedness

 

If the Articles provide that the Corporation has a lien on shares registered in the name of a shareholder or his legal representative for a debt of that shareholder to the Corporation, such lien may be enforced, subject to the Act and to any other provision of the Articles or any unanimous shareholder agreement, by the sale of the shares thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and, pending such enforcement, the Corporation may refuse to register a transfer of any such shares.

 

PART SEVEN

MEETINGS OF SHAREHOLDERS

 

7.01                         Calling of Meetings

 

Shareholders meetings shall be held at such time and at such place as the Board or the president may determine, and the secretary or any other officer may give notice of a shareholders meeting when so directed by the Board or the president.

 

7.02                         Place of Meetings

 

Shareholders meetings shall be held at the registered office of the Corporation or elsewhere in the municipality in which the registered office is situate, or, if all the shareholders entitled to vote at the meeting so agree, at some other place in or outside Alberta.

 

7.03                         Persons Entitled to be Present

 

The only persons entitled to be present at a shareholders meeting are the shareholders entitled to vote thereat, the directors and auditors of the Corporation, and such other persons as are entitled or required under any provision of the Act, the Articles or the By-Laws to be present at the meeting. Any other person may be admitted only on the invitation of the chairman of the meeting or with the consent of the meeting determined by majority vote.

 

7.04                         Chairman and Secretary

 

The chairman of any shareholders meeting shall be the chairman of the Board or, in his absence, the president of the Corporation. If neither such officer is present within fifteen minutes from the time fixed for the commencement of the meeting, the persons present and entitled to vote shall choose one of their number to be chairman. If the secretary of the Corporation is absent, the chairman shall appoint some person, who need not be a shareholder, to act as secretary of the meeting.

 

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7.05                         Quorum

 

At any time at which there is more than one shareholder entitled to be present and vote at a shareholders meeting, a quorum for the transaction of business at the meeting shall be at least two persons present in person, each being a shareholder entitled to vote thereat or a duly appointed proxy or representative for an absent shareholder so entitled, and representing in the aggregate not less than a majority of the votes attached to outstanding shares of the Corporation carrying voting rights exercisable at the meeting.

 

7.06                         Absence of Quorum

 

If at any shareholders meeting duly called a quorum is not achieved, such meeting shall be adjourned to such date, being no less than fifteen (15) days later, and such time and place as may be determined by the chairman of the meeting. At least ten (10) days notice shall be given of such adjourned meeting but it shall not be necessary in such notice to specify the purpose for which the meeting was originally called. At such adjourned meeting the voting shareholders present thereat or represented by proxy or representative may transact the business for which the meeting was originally convened, without regard to section 7.05,

 

7.07                         Right to Vote

 

If the Corporation is required to prepare a shareholder list pursuant to the Act, each person named therein shall be entitled to vote the shares attributed to him therein at the shareholders meeting to which such list relates, provided that:

 

(a)                                  if the Corporation has fixed a record date in respect of such meeting, and any such person has transferred any of his shares after such record date or, if the Corporation has not fixed a record date in respect of such meeting, and any such person has transferred any of his shares after the date on which such list is prepared, and

 

(b)                                  the transferee of such shares, having produced properly endorsed certificates evidencing such shares or having otherwise established that he owns such shares, has demanded not less than ten (10) days before the meeting that his name be included in such list,

 

then, provided that there has been compliance with any restrictions on the transfer of the subject shares, the transferee shall be entitled to vote the transferred shares at such meeting. If the Corporation is not required to prepare a shareholder list, then, subject to the provisions of the Act and this By-Law as to proxies and representatives, the persons entitled to vote at a shareholders meeting shall be those persons who are at the time of the meeting entered in the securities register as the holders of one or more shares carrying the right to vote at such meeting, and each such person shall be entitled to vote the shares then shown in the securities register as being held by him.

 

7.08                         Corporate Representatives

 

The authority of an individual to represent a body corporate or association at a shareholders meeting shall be established by depositing with the Corporation a certified copy of an authorizing resolution, or in such other manner as may be satisfactory to the secretary of the Corporation or the chairman of the meeting.

 

7.09                         Time for Deposit of Proxies

 

Subject to the Act, a proxy shall be acted upon only if it shall have been deposited with the Corporation or its authorized agent prior to the time specified therefor in the notice of the particular shareholders meeting, or, if no such time is specified in such notice, if it has been received by the secretary of the Corporation or by the chairman of the meeting prior to the commencement of the meeting.

 

7.10                         Voting

 

Whenever a matter is put to a vote at a shareholders meeting, voting shall be effected by a show of hands unless a ballot on the matter is required or requested by a person entitled to vote on the matter. In any

 

9



 

case of a vote by way of a show of hands, a declaration by the chairman of the meeting as to the result of the vote, and an entry to that effect in the minutes of the meeting, shall be prima facie evidence of that result without need for particulars of the number or proportion of the votes recorded in favour of or against the resolution or other matter to which the vote relates.

 

7.11                         Ballots

 

Whenever a vote by way of ballot is required or requested it shall be taken in such manner as the chairman of the meeting shall direct. A requirement or request for a ballot may be withdrawn at any time prior to the taking of the ballot. If a ballot is taken, each person present shall be entitled, in respect of the shares which he is entitled to vote at the meeting on the matter in question, to that number of votes provided by the Act or the Articles, and the result of the ballot shall constitute the decision of the shareholders.

 

7.12                         Admission or Rejection of a Vote

 

In case of any dispute as to the admission or rejection of a vote, the chairman shall determine the same and such determination made in good faith shall be final and conclusive.

 

7.13                         Casting Vote

 

In case of a tie vote either upon a show of hands or upon a ballot, the chairman of the meeting shall not be entitled to a second or casting vote to break the tie.

 

7.14                         Meetings by Telephone

 

With the consent of the chairman of the meeting, or the consent of the meeting determined by majority vote, any shareholder or other person entitled to attend a shareholders meeting may participate in that meeting by means of telephone or other communication facilities that permit all persons participating in the meeting to hear each other, and a person participating in a meeting by those means shall be deemed to be present at the meeting.

 

PART EIGHT

DIVIDENDS

 

8.01                         Dividend Cheques

 

A dividend payable in cash shall be paid by cheque of the Corporation, or any dividend paying agent appointed by the Board, to the order of each registered holder of shares of the class or series in respect of which the dividend has been declared, and may be mailed by ordinary prepaid mail to such registered holder at his record address or such other address as he may have directed in writing. In the case of joint holders the cheque shall, unless all such joint holders otherwise direct in writing, be made payable to the order of all such joint holders and mailed to them at their record address. The mailing of any such cheque as aforesaid, unless the same is not paid on due presentation, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount of any tax which the Corporation is required to and does withhold.

 

8.02                         Non-receipt of Cheques

 

In the event of the non-receipt of a dividend cheque by the person to whom the same has been sent, the Corporation shall issue to such person a replacement cheque for a like amount on such terms as to indemnity, reimbursement of expenses and evidence of non-receipt as the Board may from time to time prescribe, whether generally or in any particular case.

 

8.03                         Unclaimed Dividends

 

Any dividend unclaimed after a period of six years from the date on which the same has been declared to be payable shall be forfeited and shall revert to the Corporation.

 

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PART NINE

INFORMATION AVAILABLE TO SHAREHOLDERS

 

9.01                         Subject to any rights conferred by the Act, the Board may from time to time determine whether and to what extent and at what time and place and under what circumstances or regulations the documents, books, registers and accounting records of the Corporation or any of them shall be open to inspection by shareholders, and no shareholder or other person shall have any right to inspect any document, book, register or accounting record of the Corporation except to the extend provided by the Act or authorized by the Board or a special resolution of the shareholders.

 

PART TEN

NOTICES

 

10.01                  Notice of Joint Shareholders

 

If two or more persons are registered as joint holders of any share, any notice to them shall be addressed to all such joint holders but need be sent only to their single record address as provided in Section 6.04 hereof, and notice so given shall be sufficient notice to all of the joint holders.

 

10.02                  Omissions and Errors

 

Except in a case in which material prejudice results, the accidental omission to give any notice to any shareholder, director, officer, auditor or member of a committee of the Board, or the non-receipt of any notice by any such person, or any error in any notice not affecting the substance thereof, shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise founded thereon.

 

10.03                  Persons Entitled by Death or Operation of Law

 

Every person who by transfer, operation of law, death of a shareholder or any other means whatsoever becomes entitled to a share shall be bound by every notice in respect of such share which shall have been duly given to the shareholder from whom he derives his title to such share prior to the earlier of the time at which he provides the Corporation with satisfactory proof of his entitlement to such share and the time at which his name and address is entered in the securities register with respect to such share, notwithstanding that the subject notice may have been given subsequent to the occurrence of the event entitling him to such share.

 

THIS BY-LAW shall be effective as of January 23, 2013.

 

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Exhibit 3.124

 

 

Colorado Secretary of State

 

 

Date and Time: 09/30/2014 08:37 AM

Document must be filed electronically.

 

ID Number: 20141598926

Paper documents are not accepted.

 

 

Fees & forms are subject to change.

 

Document number: 20141598926

For more information or to print copies

 

Amount Paid: $1.00

of filed documents, visit www.sos.state.co.us.

 

 

 

 

ABOVE SPACE FOR OFFICE USE ONLY

 

Articles of Organization

filed pursuant to § 7-80-203 and § 7-80-204 of the Colorado Revised Statutes (C.R.S.)

 

1. The domestic entity name of the limited liability company is

 

 

 

NGL Water Solutions Mid-Continent, LLC.

 

 

(The name of a limited liability company must contain the term or abbreviation “limited liability company”, “ltd. liability company”, “limited liability co.”, “ltd. liability co.”, “limited”, “l.l.c.”, “llc”, or “ltd.”. See §7-90-601, C.R.S.)

 

(Caution : The use of certain terms or abbreviations are restricted by law. Read instructions for more information.)

 

2.The principal office address of the limited liability company’s initial principal office is

 

Street address

 

3773 Cherry Creek North Drive

 

 

(Street number and name)

 

 

Suite 1000

 

 

Denver

CO

80209

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

 

 

 

United States

 

 

 

(Province — if applicable)

(Country)

 

 

 

Mailing address

 

 

(leave blank if same as street address)

 

(Street number and name or Post Office Box information)

 

 

 

 

 

 

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

.

 

 

 

(Province — if applicable)

(Country)

 

 

 

3.The registered agent name and registered agent address of the limited liability company’s initial registered agent are

 

Name

 

 

 

 

 

(if an individual)

 

 

 

 

 

 

 

(Last)

(First)

(Middle)

(Suffix)

or

 

 

 

 

 

 

 

 

 

 

 

(if an entity)

 

the Corporation Company

(Caution : Do not provide both an individual and an entity name.)

 

Street address

 

1675 Broadway

 

 

 

 

(Street number and name)

 

 

Suite 1200

 

 

Denver

CO

80202

 

 

(City)

(State)

(ZIP Code)

 

Mailing address

 

 

(leave blank if same as street address)

 

(Street number and name or Post Office Box information)

 

 

 

 

1



 

 

 

 

CO

 

 

 

(City)

(State)

(ZIP Code)

 

(The following statement is adopted by marking the box.)

x The person appointed as registered agent has consented to being so appointed.

 

4. The true name and mailing address of the person forming the limited liability company are

 

Name

 

 

 

 

 

(if an individual)

 

Laughlin

William

G.

 

 

 

(Last)

(First)

(Middle)

(Suffix)

or

 

 

 

 

 

 

 

 

 

 

 

(if an entity)

 

 

 

 

 

 

(Caution : Do not provide both an individual and an entity name.)

 

Mailing address

 

3773 Cherry Creek North Drive

 

 

(Street number and name or Post Office Box information)

 

 

Suite 1000

 

 

Denver

CO

80209

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

United States.

 

 

 

(Province — if applicable)

(Country)

 

 

(If the following statement applies, adopt the statement by marking the box and include an attachment.)

o The limited liability company has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in an attachment.

 

5.The management of the limited liability company is vested in

(Mark the applicable box.)

o one or more managers.

or

x the members.

 

6. (The following statement is adopted by marking the box.)

x There is at least one member of the limited liability company.

 

7. (If the following statement applies, adopt the statement by marking the box and include an attachment.)

 

o This document contains additional information as provided by law.

 

8. (Caution : Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has significant legal consequences. Read instructions before entering a date.)

 

 

(If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format.)

The delayed effective date and, if applicable, time of this document is/are

.

 

(mm/dd/yyyy hour:minute am/pm).

 

 

Notice:

 

Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual’s act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes.

 

2



 

This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered.

 

9.The true name and mailing address of the individual causing the document to be delivered for filing are

 

 

 

Laughlin

William

G.

 

 

 

(Last)

(First)

(Middle)

(Suffix)

 

 

3773 Cherry Creek North

 

 

(Street number and name or Post Office Box information)

 

 

Suite 1000

 

 

Denver

CO

80202

 

 

(City)

(State)

(ZIP/Postal Code)

 

 

 

United States.

 

 

 

(Province — if applicable)

(Country)

 

 

(If the following statement applies, adopt the statement by marking the box and include an attachment.)

o This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing.

 

Disclaimer:

 

This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form/cover sheet. Questions should be addressed to the user’s legal, business or tax advisor(s).

 

3




Exhibit 3.125

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

NGL WATER SOLUTIONS MID-CONTINENT, LLC

a Colorado Limited Liability Company

 

This LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) of NGL Water Solutions Mid-Continent, LLC (the “ Company ”) , dated as of the 30th day of September, 2014, is adopted, executed and agreed to by the sole Member (as defined below).

 

1.             Formation . The Company has been organized as a Colorado limited liability company under and pursuant to the Colorado Limited Liability Company Act (as amended from time to time, the “ Act ”). The business of the Company shall be conducted under the name NGL Water Solutions Mid-Continent, LLC or such other names that comply with applicable law as the Member may from time to time deem necessary or desirable.

 

2 .             Member . NGL Water Solutions, LLC, a Colorado limited liability company, shall be the sole member of the Company (the “ Member ”).

 

3.             Contributions . Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

 

4.             Units . Ownership in the Company shall be represented by membership units ( Units ”). Such Units shall not be represented by written certificates unless otherwise approved by the Member. The Member is the record and beneficial owner of 1,000 Units, representing all the issued and outstanding Units of the Company.

 

5.             Distributions . The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits and interests in the Company.

 

6.             Management . The powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member, which shall make all decisions and take all actions for the Company. Notwithstanding the foregoing, the Member may designate one or more persons, who may or may not be members of the Company, as officers (“ Officers ”) of the Company. Officers shall have such rights and duties as may be designated by the Member.

 

7.             Indemnification .

 

(a)           For purposes of this Agreement, “ Person ” shall mean an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

(b)           For purposes of this Agreement, “ Indemnitee ” shall mean: (i) the Member, (ii) any Person who is or was a director, officer, fiduciary, trustee, manager (as such term is defined in the Act) or managing member of the Company or the Member, (iii) any Person who is or was serving at the request of the Member as a director, officer, fiduciary, trustee, manager (as such

 



 

term is defined in the Act) or managing member of another Person owing a fiduciary duty to the Company or the Member; provided, that a Person shall not be an “Indemnitee” by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (iv) any Person that controls the Member and (v) any Person the Member designates as an “Indemnitee” for purposes of this Agreement.

 

(c)           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 Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, any “ Proceeding ”) , 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 and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful. Any indemnification pursuant to this Section 7 shall be made only out of the assets of the Company, it being agreed that the Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.

 

(d)           To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7(c)  in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7 .

 

(e)           The indemnification provided by this Section 7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to the consent of the Member, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.

 

(f)            The Company may purchase and maintain insurance, on behalf of the Company, its affiliates, the Indemnitees and such other Persons as the Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Company’s or any of its affiliate’s activities or such Person’s activities on behalf of the Company or any of its affiliates, regardless of whether the Company would have

 

2



 

the power to indemnify such Person against such liability under the provisions of this Agreement.

 

(g)           For purposes of this Section 7 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7(c) : and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.

 

(h)           In no event may an Indemnitee subject the Member to personal liability by reason of the indemnification provisions set forth in this Agreement.

 

(i)            An Indemnitee shall not be denied indemnification in whole or in part under this Section 7 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.

 

(j)            The provisions of this Section 7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other persons.

 

(k)           The Company’s obligation to indemnify and to prepay expenses under subparagraphs (c) and (d) of this Section 7 shall arise, and all rights granted to the Indemnitees hereunder shall vest, at the time of the occurrence of the transaction or event to which a Proceeding relates, or at the time that the action or conduct to which such Proceeding relates was first taken or engaged in (or omitted to be taken or engaged in), regardless of when such Proceeding is first threatened, commenced or completed. No amendment, modification or repeal of this Section 7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7 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.

 

8.             Limitation of Liability.

 

(a)           Notwithstanding anything to the contrary set forth in this Agreement and to the full extent permitted by applicable law, no Indemnitee shall be liable for monetary damages to the Company, the Member or any other persons who have acquired ownership interests in the Units, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter,

 

3



 

acted with knowledge that the Indemnitee’s conduct was criminal.

 

(b)           To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Member, the Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or the Member for such Indemnitee’s good faith reliance on the provisions of this Agreement.

 

(c)           Any amendment, modification or repeal of this Section 8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 8 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.

 

(d)           The Member, in its management capacity of the Company, may rely upon, 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.

 

(e)           The Member, in its management capacity of the Company, 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 to be taken in reliance upon the advice or opinion (including an opinion of counsel) of such persons as to matters that the Member, in its management capacity of the Company, 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 advice or opinion.

 

9.             Dissolution . The Company shall dissolve and its affairs shall be wound up upon (a) the consent of the Member or (b) the entry of a decree of judicial dissolution under the Act. No other event will cause the Company to dissolve.

 

10.          Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

 

11.          Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part refonned so that it would be valid, legal and enforceable to the maximum extent possible.

 

12.          Amendment . This Agreement may be amended by the Member; provided, that any amendment to this Agreement must be in writing and signed by the Member,

 

13.          Governing Law . This Agreement is governed by and shall be construed in accordance with the laws of the State of Colorado (excluding its conflict-of-laws rules).

 

4



 

IN WITNESS WHEREOF, the Member has adopted, executed and agreed to this Agreement effective as of the date first set forth above.

 

 

MEMBER:

 

 

 

NGL WATER SOLUTIONS, LLC

 

 

 

By:

/s/ William G. Laughlin

 

Name:

William G. Laughlin

 

Its:

Senior Vice President - Legal and Secretary

 

5




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Exhibit 5.1

LOGO

  Andrews Kurth Kenyon LLP
600 Travis, Suite 4200
Houston, Texas 77002
+1.713.220.4200 Phone
+1.713.220.4285 Fax
andrewskurthkenyon.com

June 29, 2017

NGL Energy Partners LP
6120 S. Yale, Suite 805
Tulsa, Oklahoma 74136

Re:    NGL Energy Partners LP and NGL Energy Finance Corp. Registration Statement on Form S-4.

Ladies and Gentlemen:

        We have acted as special counsel to NGL Energy Partners LP, a Delaware limited partnership (the " Partnership "), and NGL Energy Finance Corp., a Delaware corporation (" NGL Finance " and, together with the Partnership, the " Issuers "), in connection with the public offering of $500,000,000 aggregate principal amount of the Issuers' 6.125% Senior Notes due 2025 (the " Exchange Notes "), which are to be guaranteed pursuant to guarantees thereof (the " Guarantees ") by each of the subsidiaries of the Partnership that is listed in Exhibit A hereto (the " Guarantors "). The Issuers and the Guarantors are referred to collectively herein as the " Obligors ."

        The Exchange Notes are to be issued under the Indenture (as defined below) pursuant to an exchange offer (the " Exchange Offer ") by the Issuers, in exchange for a like principal amount of the Issuers' issued and outstanding 6.125% Senior Notes due 2025 (the " Original Notes "), as contemplated by the Registration Rights Agreement (as defined below).

        This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the " Securities Act ").

        In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:

        We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Obligors and such agreements, certificates of public officials, certificates of officers or other representatives of the Obligors and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In rendering the opinions set forth below, we have assumed and have not verified (i) the genuineness of the signatures on all documents that we have examined, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents supplied to us as originals, (iv) the conformity to the authentic

   

ANDREWS KURTH KENYON LLP

Austin    Beijing    Dallas    Dubai    Houston    London    New York    Research Triangle Park    Silicon Valley    The Woodlands    Washington, DC


NGL Energy Partners LP
June 29, 2017
Page 2

originals of all documents supplied to us as certified, photostatic or faxed copies, (v) the authenticity of the originals of such latter documents and (vi) that the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective and the Exchange Notes will be issued in compliance with applicable federal and state securities laws and in the manner described in the Registration Statement.

        We note that the Indenture (including the Guarantees set forth therein) and the Exchange Note include a provision stating that such instrument shall be governed by the laws of the State of New York. We also note that the Issuers are organized under the laws of the State of Delaware and, as indicated in Exhibit A hereto, certain of the Guarantors are organized under the laws of the State of Delaware or the State of Texas. We refer to such Guarantors as the " Covered Guarantors ." Furthermore, we refer to the Issuers and the Covered Guarantors collectively herein as the " Covered Obligors ," and we refer to the Guarantors (other than the Covered Guarantors) as the " Non-Covered Guarantors ."

        In conducting our examination of executed documents, we have assumed (i) the valid existence and good standing of each of the parties thereto (other than the Covered Obligors), (ii) that such parties (other than the Covered Obligors) had the power and authority (corporate, partnership, limited liability company or other) to enter into and to incur and perform all their obligations thereunder, (iii) the due authorization by all requisite action (corporate, partnership, limited liability company or other) by such parties (other than the Covered Obligors) and (iv) the due execution and delivery of such documents by such parties (other than the Covered Obligors), except to the extent such execution and delivery by the Non-Covered Guarantors are matters of the laws of the State of New York referred to below.

        With respect to the assumptions stated in the immediately preceding paragraph as to the Non-Covered Guarantors, we note that the registrants under the Registration Statement have obtained and filed as exhibits thereto, the following legal opinions pertaining to each of the Non-Covered Guarantors: (i) a legal opinion of Arkan Haile, Senior Corporate Counsel of NGL Energy Holdings LLC, the general partner of the Partnership (the "General Partner"), as to the valid existence under the laws of the State of Colorado of each of the Non-Covered Guarantors organized under such laws, the power under such laws of each of such Guarantors to create its obligations under its Guarantee, and the due authorization, execution and delivery under such laws by each of such Guarantors of the Indenture (which includes the Guarantee by such Gurantor), (ii) a legal opinion of Holland & Hart LLP, as to the valid existence under the laws of the State of Wyoming of the Non-Covered Guarantor organized under such laws, the power under such laws of each of such Guarantor to create its obligations under its Guarantee, and the due authorization, execution and delivery under such laws by such Guarantor of the Indenture (which includes the Guarantee by such Guarantor), (iii) a legal opinion of Holland & Hart LLP, as to the valid existence under the laws of the State of Utah of the Non-Covered Guarantor organized under such laws, the power under such laws of each of such Guarantor to create its obligations under its Guarantee, and the due authorization, execution and delivery under such laws by such Guarantor of the Indenture (which includes the Guarantee by such Guarantor), (iv) a legal opinion of Kurston P. McMurray, Senior Vice President, General Counsel & Corporate Secretary of the General Partner, as to the valid existence under the laws of the State of Oklahoma of each of the Non-Covered Guarantors organized under such laws, the power under such laws of each of such Guarantors to create its obligations under its Guarantee, and the due authorization, execution and delivery under such laws by each of such Guarantors of the Indenture (which includes the Guarantee by such Guarantor) and (v) a legal opinion of Norton Rose Fulbright, as to the valid existence under the laws of the Province of Alberta of the Non-Covered


NGL Energy Partners LP
June 29, 2017
Page 3

Guarantors organized under such laws, the power under such laws of each of such Guarantors to create its obligations under its Guarantee, and the due authorization, execution and delivery under such laws by such Guarantor of the Indenture (which includes the Guarantee by such Guarantor).

        The opinions expressed herein are limited solely to (i) the laws of the State of New York that are normally applicable to transactions of the type contemplated by the Indenture, the Exchange Notes and the Guarantees, (ii) the laws of the State of Texas, (iii) the General Corporation Law of the State of Delaware, (iv) the Delaware Revised Uniform Limited Partnership Act and (v) the Delaware Limited Liability Company Act. We express no opinion concerning any other laws.

        Based upon and subject to the foregoing and the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that when the Exchange Notes (in the form examined by us) have been duly executed by the Issuers, authenticated by the Trustee in accordance with the terms of the Indenture and issued and delivered upon consummation of the Exchange Offer against receipt of Original Notes surrendered in exchange therefor in accordance with the terms of the Exchange Offer, the Registration Rights Agreement and the Indenture, (i) the Exchange Notes will constitute valid and legally binding obligations of the Issuers and (ii) the Guarantees will constitute valid and legally binding obligations each of the Guarantors (including both the Covered Guarantors and the Non-Covered Guarantors).

        Our opinions expressed above are subject to applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfer or conveyance), reorganization, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), including, without limitation, (i) the possible unavailability of specific performance, injunctive relief or any other equitable remedy and (ii) concepts of materiality, reasonableness, good faith and fair dealing, and we express no opinion herein with respect to provisions relating to severability or separability.

        We hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration Statement. We also consent to the reference to our firm under the caption "Legal Matters" in the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in law.

    Very truly yours,

 

 

/s/ ANDREWS KURTH KENYON  LLP


Exhibit A

Guarantors

Name of Guarantor
  State or other
jurisdiction of
incorporation or
organization
NGL Energy Operating LLC   Delaware
NGL Crude Logistics, LLC   Delaware
NGL Propane, LLC   Delaware
NGL Liquids, LLC   Delaware
NGL Crude Transportation, LLC   Colorado
NGL Crude Cushing, LLC   Oklahoma
High Sierra Crude Oil & Marketing, LLC   Colorado
High Sierra Energy, LP   Delaware
NGL Crude Pipelines, LLC   Oklahoma
NGL Energy Logistics, LLC   Delaware
NGL Energy Holdings II, LLC   Delaware
NGL Crude Terminals, LLC   Delaware
NGL Crude Canada Holdings, LLC   Colorado
NGL Marine, LLC   Delaware
Osterman Propane, LLC   Delaware
NGL Water Solutions Bakken, LLC   Colorado
Hicksgas, LLC   Delaware
NGL-NE Real Estate, LLC   Delaware
NGL-MA Real Estate, LLC   Delaware
NGL-MA, LLC   Delaware
Centennial Energy, LLC   Colorado
Centennial Gas Liquids, ULC   Alberta
NGL Shipping and Trading, LLC   Delaware
NGL Supply Terminal Company, LLC   Delaware
NGL Supply Wholesale, LLC   Delaware
NGL Water Solutions, LLC   Colorado
AntiCline Disposal, LLC   Wyoming
NGL Water Solutions DJ, LLC   Colorado
NGL Water Solutions Eagle Ford, LLC   Delaware
NGL Water Solutions Permian, LLC   Colorado
TransMontaigne LLC   Delaware
TransMontaigne Product Services LLC   Delaware
TransMontaigne Services LLC   Delaware
Sawtooth NGL Caverns, LLC   Delaware
NGL Milan Investments LLC   Colorado
NGL Water Solutions Mid-Continent, LLC   Colorado
Grand Mesa Pipeline, LLC   Delaware
NGL Supply Terminal Solution Mining, LLC   Utah
NGL Energy Equipment LLC   Colorado
Choya Operating, LLC   Texas
OPR, LLC   Delaware
NGL Crude Canada ULC   Alberta

A-1




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Exhibit 5.2

LOGO

June 29, 2017

To:   Each of the Entities Listed in Exhibit A

c/o

 

NGL Energy Partners LP
6120 S. Yale, Suite 805
Tulsa, Oklahoma 74136

Ladies and Gentlemen:

        I am Senior Corporate Counsel of NGL Energy Holdings LLC, the general partner of NGL Energy Partners LP, a Delaware limited partnership (the " Partnership "), and in such capacity, I have acted as counsel to the subsidiaries of the Partnership listed in Exhibit A hereto (the " Colorado Guarantors "), in connection with the guarantees by the Colorado Guarantors (the " Colorado Guarantees ") of $500,000,000 aggregate principal amount of 6.125% Senior Notes due 2025 (the " Exchange Notes" ) that are being issued by the Partnership and NGL Energy Finance Corp., a Delaware corporation (" NGL Finance " and, together with the Partnership, the " Issuers "), in exchange for a like principal amount of the Issuers' issued and outstanding 6.125% Senior Notes due 2025 (the " Original Notes "), as contemplated by the Registration Rights Agreement (as defined below).

        The subsidiaries of the Partnership that have guaranteed the Original Notes are referred to collectively herein as the " Guarantors ." The Issuers and the Guarantors are referred to collectively herein as the " Obligors ."

        This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the " Securities Act ").

        In rendering the opinions set forth herein, I have examined and relied on originals or copies, certified or otherwise identified to my satisfaction, of the following:

        I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such records of the Colorado Guarantors and such agreements, certificates of public officials, certificates of officers or other representatives of the Colorado Guarantors and others, and such other documents, certificates and records as I have deemed necessary or appropriate as a basis for the opinions set forth herein. In rendering the opinions set forth below, I have assumed and have not verified (i) the genuineness of the signatures on all documents that I have examined, (ii) the legal


capacity of all natural persons, (iii) the authenticity of all documents supplied to me as originals, (iv) the conformity to the authentic originals of all documents supplied to me as certified, photostatic or faxed copies, (v) the authenticity of the originals of such latter documents and (vi) that the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective and the Exchange Notes will be issued in compliance with applicable federal and state securities laws and in the manner described in the Registration Statement. As to any facts material to the opinions and statements expressed herein that I did not independently establish or verify, I have relied, to the extent I deemed appropriate, upon oral or written statements and representations of officers and other representatives of the Colorado Guarantors and statements and certifications of public officials.

        I express no opinion as to the laws of any jurisdiction other than the State of Colorado.

        Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, I am of the opinion that:

        I hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC. The opinions expressed herein are as of the date hereof only and are based on laws, orders, contract terms and provisions, and facts as of such date, and I disclaim any obligation to update this opinion letter after such date or to advise you of changes of facts stated or assumed herein or any subsequent changes in applicable law.

    Very truly yours,

 

 

/s/ ARKAN HAILE

Arkan Haile,
Senior Corporate Counsel


EXHIBIT A

Subsidiary
  Type of Entity   Jurisdiction of
Organization

NGL Crude Transportation, LLC

  limited liability company   Colorado

Centennial Energy, LLC

 

limited liability company

 

Colorado

High Sierra Crude Oil & Marketing, LLC

 

limited liability company

 

Colorado

NGL Crude Canada Holdings, LLC

 

limited liability company

 

Colorado

NGL Milan Investments, LLC

 

limited liability company

 

Colorado

NGL Water Solutions, LLC

 

limited liability company

 

Colorado

NGL Water Solutions Bakken, LLC

 

limited liability company

 

Colorado

NGL Water Solutions DJ, LLC

 

limited liability company

 

Colorado

NGL Water Solutions Mid-Continent, LLC

 

limited liability company

 

Colorado

NGL Water Solutions Permian, LLC

 

limited liability company

 

Colorado

NGL Energy Equipment LLC

 

limited liability company

 

Colorado




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Exhibit 5.3

LOGO

June 29, 2017

NGL Crude Cushing, LLC
NGL Crude Pipelines, LLC
6120 S. Yale Ave., Suite 805
Tulsa, Oklahoma 74136

Re:    U.S. $500,000,000 of 6.125% Senior Notes due 2025.

Ladies and Gentlemen:

        I am the Senior Vice President, General Counsel & Corporate Secretary of NGL Energy Holdings LLC, the general partner of NGL Energy Partners LP, a Delaware limited partnership (the " Partnership "), and in such capacity, I have acted as counsel to NGL Crude Cushing, LLC, an Oklahoma limited liability company (" NGL Crude "), and NGL Crude Pipelines, LLC, an Oklahoma limited liability company (" NGL Pipelines " and, together with NGL Crude, the " Oklahoma Guarantors " and each an " Oklahoma Guarantor ") in connection with the guarantees by the Oklahoma Guarantors (the " Oklahoma Guarantees ") of $500,000,000 aggregate principal amount of 6.125% Senior Notes due 2025 (the " Exchange Notes ") that are being issued by NGL Energy Partners LP, a Delaware limited partnership (the " Partnership ") and NGL Energy Finance Corp., a Delaware corporation (" NGL Finance " and, together with the Partnership, the " Issuers "), in exchange for a like principal amount of the Issuers' issued and outstanding 6.125% Senior Notes due 2025.

        In rendering the opinions set forth herein, I have examined and relied on copies, certified or otherwise identified to my satisfaction, of the following:


        The documents listed as items (a)-(c) above are collectively referred to herein as the "Transaction Documents." The documents listed as items (d)-(i) above are collectively referred to herein as the "Authority Documents."

        I have assumed without independent investigation or inquiry the legal capacity of all natural persons executing documents, the genuineness of all signatures on original or certified copies, the authenticity of all original or certified copies and the conformity to original or certified documents of all copies submitted to us as conformed or reproduction copies. I have relied as to factual matters upon, and have assumed the accuracy of, the certificates and other statements or information of or from public officials and officers and representatives of the Oklahoma Guarantors.

        I have also assumed: (i) the due execution and delivery of the Indenture and the Exchange Notes by the parties thereto, including by the Oklahoma Guarantors, to the extent such execution and delivery are questions of laws of jurisdictions other than the State of Oklahoma; (ii) to the extent the Transaction Documents purport to be governed by the laws of a jurisdiction other than the State of Oklahoma, the Transaction Documents constitute valid, legal and binding obligations of the parties thereto, enforceable in accordance with their terms under the laws of such other jurisdiction; and (iii) the truthfulness and accuracy of the factual representations contained in the Transaction Documents and the Authority Documents.

        Based upon and subject to the foregoing and the limitations, qualifications, exceptions and assumptions set forth herein, I am of the opinion that:

        I am a member of the bar of the State of Oklahoma, and I express no opinion with regard to any matter that may be governed by the law of any jurisdiction other than the State of Oklahoma. In rendering the foregoing opinions, my examination of matters of law has been limited to the applicable laws of the State of Oklahoma as in effect on the date hereof. Without limiting the generality of and subject to the foregoing, in rendering the opinions herein I have considered only those laws, statutes, rules and regulations that, in my experience, are customarily applicable to transactions of the character contemplated by the Transaction Documents.

        This opinion letter is rendered as of the date first set forth above, and I express no opinion as to circumstances or events which may occur subsequent to such date. I disclaim any obligation to update this opinion letter after such date or to advise you of changes of facts stated or assumed herein or any subsequent changes in any law.


        I hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission.

    Sincerely,

 

 

/s/ KURSTON P. MCMURRAY




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Exhibit 5.4

Holland & Hart LLP
2515 Warren Ave., Suite 450
Cheyenne, WY 82001
Phone (307) 778-4200
Fax (307) 778-8175
June 29, 2017

NGL Energy Partners LP
6120 South Yale Avenue, Suite 805
Tulsa, OK 74136

Re: Securities and Exchange Commission Form S-4 Registration Statement

Ladies and Gentlemen:

        We have acted as special counsel in the State of Wyoming (the " State ") to AntiCline Disposal, LLC, a Wyoming limited liability company (the " Wyoming Guarantor "), a subsidiary of NGL Energy Partners LP, a Delaware limited partnership (the " Partnership "), for the purpose of rendering this opinion in connection with: (i) the offer by the Partnership and NGL Energy Finance Corp., a Delaware corporation (the " Co-Issuer " and, together with the Partnership, the " Issuers "), to issue up to $500,000,000 aggregate principal amount of registered 6.125% Senior Notes due 2025 (the " 2025 Exchange Notes "), in exchange for the same principal amount of the Issuer's registered 6.125% Senior Notes due 2025 (the " 2025 Old Notes "). The 2025 Old Notes were, and the 2025 Exchange Notes will be, issued pursuant to an indenture dated as of February 22, 2017 among the Issuers, the subsidiaries of the Partnership party thereto, including the Wyoming Guarantor, and U.S. Bank National Association, as trustee (the " Indenture "). The New Notes are being guaranteed by the Wyoming Guarantor as well as by other certain subsidiaries of the Partnership (together with the Wyoming Guarantor, the " Guarantors ") pursuant to guarantees included in the Indenture (the " Guarantees "). The opinions contained in this letter are rendered at the request of the Issuers in connection with that certain Registration Statement on Form S-4 (the " Registration Statement "), dated June 29, 2017, filed with the Securities and Exchange Commission (the " Commission ") under the Securities Act of 1933, as amended (the " Act ") on June 29, 2017 and in accordance with the requirements of Item 601(b)(5) of Regulations S-K under the Act.

        In rendering the opinions set forth herein, we have examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of the following:


        The documents described in items (a) and (b) above are collectively referred to herein as the " Transaction Documents ."

        We have not represented the Wyoming Guarantor in matters other than in connection with the preparation of this opinion letter. We have conducted only such inquiries and examinations of law as we deem necessary or appropriate for rendering this opinion. As to factual matters, we have relied upon and assumed the truthfulness and accuracy of (a) the representations and warranties of the Issuers and the Guarantors set forth in the Indenture and the Registration Statement, and (b) the certifications of the Secretary of the Wyoming Guarantor made in the Secretary's Certificate.

        We have assumed for purposes of this opinion: (a) the authenticity of all documents submitted to us as originals; (b) the conformity to authentic original documents of all documents submitted to us as certified, conformed, electronic, or photostatic copies; (c) the genuineness of all signatures; and (d) the due authorization, execution and delivery of the Transaction Documents by the persons authorized by each respective party thereto (other than the Wyoming Guarantor to the extent of the opinions expressed herein) to execute and deliver such documents on each party's behalf.

        Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:

        Our opinions contained in this letter are based on the laws of the State. We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction, including that of the State. This letter is limited to the matters expressed herein and no other opinions may be implied.

        Our opinions contained in this letter are rendered only as of the date hereof and we assume no obligation to update or supplement this opinion to reflect any facts or circumstances that arise or come to our attention after the date of this opinion letter, or any future changes in laws. This opinion letter is provided as a legal opinion only, effective as of the date of this letter, and not as a guaranty or warranty of the matters discussed herein or as representations of fact.

        These opinions are furnished for the benefit of the addressee. We hereby consent to the filing of this opinion letter as Exhibit 5.4 to the Registration Statement. In giving the opinions contained in this letter and our consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Holland & Hart LLP




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Exhibit 5.5

LOGO

  June 29, 2017

 

 

 

NGL Energy Partners LP
6120 South Yale Avenue, Suite 805
Tulsa, OK 74136

Re:    Form S-4 Registration Statement—6.125% Senior Notes due 2025

Ladies and Gentlemen:

        We have acted as special counsel in the State of Utah (the " State ") to NGL Supply Terminal Solution Mining, LLC, a Utah limited liability company (the " Utah Guarantor "), an affiliate of NGL Energy Partners LP, a Delaware limited partnership (the " Partnership "), for the purpose of rendering this opinion in connection with the offer by the Partnership and NGL Energy Finance Corp., a Delaware corporation (the " Co-Issuer " and, together with the Partnership, the " Issuers "), to issue up to $500,000,000 aggregate principal amount of registered 6.125% Senior Notes due 2025 (the " Exchange Notes "), in exchange for the same principal amount of the Issuer's unregistered 6.125% Senior Notes due 2025 (the " Old Notes "). The Exchange Notes will be, issued pursuant to an indenture dated as of October 26, 2016 among the Issuers, the subsidiaries of the Partnership party thereto, including the Utah Guarantor, and U.S. Bank National Association, as trustee, as supplemented by the First Supplemental Indenture thereto, dated February 22, 2017 (such indenture, as supplemented, referred to herein as the " Indenture "). The Exchange Notes are being guaranteed by the Utah Guarantor as well as by other certain subsidiaries of the Partnership (together with the Utah Guarantor, the " Guarantors ") pursuant to guarantees included in the Indenture (the " Guarantees "). The opinions contained in this letter are rendered at the request of the Issuers in connection with that certain Registration Statement on Form S-4 with regard to the Exchange Notes dated June 29, 2017, filed with the Securities and Exchange Commission (the " Commission ") under the Securities Act of 1933, as amended (the " Act ") on June 29, 2017 (the " Registration Statement ").

        In rendering the opinions set forth herein, we have examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of the following:

   

GRAPHIC


LOGO

  June 29, 2017

 

 

 

        The documents described in items (a) and (b) above are collectively referred to herein as the " Transaction Documents ."

        We have not represented the Utah Guarantor in matters other than in connection with the preparation of this opinion letter. We have conducted only such inquiries and examinations of law as we deem necessary or appropriate for rendering this opinion. As to factual matters, we have relied upon and assumed the truthfulness and accuracy of (a) the representations and warranties of the Issuers and the Guarantors set forth in the Indentures and the Registration Statement, and (b) the certifications of the Secretary of the Utah Guarantor made in the Secretary's Certificate.

        We have assumed for purposes of this opinion: (a) the authenticity of all documents submitted to us as originals; (b) the conformity to authentic original documents of all documents submitted to us as certified, conformed, electronic, or photostatic copies; (c) the genuineness of all signatures; and (d) the due authorization, execution and delivery of the Transaction Documents by the persons authorized by each respective party thereto (other than the Utah Guarantor to the extent of the opinions expressed herein) to execute and deliver such documents on each party's behalf.

2


LOGO

  June 29, 2017

 

 

 

        Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:

        Our opinions contained in this letter are based on the laws of the State. We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction, including that of the State. This letter is limited to the matters expressed herein and no other opinions may be implied.

        For purposes of the opinions set forth in paragraph 2 above, please note that we did not physically witness the execution and delivery of Indenture, and our opinion herein regarding the execution and delivery of the Indenture is based, in part, on our review of copies of executed signature pages for such Indenture provided to us (electronically or otherwise).

        Our opinions contained in this letter are rendered only as of the date hereof and we assume no obligation to update or supplement this opinion to reflect any facts or circumstances that arise or come to our attention after the date of this opinion letter, or any future changes in laws. This opinion letter is provided as a legal opinion only, effective as of the date of this letter, and not as a guaranty or warranty of the matters discussed herein or as representations of fact.

        These opinions are furnished for the benefit of the addressee. We hereby consent to the filing of this opinion letter as Exhibit 5.5 to the Registration Statement. In giving the opinions contained in this letter and our consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

  Very truly yours,

 

/s/ Holland & Hart LLP

3




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Exhibit 5.6

    LOGO
    Barristers  & Solicitors / Patent & Trade-mark Agents

 

 

Norton Rose Fulbright Canada LLP
June 29, 2017   400 3rd Avenue SW, Suite 3700
Calgary, Alberta T2P 4H2 CANADA

 

 

F: +1 403.264.5973
    nortonrosefulbright.com
To:   Centennial Gas Liquids ULC, and
NGL Crude Canada ULC
6120 South Yale, Suite 805
Tulsa, OK, USA 74136
   

Dear Ladies and Gentlemen:

Centennial Gas Liquids ULC
NGL Crude Canada ULC

        We have acted as special Alberta counsel to Centennial Gas Liquids ULC ( Centennial ) and NGL Crude Canada ULC ( NGL Crude ), each an Alberta unlimited liability corporation (the Alberta Guarantors ), in connection with the guarantee by the Alberta Guarantors of certain obligations of NGL Energy Partners LP (the Partnership ) and NGL Energy Finance Corp. (the Co-Issuer and together with the Partnership, the Issuers ), under their 6.125% Senior Notes due 2025 (the Old Notes ). Exchange notes are to be issued pursuant to an exchange offer (the Exchange Offer ) in exchange for a like principal amount of the Old Notes (the Exchange Notes ). The Old Notes are, and the Exchange Notes will be, governed by the indenture dated as of February 22, 2017 (the Indenture ), by and among, inter alios , the Partnership, the Co-Issuer, the subsidiaries of the Partnership party thereto, the Alberta Guarantors and U.S. Bank National Association, as trustee (the Trustee ).

A.    Jurisdiction

        Our opinions below are expressed only with respect to the laws of the Province of Alberta (the Jurisdiction ) and the laws of Canada applicable therein. Any reference to the laws of the Jurisdiction includes the laws of Canada that apply in the Jurisdiction.

        Our opinions are expressed with respect to the laws of the Jurisdiction in effect on the date of this opinion. We have no responsibility or obligation to: (i) update this opinion, (ii) take into account or inform the addressees, or any other person of any changes in law, facts or other developments subsequent to this date that do or may affect the opinions we express or (iii) advise the addressees or any other person of any other change in any matter addressed in this opinion. Nor do we have any responsibility or obligation to consider the applicability or correctness of this opinion to any person other than the addressees.

B.    Scope of Examination

        In connection with the opinions expressed in this letter we have considered such questions of law and examined originally executed, photo copies or facsimiles of such public and corporate records, certificates and other documents and conducted such other examinations as we have considered necessary for the purposes of the opinions expressed in this letter.


LOGO

        In expressing the opinions in this letter, we have examined an executed copy of the Indenture, and examined and relied upon:

C.    Assumptions and Reliances

        For purposes of the opinions expressed in this letter, we have assumed:

        In expressing our opinion set forth in paragraph 1 below, we have relied, with your permission, solely on the Certificates of Status.

D.    Opinions

        On the basis of the foregoing and subject to the qualifications and limitations expressed herein, we are of the opinion that:

2


LOGO

E.    Administrative Matters

        This opinion letter is rendered as of the date first set forth above, and we express no opinion as to circumstances or events which may occur subsequent to such date. We disclaim any obligation to update this opinion letter after such date or to advise you of changes of facts stated or assumed herein or any subsequent changes in any law.

        We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required by the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.

Yours very truly,

/s/ Norton Rose Fulbright Canada LLP

3




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Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We have issued our reports dated May 26, 2017 with respect to the consolidated financial statements and internal control over financial reporting of NGL Energy Partners LP included in the Annual Report on Form 10-K for the year ended March 31, 2017, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement, and to the use of our name as it appears under the caption “Experts.”

 

/s/ Grant Thornton LLP

 

 

 

Tulsa, Oklahoma

 

June 29, 2017

 

 




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Exhibit 25.1


SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



FORM T-1

STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)     o



U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)

31-0841368
I.R.S. Employer
Identification No.

800 Nicollet Mall
Minneapolis, Minnesota

(Address of principal executive offices)

 

55402
(Zip Code)

Israel Lugo
U.S. Bank National Association
13737 Noel Road, Suite 800
Dallas, Texas 75240
(972) 581-1623

(Name, address and telephone number of agent for service)

NGL ENERGY PARTNERS LP
NGL ENERGY FINANCE CORP.
(Issuer with respect to the Securities)

Delaware
(State or other jurisdiction of
incorporation or organization)
  27-3427920
80-0956287

(I.R.S. Employer
Identification No.)

6120 South Yale Avenue
Suite 805
Tulsa, Oklahoma

(Address of Principal
Executive Offices)

 

74136
(Zip Code)

6.125% Senior Secured Notes Due 2025
(Title of the Indenture Securities)

   



FORM T-1

Item 1.    GENERAL INFORMATION.     Furnish the following information as to the Trustee.

a)
Name and address of each examining or supervising authority to which it is subject.
b)
Whether it is authorized to exercise corporate trust powers.

Item 2.    AFFILIATIONS WITH OBLIGOR.      If the obligor is an affiliate of the Trustee, describe each such affiliation.

Items 3 - 15     Items 3 - 15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

Item 16.    LIST OF EXHIBITS:     List below all exhibits filed as a part of this statement of eligibility and qualification.

1.
A copy of the Articles of Association of the Trustee.*

2.
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

3.
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3.

4.
A copy of the existing bylaws of the Trustee.**

5.
A copy of each Indenture referred to in Item 4. Not applicable.

6.
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

7.
Report of Condition of the Trustee as of March 31, 2017 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

   


*
Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

**
Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.

2



SIGNATURE

        Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Dallas, State of Texas on the 23 rd  of June, 2017.

    By:   /s/ ISRAEL A. LUGO

Israel A. Lugo
Vice President

3



Exhibit 2

GRAPHIC


CERTIFICATE OF CORPORATE EXISTENCE

I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:

        1.     The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

        2.     "U.S. Bank National Association," Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.




 



 



IN TESTIMONY WHEREOF, today,
October 28, 2016, I have hereunto
subscribed my name and caused my seal
of office to be affixed to these presents at
the U.S. Department of the Treasury, in
the City of Washington, District of
Columbia.

GRAPHIC

 

GRAPHIC


Comptroller of the Currency

4



Exhibit 3

GRAPHIC


CERTIFICATION OF FIDUCIARY POWERS

I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:

        1.     The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

        2.     "U.S. Bank National Association," Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.




 



 



IN TESTIMONY WHEREOF, today,
October 28, 2016, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
U.S. Department of the Treasury, in the City
of Washington, District of Columbia.

GRAPHIC

 

GRAPHIC


Comptroller of the Currency

5



Exhibit 6

CONSENT

        In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

Dated: June 23, 2017        

 

 

By:

 

/s/ ISRAEL A. LUGO

Israel A. Lugo
Vice President

6



Exhibit 7

U.S. Bank National Association
Statement of Financial Condition
As of 3/31/2017
($000's)

 
  3/31/2017  

Assets

       

Cash and Balances Due From

  $ 20,286,216  

Depository Institutions

       

Securities

    109,425,081  

Federal Funds

    6,277  

Loans & Lease Financing Receivables

    271,757,654  

Fixed Assets

    4,607,606  

Intangible Assets

    12,967,640  

Other Assets

    23,934,632  

Total Assets

  $ 442,985,106  

Liabilities

   
 
 

Deposits

  $ 346,548,026  

Fed Funds

    1,082,176  

Treasury Demand Notes

    0  

Trading Liabilities

    1,077,223  

Other Borrowed Money

    30,907,144  

Acceptances

    0  

Subordinated Notes and Debentures

    3,800,000  

Other Liabilities

    12,674,854  

Total Liabilities

  $ 396,089,423  

Equity

   
 
 

Common and Preferred Stock

    18,200  

Surplus

    14,266,915  

Undivided Profits

    31,804,360  

Minority Interest in Subsidiaries

    806,208  

Total Equity Capital

  $ 46,895,683  

Total Liabilities and Equity Capital

 
$

442,985,106
 

7




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FORM T-1
SIGNATURE
Exhibit 2
CERTIFICATE OF CORPORATE EXISTENCE
Exhibit 3
CERTIFICATION OF FIDUCIARY POWERS
Exhibit 6
CONSENT
Exhibit 7
U.S. Bank National Association Statement of Financial Condition As of 3/31/2017 ($000's)

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Exhibit 99.1

         LETTER OF TRANSMITTAL

to Tender
Outstanding Unregistered 6.125% Senior Notes due 2025
of

NGL ENERGY PARTNERS LP
NGL ENERGY FINANCE CORP.

Pursuant to the Exchange Offer and Prospectus dated                , 2017

         THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON                                    , 20            (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS EXTENDED BY THE ISSUERS (AS DEFINED BELOW).

The Exchange Agent for the Exchange Offer is:
U.S. Bank National Association

By Registered or Certified Mail, Overnight Delivery or Hand Delivery:

U.S. Bank National Association
Corporate Trust Services
Attn: Specialized Finance Department
111 Fillmore Ave. E
St. Paul, Minnesota 55107

FACSIMILE TRANSMISSION: (651) 466-7372

CONFIRM BY TELEPHONE: (800) 934-6802

        If you wish to exchange currently outstanding unregistered 6.125% Senior Notes due 2025 ("old notes") for an equal aggregate principal amount at maturity of registered 6.125% Senior Notes due 2025 ("new notes") pursuant to the exchange offer, you must validly tender (and not withdraw) old notes to the Exchange Agent prior to the Expiration Date.

        The undersigned hereby acknowledges receipt of the prospectus, dated                , 2017 (the " Prospectus "), of NGL Energy Partners LP and NGL Energy Finance Corp. (collectively, the " Issuers "), and this letter of transmittal (the " Letter of Transmittal "), which together describe the Issuers' offer (the " Exchange Offer ") to exchange the old notes for a like principal amount of the new notes that have been registered under the Securities Act of 1933, as amended (the " Securities Act "). Capitalized terms used but not defined herein have the respective meanings given to them in the Prospectus.

        The Issuers reserve the right, at any time or from time to time, to extend the Exchange Offer at their discretion, in which event the term " Expiration Date " shall mean the latest date to which the Exchange Offer is extended. The Issuers shall notify the Exchange Agent and each registered holder of the old notes of any extension by oral or written notice prior to 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date.

        This Letter of Transmittal is to be used by holders of the old notes. Tender of old notes is to be made according to the Automated Tender Offer Program (" ATOP "), of the Depository Trust Company (" DTC "), pursuant to the procedures set forth in the Prospectus under the caption "Exchange Offer—Procedures for Tendering." DTC participants that are accepting the Exchange Offer must transmit their acceptance to DTC, which will verify the acceptance and execute a book-entry delivery to the Exchange.

1


        Agent's DTC account. DTC will then send a computer-generated message known as an "agent's message" to the Exchange Agent for its acceptance. For you to validly tender your old notes in the Exchange Offer, the Exchange Agent must receive, prior to the Expiration Date, an agent's message under the ATOP procedures that confirms that:

         BY USING THE ATOP PROCEDURES TO TENDER OLD NOTES, YOU WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT. HOWEVER, YOU WILL BE BOUND BY ITS TERMS, AND YOU WILL BE DEEMED TO HAVE MADE THE ACKNOWLEDGEMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS, JUST AS IF YOU HAD SIGNED IT.


PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.

Ladies and Gentlemen:

        (1)   By tendering old notes in the Exchange Offer, you acknowledge receipt of the Prospectus and this Letter of Transmittal.

        (2)   By tendering old notes in the Exchange Offer, you represent and warrant that you have full authority to tender the old notes described above and will, upon request, execute and deliver any additional documents deemed by the Issuers to be necessary or desirable to complete the tender of old notes.

        (3)   You understand that the tender of the old notes pursuant to all of the procedures set forth in the Prospectus will constitute an agreement between the undersigned and the Issuers as to the terms and conditions set forth in the Prospectus.

        (4)   By tendering old notes in the Exchange Offer, you acknowledge that the Exchange Offer is being made in reliance upon interpretations contained in no-action letters issued to third parties by the staff of the Securities and Exchange Commission (the " SEC "), including Exxon Capital Holdings Corp., SEC No-Action Letter (available May 13, 1988), Morgan Stanley & Co., Inc., SEC No-Action Letter (available June 5, 1991) and Shearman & Sterling, SEC No-Action Letter (available July 2, 1993), that the new notes issued in exchange for the old notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by holders thereof without compliance with the registration and prospectus delivery provisions of the Securities Act (other than a broker-dealer who purchased old notes exchanged for such new notes directly from the Issuers to resell pursuant to Rule 144A or any other available exemption under the Securities Act, and any such holder that is an "affiliate" of the Issuers within the meaning of Rule 405 under the Securities Act), provided that such new notes are acquired in the ordinary course of such holders' business and such holders are not participating in, and have no arrangement with any other person to participate in, the distribution of such new notes.

        (5)   By tendering old notes in the Exchange Offer, you hereby represent and warrant that:

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        You may, if you are unable to make all of the representations and warranties contained in Item 5 above and as otherwise permitted in the Registration Rights Agreement (as defined below), elect to have your old notes registered in the shelf registration statement described in the registration rights agreement, dated as of February 22, 2017 (the " Registration Rights Agreement "), by and among the Issuers, the initial guarantors party thereto and RBC Capital Markets, LLC and Deutsche Bank Securities, Inc. as representative of the Initial Purchasers (as defined therein). Such election may be made by notifying the Issuers in writing at , Attention: Robert W. Karlovich III. By making such election, you agree, as a holder of old notes participating in a shelf registration, to indemnify and hold harmless the Issuers, the guarantors, and their respective directors, each of the officers of the Issuers and the guarantors who signs such shelf registration statement, and each person who controls the Issuers or any of the guarantors, within the meaning of either the Securities Act or the Securities Exchange Act of 1934, as amended, and the respective officers, directors, partners, employees, representatives and agents of each such person, from and against any and all losses, claims, damages or liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in any shelf registration statement or prospectus, or in any supplement thereto or amendment thereof, or caused by the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; but only with respect to information relating to the undersigned furnished in writing by or on behalf of the undersigned expressly for use in a shelf registration statement, a prospectus or any amendments or supplements thereto. Any such indemnification shall be governed by the terms and subject to the conditions set forth in the Registration Rights Agreement, including, without limitation, the provisions regarding notice, retention of counsel, contribution and payment of expenses set forth therein. The above summary of the indemnification provisions of the Registration Rights Agreement is not intended to be exhaustive and is qualified in its entirety by the Registration Rights Agreement.

        (6)   If you are a broker-dealer that will receive new notes for your own account in exchange for old notes that were acquired as a result of market-making activities or other trading activities, you acknowledge, by tendering old notes in the Exchange Offer, that you will deliver a prospectus in connection with any resale of such new notes; however, by so acknowledging and by delivering a prospectus, you will not be deemed to admit that you are an "underwriter" within the meaning of the Securities Act.

        (7)   If you are a broker-dealer and old notes held for your own account were not acquired as a result of market-making or other trading activities, such old notes cannot be exchanged pursuant to the Exchange Offer.

        (8)   Any of your obligations hereunder shall be binding upon your successors, assigns, executors, administrators, trustees in bankruptcy and legal and personal representatives.

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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER

1. Book-Entry Confirmations

        Any confirmation of a book-entry transfer to the Exchange Agent's account at DTC of old notes tendered by book-entry transfer (a " Book-Entry Confirmation "), as well as an agent's message and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth herein prior to 5:00 p.m., New York City time, on the Expiration Date.

2. Partial Tenders

        Tenders of old notes will be accepted only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The entire principal amount of old notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise communicated to the Exchange Agent. If the entire principal amount of all old notes is not tendered, then old notes for the principal amount of old notes not tendered and new notes issued in exchange for any old notes accepted will be delivered to the holder via the facilities of DTC promptly after the old notes are accepted for exchange.

3. Validity of Tenders

        All questions as to the validity, form, eligibility (including time of receipt), acceptance and withdrawal of tendered old notes will be determined by the Issuers, in their sole discretion, which determination will be final and binding. The Issuers reserve the absolute right to reject any or all tenders not in proper form or the acceptance for exchange of which may, in the opinion of counsel for the Issuers, be unlawful. The Issuers also reserve the absolute right to waive any of the conditions of the Exchange Offer or any defect or irregularity in the tender of any old notes. The Issuers' interpretation of the terms and conditions of the Exchange Offer (including the instructions on this Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of old notes must be cured within such time as the Issuers shall determine. Although the Issuers intend to notify holders of defects or irregularities with respect to tenders of old notes, neither the Issuers, the Exchange Agent nor any other person shall be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give such notification. Tenders of old notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any old notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering holders, unless otherwise provided in this Letter of Transmittal, as soon as practicable following the Expiration Date.

4. Requests for Assistance or Additional Copies

        Requests for assistance or for additional copies of the Prospectus or this Letter of Transmittal may be directed to the Exchange Agent at the address or telephone number set forth on the cover page of this Letter of Transmittal. Holders may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offer.

5. Withdrawal

        Tenders may be withdrawn only pursuant to the limited withdrawal rights set forth in the Prospectus under the caption "Exchange Offer—Withdrawal of Tenders."

6. No Guarantee of Late Delivery

        There is no procedure for guarantee of late delivery in the Exchange Offer.

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PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER