UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
(Mark One)
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2003
OR
¨
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-16335
Magellan Midstream Partners, L.P.
(Exact name of registrant as specified in its charter)
Delaware | 73-1599053 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) | |
Magellan GP, LLC | ||
P.O. Box 22186, Tulsa, Oklahoma | 74121-2186 | |
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (918) 574-7000
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class |
Name of Each Exchange on Which Registered |
|
Common Units representing limited partnership interests |
New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2). x
The aggregate market value of the registrants voting and non-voting common units held by non-affiliates computed by reference to the price at which the common units were last sold as of June 30, 2003, was $595.7 million.
As of March 1, 2004, there were outstanding 23,130,541 common units and 4,259,771 subordinated units.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrants Proxy Statement being prepared for the solicitation of proxies in connection with the 2004 Annual Meeting of Limited Partners are incorporated by reference in Part III of this Form 10-K.
MAGELLAN MIDSTREAM PARTNERS, L.P.
FORM 10-K
PART I
ITEM 1. | Business |
(a) General Development of Business
We were formed as a limited partnership under the laws of the State of Delaware in August 2000. On September 1, 2003, our name changed from Williams Energy Partners L.P. (NYSE:WEG) to Magellan Midstream Partners, L.P. (NYSE:MMP). We were formed when The Williams Companies, Inc. (Williams) contributed certain entities, which included terminal and ammonia pipeline assets to us. The principal executive offices of Magellan GP, LLC, our general partner, are located at One Williams Center, Tulsa, Oklahoma 74172 (telephone (918) 574-7000).
A discussion of our acquisition of Magellan Pipeline Company, LLC (Magellan Pipeline) is included under the caption Introduction in Managements Discussion and Analysis of Financial Condition and Results of Operations. In addition, a brief description of all the acquisitions completed by the Partnership since our initial public offering can be found under the caption Acquisition History in Managements Discussion and Analysis of Financial Condition and Results of Operations.
During 2003, Williams agreed to sell their approximate 54.6% interest in us to Magellan Midstream Holdings, L.P. (MMH), formerly known as WEG Acquisitions, L.P., a Delaware limited partnership formed by Madison Dearborn Capital Partners IV, L.P. and Carlyle/Riverstone MLP Holdings, L.P. On June 17, 2003, Williams sale was consummated and MMH purchased all of the limited partner interests in us owned by Williams through its subsidiaries and all of the membership interests in our general partner. These limited partner interests consisted of 1,079,694 common units, 5,679,694 subordinated units and 7,830,924 class B common units. Through its purchase of all of the membership interests in our general partner, MMH also became the indirect owner of a 2% general partner interest in us and all of our incentive distribution rights, which entitle the holder to an increasing percentage of our cash distributions as we increase distributions to our common unitholders.
In connection with the sale of Williams interests in us, six of the seven directors resigned from our general partners board of directors and four directors affiliated with MMH were appointed to our general partners board. Mr. Don R. Wellendorf, our general partners Chief Executive Officer and President, is the Chairman of the Board and continued to serve in these capacities. Prior to December 31, 2003, our general partners board increased the size of the board to eight and appointed three directors that meet the independence and financial literacy requirements of the New York Stock Exchange (NYSE) and the Securities and Exchange Commission (SEC).
In November 2003, our common unitholders approved the conversion of each outstanding class B common unit into one common unit, and the resulting issuance of an aggregate of 7,830,924 common units upon the request by MMH, the holder of those units, for the conversion and cancellation of the 7,830,924 class B common units. On December 1, 2003, MMH requested the conversion of all of the class B common units and the units were then converted into common units. In late December 2003 and early January 2004, MMH sold 4,975,000 common units and we sold 200,000 common units in an underwritten public offering. On February 7, 2004, pursuant to Section 5.8(a) of our Second Amended and Restated Agreement of Limited Partnership, 1,419,923 of the 5,679,694 subordinated units held by MMH converted into common units on a one-for-one basis. As of the date of this annual report on Form 10-K, MMHs limited partner interests in us consist of 5,355,541 common units and 4,259,771 subordinated units, which represents an approximate 36.4% ownership interest in us, including MMHs 2% general partner interest.
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(b) Financial Information About Segments
See Part II, Item 8Financial Statements and Supplementary Data
(c) Narrative Description of Business
We are principally engaged in the storage, transportation and distribution of refined petroleum products and ammonia. Our asset portfolio currently consists of:
| a 6,700-mile petroleum products pipeline system, including 39 petroleum products terminals serving the mid-continent region of the United States. Of these terminals, we own 38 and have an access agreement to a third-party terminal; |
| five petroleum products terminal facilities located along the Gulf Coast and near the New York harbor. We refer to these facilities as our marine terminals; |
| 29 petroleum products terminals located principally in the southeastern United States, which we refer to as our inland terminals. Our inland terminals include 6 terminals acquired in January 2004. Also during January 2004, we acquired the remaining 21% ownership interests in 8 terminals in which we previously owned a 79% ownership interest. See Recent Developments in Managements Discussion and Analysis for further discussion of the acquisition of these terminals; and |
| an ammonia pipeline system, which extends approximately 1,100 miles from Texas and Oklahoma to Minnesota. |
Petroleum Products Transportation and Distribution
The United States petroleum products transportation and distribution system links oil refineries to end-users of gasoline and other petroleum products and is comprised of a network of pipelines, terminals, storage facilities, tankers, barges, rail cars and trucks. For transportation of petroleum products, pipelines are generally the lowest-cost alternative for intermediate and long-haul movements between different markets. Throughout the distribution system, terminals play a key role in moving products to the end-user market by providing storage, distribution, blending and other ancillary services. Petroleum products transported, stored and distributed through our petroleum products pipeline system and petroleum products terminals include:
| refined petroleum products, which are the output from refineries and are primarily used as fuels by consumers. Refined petroleum products include gasoline, diesel, jet fuel, kerosene and heating oil; |
| liquefied petroleum gases, or LPGs, which are produced as by-products of the crude oil refining process and in connection with natural gas production. LPGs include butane and propane; |
| blendstocks, which are blended with petroleum products to change or enhance their characteristics such as increasing a gasolines octane or oxygen content. Blendstocks include alkylates and oxygenates; |
| heavy oils and feedstocks, which are used as burner fuels or feedstocks for further processing by refineries and petrochemical facilities. Heavy oils and feedstocks include # 6 fuel oil and vacuum gas oil; and |
| crude oil and condensate, which are used as feedstocks by refineries. |
PETROLEUM PRODUCTS PIPELINE SYSTEM
Our petroleum products pipeline system covers an 11-state area, extending from Oklahoma through the Midwest to North Dakota, Minnesota and Illinois. Our pipeline system transports petroleum products and LPGs and includes a common carrier pipeline and 39 terminals that provide transportation and terminals services. The products transported on our pipeline system are largely transportation fuels, and in 2003 were comprised of 58%
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gasoline, 33% distillates (which includes diesel fuels and heating oil) and 9% LPGs and aviation fuel. Product originates on our pipeline system from direct connections to refineries and interconnections with other interstate pipelines for transportation and ultimate distribution to retail gasoline stations, truck stops, railroads, airports and other end-users. See Note 16Segment Disclosures in the accompanying consolidated financial statements.
Our petroleum products pipeline system is dependent on the ability of refiners and marketers to meet the demand for refined petroleum products and LPGs in the markets it serves through their shipments on our pipeline system. According to statistics provided by the Energy Information Administration, the demand for refined petroleum products in the market area served by our petroleum products pipeline system, known as Petroleum Administration for Defense District (PADD) II, is expected to grow at an average rate of approximately 1.7% per year over the next 10 years. The total production of refined petroleum products from refineries located in PADD II is currently insufficient to meet the demand for refined petroleum products in PADD II. The excess PADD II demand has been and is expected to be met largely by imports of refined petroleum products via pipelines from Gulf Coast refineries that are located in PADD III.
Our petroleum products pipeline system is well connected to Gulf Coast refineries through interconnections with the Explorer, Shell, CITGO and Seaway/ConocoPhillips pipelines. These connections to Gulf Coast refineries, together with our pipelines extensive network throughout PADD II and connections to PADD II refineries, should allow it to accommodate not only demand growth, but also major supply shifts that may occur.
Our petroleum products pipeline system has experienced increased shipments over each of the last three years, with total shipments increasing by 1.4% from 2001 to 2003. The volume increases have come through a combination of overall market demand growth, development projects on our system and from incentive agreements with shippers utilizing our system. The operating statistics below reflect our petroleum products pipeline systems operations for the periods indicated:
2001
|
2002
|
2003
|
||||
Shipments (thousands of barrels): |
||||||
Refined products |
||||||
Gasoline |
137,552 | 139,073 | 137,752 | |||
Distillates |
75,887 | 73,559 | 78,264 | |||
Aviation fuel |
14,752 | 14,081 | 13,691 | |||
LPGs |
7,901 | 7,910 | 7,922 | |||
|
|
|
||||
236,092 | 234,623 | 237,629 | ||||
|
|
|
||||
Capacity lease |
23,671 | 25,465 | 25,647 | |||
|
|
|
||||
Total shipments |
259,763 | 260,088 | 263,276 | |||
|
|
|
||||
Daily average (thousands of barrels) |
712 | 713 | 721 | |||
Barrel miles (billions) |
70.5 | 71.0 | 70.5 |
The maximum number of barrels that our petroleum products pipeline system can transport per day depends upon the operating balance achieved at a given time between various segments on our pipeline system. This balance is dependent upon the mix of petroleum products to be shipped and the demand levels at the various delivery points. We believe that we will be able to accommodate anticipated demand increases in the markets we serve through expansions or modifications of our petroleum products pipeline system, if necessary.
Operations
Our petroleum products pipeline system is the largest common carrier pipeline of refined petroleum products and LPGs in the United States in terms of pipeline miles and the fifth largest based on deliveries. Through direct refinery connections and interconnections with other interstate pipelines, our system can access approximately 41% of the refinery capacity in the continental United States. In general, we do not take title to the petroleum products we transport.
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Our petroleum products pipeline system generates approximately 81% of its revenue, excluding product sales revenue, through transportation tariffs on volumes shipped. These transportation tariffs vary depending upon where the product originates, where ultimate delivery occurs and any applicable discounts. All interstate transportation rates and discounts are in published tariffs filed with the Federal Energy Regulatory Commission (FERC). Included as a part of these tariffs are charges for terminalling and storage of products at our pipeline systems 39 terminals. Currently, the tariffs we charge to shippers for transportation of products generally do not vary according to the type of products transported. Published tariffs serve as contracts and shippers nominate the volume to be shipped up to a month in advance. In addition, we enter into supplemental agreements with shippers that commonly result in volume and/or term commitments by shippers in exchange for reduced tariff rates or capital expansion commitments on our part. These agreements have terms ranging from one to ten years. Approximately 53% of the shipments in 2003 were subject to these supplemental agreements. While many of these agreements do not represent guaranteed volumes, they do reflect a significant level of shipper commitment to our petroleum products pipeline system.
Our petroleum products pipeline system generates the remaining 19% of its revenues, excluding product sales revenues, from leasing pipeline and storage tank capacity to shippers and from providing product and other services such as ethanol unloading and loading, additive injection, laboratory testing and data services to shippers. Product services such as ethanol unloading and loading, additive injection, custom blending and laboratory testing are performed under a mix of as needed monthly and long-term agreements. In addition, we began operating the Rio Grande pipeline system in 2003 and on January 1, 2004 began serving as a subcontractor to an affiliate of Williams for the interim operations of Longhorn Partners Pipeline, L.P. until its anticipated start-up in the second quarter of 2004. We are receiving a monthly fee for both of these services.
Product sales revenues result from the sale of products that are produced from fractionating transmix and from our petroleum products management operation. We take title to the products related to these activities. While the revenues generated from these activities were over $108.0 million in 2003, margins from these sales were only $9.7 million. Revenues and margins from these activities increased in 2003 over 2002 by $38.5 million and $4.5 million, respectively, primarily as a result of our purchase of the petroleum products management operation from Williams in July 2003.
Facilities
Our petroleum products pipeline system consists of a 6,700-mile pipeline and includes 22.5 million barrels of aggregate usable storage capacity at terminals and various pump stations. The terminals deliver petroleum products primarily into tank trucks, although two terminals can load into tank rail cars.
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The following table contains information regarding our owned terminal facilities:
Delivery Points |
Total Usable Storage Capacity |
Delivery Points |
Total Usable Storage Capacity |
|||
(barrels in thousands) | (barrels in thousands) | |||||
Arkansas |
Minnesota (cont.) | |||||
Ft. Smith |
178 | Minneapolis | 1,826 | |||
Illinois |
Rochester | 135 | ||||
Amboy |
186 | Missouri | ||||
Chicago |
542 | Carthage | 117 | |||
Heyworth |
368 | Columbia | 284 | |||
Menard County |
217 | Palmyra | 171 | |||
Iowa |
Springfield | 286 | ||||
Des Moines |
1,965 | Nebraska | ||||
Dubuque |
95 | Capehart | 100 | |||
Ft. Dodge |
128 | Doniphan | 500 | |||
Iowa City |
656 | Lincoln | 137 | |||
Mason City |
607 | Omaha | 940 | |||
Milford |
179 | North Dakota | ||||
Sioux City |
559 | Fargo | 589 | |||
Waterloo |
353 | Grand Forks | 327 | |||
Kansas |
Oklahoma | |||||
Kansas City |
1,601 | Enid | 290 | |||
Olathe |
202 | Oklahoma City | 290 | |||
St. Joseph |
78 | Tulsa | 1,879 | |||
Topeka |
142 | South Dakota | ||||
Minnesota |
Sioux Falls | 623 | ||||
Alexandria |
611 | Watertown | 209 | |||
Mankato |
416 | Wisconsin | ||||
Marshall |
182 | Wausau | 150 | |||
Pump Stations | 4,366 | |||||
|
||||||
Total | 22,484 | |||||
|
In addition, we have an agreement with ConocoPhillips, which provides us the right to use their terminal facility at Wichita, Kansas.
Petroleum Products Supply
Petroleum products originate from both refining and pipeline interconnection points along our pipeline system. In 2003, 55% of the petroleum products
transported on our petroleum products pipeline system originated from 10 direct refinery connections and 45% originated from 12 interconnections with other pipelines. As set forth in the table below, our system is directly connected to, and receives
Major OriginsRefineries (Listed Alphabetically)
Company |
Refinery Location
|
|
ConocoPhillips |
Ponca City, OK | |
Farmland Industries, Inc |
Coffeyville, KS | |
Flint Hills Resources (Koch) |
Pine Bend, MN | |
Frontier Oil Corporation |
El Dorado, KS | |
Gary Williams Energy Corp |
Wynnewood, OK | |
Marathon Ashland Petroleum Company |
St. Paul, MN | |
Murphy Oil USA, Inc |
Superior, WI | |
Sinclair Oil Corp |
Tulsa, OK | |
Sunoco, Inc |
Tulsa, OK | |
Valero Energy Corp |
Ardmore, OK |
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The most significant of our pipeline connections is to Explorer Pipeline in Glenpool, Oklahoma, which transports product from the large refining complexes located on the Texas and Louisiana Gulf Coast. Product from Explorer can be transferred into our pipeline system for delivery into the mid-continent and northern-tier states. Our pipeline system is also connected to all Chicago area refineries through the West Shore Pipe Line.
Major OriginsPipeline Connections (Listed Alphabetically)
Pipeline |
Connection Location
|
Source of Product
|
||
BP |
Manhattan, IL | Whiting, IN refinery | ||
Buckeye |
Mazon, IL | East Chicago, IL storage | ||
Cenex |
Fargo, ND | Laurel, MT refinery | ||
CITGO Pipeline |
Drumright, OK | Various Gulf Coast refineries | ||
ConocoPhillips |
Kansas City, KS |
Various Gulf Coast refineries
(via Seaway/Standish Pipeline); Borger, TX refinery |
||
Explorer Pipeline |
Glenpool, OK; Mt. Vernon, MO | Various Gulf Coast refineries | ||
Kaneb Pipeline |
El Dorado, KS;
Minneapolis, MN |
Various OK & KS refineries;
Mandan, ND refinery |
||
Kinder Morgan |
Plattsburg, MO; Des Moines, IA;
Wayne, IL |
Bushton, KS storage and Chicago
area refineries |
||
Mid-America Pipeline (Enterprise) |
El Dorado, KS | Conway, KS storage | ||
Orion Pipeline (Equilon) |
Duncan, OK | Various Gulf Coast refineries | ||
Total (Valero) |
Wynnewood, OK | Ardmore, OK refinery | ||
West Shore Pipe Line |
East Chicago, IL | Various Chicago, IL area refineries |
Customers and Contracts
We ship petroleum products for several different types of customers, including independent and integrated oil companies, wholesalers, retailers, railroads, airlines and regional farm cooperatives. End markets for these deliveries are primarily retail gasoline stations, truck stops, farm cooperatives, railroad fueling depots and military and commercial jet fuel users. Propane shippers include wholesalers and retailers who, in turn, sell to commercial, industrial, agricultural and residential heating customers, as well as utilities who use propane as a fuel source.
For the year ended December 31, 2003, our petroleum products pipeline system had approximately 50 transportation customers. The top 10 shippers included several independent refining companies, integrated oil companies and one farm cooperative, and revenues attributable to these top 10 shippers for the year ended December 31, 2003, represented 49% of total revenues for our petroleum products pipeline system and 64% of revenues excluding product sales.
Markets and Competition
In certain markets, barge, truck or rail provide an alternative source for transporting refined products; however, pipelines are generally the lowest-cost alternative for petroleum product movements between different markets. As a result, our pipeline systems most significant competitors are other pipelines that serve the same markets.
Competition with other pipeline systems is based primarily on transportation charges, quality of customer service, proximity to end-users and longstanding customer relationships. However, given the different supply sources on each pipeline, pricing at either the origin or terminal point on a pipeline may outweigh transportation costs when customers choose which line to use.
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Another form of competition for all pipelines is the use of exchange agreements among shippers. Under these arrangements, a shipper will agree to supply a market near its refinery or terminal in exchange for receiving supply from another refinery or terminal in a more distant market. These agreements allow the two parties to reduce the volumes transported and the average transportation rate paid to us. We have been able to compete with these alternatives through price incentives and through long-term commercial arrangements with potential exchange partners. Nevertheless, a significant amount of exchange activity has occurred historically and is likely to continue.
PETROLEUM PRODUCTS TERMINALS
Within our petroleum products terminals network, we operate two types of terminals: marine terminals and inland terminals. Our marine terminal facilities are located in close proximity to refineries and are large storage and distribution facilities that handle refined petroleum products, blendstocks, heavy oils, feedstocks, crude oil and condensate. Our inland terminals are primarily located in the southeastern United States along third-party pipelines such as Colonial, Explorer, Plantation and TEPPCO. Our facilities receive products from pipelines and distribute them to third parties at the terminals, which in turn deliver them to end-users such as retail outlets. Because these terminals are unregulated, the marketplace determines the prices we can charge for our services.
In 2003, Williams and its affiliates significantly reduced their storage and throughput volumes at our petroleum products terminals. As a result, affiliate revenues with Williams and its affiliates accounted for only 7% of petroleum products terminals 2003 revenues as compared to 21% in 2002. Please read Note 11 Related Party Transactions in the accompanying consolidated financial statements.
Marine Terminal Facilities
The Gulf Coast region is a major hub for petroleum refining, representing approximately 43% of total U.S. daily refining capacity and 67% of U.S. refining capacity expansion from 1990 to 2002. The growth in Gulf Coast refining capacity has resulted in part from consolidation in the petroleum industry to take advantage of economies of scale from operating larger, concentrated refineries. We expect this trend to continue in order to meet growing domestic and international demand. From 1990 to 2002, the amount of petroleum products exported from the Gulf Coast region increased by approximately 18%, or 195 million barrels. The growth in refining capacity and increased product flow attributable to the Gulf Coast region has created a need for additional transportation, storage and distribution facilities. In the future, competition resulting from the consolidation trend, combined with continued environmental pressures, continuation of imports, governmental regulations and market conditions, could result in the closing of smaller, less economical inland refiners, creating even greater demand for petroleum products refined in the Gulf Coast region.
We own and operate five marine terminal facilities, including four marine terminal facilities located along the Gulf Coast and one terminal facility located in Connecticut near the New York harbor. Our marine terminals are large storage and distribution facilities, with an aggregate storage capacity of approximately 16.6 million barrels, that provide inventory management, storage and distribution services for refiners and other large end-users of petroleum products.
Our marine terminal facilities primarily receive petroleum products by ship and barge, short-haul pipeline connections from neighboring refineries and common carrier pipelines. We distribute petroleum products from our marine terminals by all of those means as well as by truck and railcar. Once the product has reached our marine terminal facilities, we store the product for a period of time ranging from a few days to several months. Products that we store include petroleum products, blendstocks, heavy oils and feedstocks.
In addition to providing storage and distribution services, our marine terminal facilities provide ancillary services including heating, blending and mixing of stored products and injection services. Many heavy oils
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require heating to keep them in a liquid state. Further, in order to meet government specifications, products often must be combined with other products through the blending and mixing process. Blending is the combining of products from different storage tanks. Once the products are blended together, the mixing process circulates the blended product through mixing lines and nozzles to further combine the products. Injection is the process of injecting refined petroleum products with additives and dyes to comply with governmental regulations and to meet our customers marketing initiatives.
Our marine terminals generate fees primarily through providing long-term or spot demand storage services and inventory management for a variety of customers. In general, we do not take title to the products that are stored in or distributed from our facilities. Refiners and chemical companies will typically use our marine terminal facilities because their facilities are inadequate, either because of size constraints or the specialized handling requirements of the stored product. We also provide storage services and inventory management to various industrial end-users, marketers and traders that require access to large storage capacity.
The following table outlines our marine terminal facilities usable storage capacities, primary products handled and the connections to and from these terminals:
Facility |
Usable
Capacity
|
Primary Products Handled |
Connections |
|||
Connecticut |
||||||
New Haven |
3,556 | Refined petroleum products, ethanol, feedstocks and asphalt | Pipeline, barge, ship and truck | |||
Louisiana |
||||||
Gibson |
56 | Crude oil and condensate | Pipeline, barge and truck | |||
Marrero |
1,598 | Heavy oils and feedstocks | Barge, ship, rail and truck | |||
Texas |
||||||
Corpus Christi |
2,594 | Blendstocks, heavy oils and feedstocks | Pipeline, barge, ship and truck | |||
Galena Park |
8,788 | Refined petroleum products, blendstocks, heavy oils and feedstocks | Pipeline, barge, ship, rail and truck | |||
|
||||||
Total storage capacity |
16,592 | |||||
|
Customers and Contracts
We have long-standing relationships with oil refiners, suppliers and traders at our facilities, and most of our customers have consistently renewed their short-term contracts. During 2003, approximately 93% of our marine terminal capacity was utilized. As of December 31, 2003, approximately 59% of our usable storage capacity is under long-term contracts with remaining terms in excess of one year or that renew on an annual basis. Our long-term contract with Williams Energy Marketing & Trading, LLC (WEM&T), which represented approximately 19% of revenues at our marine terminal facilities for the year ended December 31, 2002, was terminated during the first quarter of 2003. We received $3.0 million from WEM&T to cancel this contract and recognized that amount as revenue during the first quarter of 2003. As a result, WEM&T accounted for 8% of our total marine revenues for 2003. However, excluding this settlement payment from revenues would have resulted in WEM&T accounting for only 4% of our total marine revenues for 2003. For a further discussion of revenues from major customers, refer to Note 9 Major Customers and Concentration of Risk in the accompanying consolidated financial statements. Also, please read Note 11 Related Party Transactions in the accompanying consolidated financial statements for additional information regarding affiliate revenues.
Markets and Competition
We believe that the strong demand for our marine terminal facilities from our refining and chemical customers, resulting from our cost-effective distribution services and key transportation links will continue. We
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experience the greatest demand at our marine terminal facilities in a contango market. A contango market condition exists when customers expect prices for petroleum products to be higher in the future. Under those conditions, customers tend to store more product to take advantage of the favorable pricing conditions expected in the future. When the opposite market condition known as backwardation exists, some companies choose not to store product or are less willing to enter into long-term storage contracts. The additional heating and blending services that we provide at our marine terminals attract additional demand for our storage services and result in increased revenue opportunities.
Several major and integrated oil companies have their own proprietary storage terminals along the Gulf Coast that are currently being used in their refining operations. If these companies choose to shut down their refining operations and elect to store and distribute refined petroleum products through their proprietary terminals, we would experience increased competition for the services that we provide. In addition, several companies have facilities in the Gulf Coast region and offer competing storage and distribution services.
Inland Terminals
We own and operate a network of 29 refined petroleum products terminals located primarily in the southeastern United States. We acquired 6 of these terminals in January 2004 and also acquired the remaining 21% ownership interest in 8 terminals in which we previously had a 79% ownership interest. As a result, we now wholly own 26 of the 29 terminals in our portfolio. Our terminals have a combined storage capacity of 5.4 million barrels. Our customers utilize these facilities to take delivery of refined petroleum products transported on major common carrier interstate pipelines. The majority of our inland terminals connect to the Colonial, Plantation, TEPPCO or Explorer pipelines and some facilities have multiple pipeline connections. In addition, our Dallas terminal connects to Dallas Love Field airport via a 6-inch pipeline we purchased in April 2001. During 2003, gasoline represented approximately 56% of the product volume distributed through our inland terminals, with the remaining 44% consisting of distillates.
Our inland terminal facilities typically consist of multiple storage tanks that are connected to a third-party pipeline system. We load and unload products through an automated system that allows products to move directly from the common carrier pipeline to our storage tanks and directly from our storage tanks to a truck or rail car loading rack.
We are an independent provider of storage and distribution services. Because we do not own the products moving through our terminals, we are not exposed to the risks of product ownership. We operate our inland terminals as distribution terminals and we primarily serve the retail, industrial and commercial sales markets. We provide inventory and supply management, distribution and other services such as injection of gasoline additives at our inland terminals.
We generate revenues by charging our customers a fee based on the amount of product that we deliver through our inland terminals. We charge these fees when we deliver the product to our customers and load it into a truck or rail car. In addition to throughput fees, we generate revenues by charging our customers a fee for injecting additives into gasoline, diesel and jet fuel, and for filtering jet fuel. Our inland terminals are equipped with automated loading facilities that are available 24 hours a day.
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In January 2004, we increased the number of terminals we wholly own from 12 to 26. Additionally, we have ownership interests in 3 inland terminals that range from 50% to 60%. The following table sets forth our inland terminal locations, percentage ownership, usable storage capacities and methods of supply:
Facility |
Percentage
Ownership |
Total
Usable Capacity (Thousand Barrels) |
Connections |
|||||
Alabama |
||||||||
Birmingham |
100 | 95 | * | Colonial and Plantation Pipelines | ||||
Montgomery |
100 | 94 | Plantation Pipeline | |||||
Arkansas |
||||||||
North Little Rock |
100 | 167 | TEPPCO Pipeline | |||||
South Little Rock |
100 | 224 | TEPPCO Pipeline | |||||
Georgia |
||||||||
Albany |
100 | 119 | ** | Colonial Pipeline | ||||
Doraville |
100 | 267 | Colonial and Plantation Pipelines | |||||
Doraville |
100 | 315 | * | Colonial and Plantation Pipelines | ||||
Macon |
100 | 130 | * | Colonial and Plantation Pipelines | ||||
Missouri |
||||||||
St. Charles |
100 | 201 | Explorer and ConocoPhillips Pipelines | |||||
North Carolina |
||||||||
Charlotte |
100 | 284 | Colonial Pipeline | |||||
Charlotte |
100 | 142 | ** | Colonial Pipeline | ||||
Greensboro |
60 | 228 | Colonial Pipeline | |||||
Greensboro |
100 | 228 | ** | Colonial and Plantation Pipelines | ||||
Selma |
100 | 289 | ** | Colonial Pipeline | ||||
South Carolina |
||||||||
North Augusta |
100 | 150 | ** | Colonial Pipeline | ||||
North Augusta |
100 | 116 | Colonial Pipeline | |||||
Spartanburg |
100 | 110 | Colonial Pipeline | |||||
Spartanburg |
100 | 152 | * | Colonial Pipeline | ||||
Tennessee |
||||||||
Chattanooga |
100 | 132 | Colonial Pipeline | |||||
Chattanooga |
100 | 212 | * | Colonial and Plantation Pipelines | ||||
Knoxville |
100 | 106 | Colonial and Plantation Pipelines | |||||
Knoxville |
100 | 183 | * | Colonial and Plantation Pipelines | ||||
Nashville |
50 | 226 | Colonial Pipeline and barge | |||||
Nashville |
100 | 147 | Colonial Pipeline | |||||
Nashville |
100 | 123 | ** | Colonial Pipeline | ||||
Texas |
||||||||
Dallas |
100 | 387 | Explorer, Magtex and Dallas Love Field | |||||
Pipelines | ||||||||
Southlake |
50 | 246 | Explorer, Koch and Valero Pipelines | |||||
Virginia |
||||||||
Montvale |
100 | 159 | ** | Colonial Pipeline | ||||
Richmond |
100 | 157 | ** | Colonial Pipeline | ||||
|
||||||||
Total |
5,389 | |||||||
|
* | We acquired sole ownership in these 6 of terminals in January 2004 from Murphy Oil USA Inc. and Colonial Pipeline Company. |
** | We previously owned a 79 percent interest in these 8 of terminals and purchased the remaining interest from Murphy Oil USA, Inc. in January 2004. |
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Customers and Contracts
When we acquire terminals, we generally enter into long-term throughput contracts with the sellers under which they agree to continue to use the facilities. In addition to these agreements, we enter into separate contracts with new customers that typically last for one year with a continuing one-year renewal provision. Most of these contracts contain a minimum throughput provision that obligates the customer to move a minimum amount of product through our terminals or pay for terminal capacity reserved but not used. Our customers include:
| retailers that sell gasoline and other petroleum products through proprietary retail networks; |
| wholesalers that sell petroleum products to retailers as well as to large commercial and industrial end-users; |
| exchange transaction customers, where we act as an intermediary so that the parties to the transaction are able to exchange petroleum products; and |
| traders that arbitrage, trade and market products stored in our terminals. |
Due to the change in our relationship with Williams and the sales of its Memphis, Tennessee refinery and travel center operations, Williams and its affiliates accounted for only 3% of our 2003 inland terminal revenues as compared to 25% in 2002. See Note 11 Related Party Transactions in the accompanying consolidated financial statements.
Markets and Competition
We compete with other independent terminal operators as well as integrated oil companies on the basis of terminal location and versatility, services provided and price. Our competition from independent operators primarily comes from distribution companies with marketing and trading arms, independent terminal operators and refining and marketing companies.
AMMONIA PIPELINE SYSTEM
We own a 1,100-mile ammonia pipeline system. Our pipeline system transports ammonia from production facilities in Texas and Oklahoma to terminals in the Midwest for ultimate distribution to end-users in Iowa, Kansas, Minnesota, Missouri, Nebraska, Oklahoma and South Dakota. The ammonia we transport is primarily used as a nitrogen fertilizer. Nitrogen is an essential nutrient for plant growth and is the single most important element for maintenance of high crop yields for all grains. Unlike other primary nutrients, however, nitrogen must be applied each year because virtually all of its nutritional value is consumed during the growing season. Ammonia is the most cost-effective source of nitrogen and the simplest nitrogen fertilizer. It is also the primary feedstock for the production of upgraded nitrogen fertilizers and chemicals.
Ammonia is produced by reacting natural gas with air at high temperatures and pressures in the presence of catalysts. Because natural gas is the primary feedstock for the production of ammonia, ammonia is typically produced near abundant sources of natural gas. Natural gas prices exhibited strong volatility in late 2002 and early 2003, increasing to unprecedented high levels. This caused the shippers to substantially curtail production at their facilities and shipments on our pipeline system during early 2003. Although natural gas prices remain above historical levels, they dropped below these unprecedented high levels during the latter part of the first quarter of 2003 and our shippers resumed shipments at close to historical levels.
Operations
We are a common carrier transportation pipeline and terminals company. We earn revenue from transportation tariffs for the use of our pipeline capacity and throughput fees at our six ammonia terminals. We do not produce or trade ammonia, and we do not take title to the ammonia we transport.
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We generate approximately 93% of our revenue through transportation tariffs. These tariffs are postage stamp tariffs, which means that each shipper pays a defined rate per ton of ammonia shipped regardless of the distance that ton of ammonia travels on our pipeline. In addition to transportation tariffs, we also earn revenue by charging our customers for services at the six terminals we own, including unloading ammonia from our customers trucks to inject it into our pipeline for shipment and removing ammonia from our pipeline to load it into our customers trucks.
Beginning in February 2003, a third-party pipeline company began providing the operating and general and administrative services for our ammonia pipeline system under an operating agreement with us.
Facilities
Our ammonia pipeline was the worlds first common carrier pipeline for ammonia. The main trunk line was completed in 1968. Today, it represents one of two ammonia pipelines operating in the United States and has a maximum annual delivery capacity of approximately 900,000 tons. Our ammonia pipeline system originates at production facilities in Borger, Texas, Verdigris, Oklahoma and Enid, Oklahoma and terminates in Mankato, Minnesota.
We transport ammonia to 13 delivery points along our ammonia pipeline system, including 6 facilities which we own. The facilities at these points provide our customers with the ability to deliver ammonia to distributors who sell the ammonia to farmers and to store ammonia for future use. These facilities also provide our customers with the ability to remove ammonia from our pipeline for distribution to upgrade facilities that produce complex nitrogen compounds such as urea, ammonium nitrate, ammonium phosphate and ammonium sulfate.
Customers and Contracts
We ship ammonia for three customers. Each of these customers has an ammonia production facility as well as related storage and distribution facilities connected to our ammonia pipeline. The transportation contracts with our customers extend through June 2005. Our customers are obligated to ship an aggregate minimum of 450,000 tons per year but can commit to a higher annual volume to receive a lower tariff rate (see Farmland/Koch discussion below). Our customers, or their predecessors, have been shipping ammonia through our pipeline for an average of more than 20 years.
Each transportation contract contains a ship or pay mechanism whereby each customer must ship a specific minimum tonnage per year and an aggregate minimum tonnage over the life of the contract. On July 1 of each contract year, each of our customers nominates a tonnage that it expects to ship during the upcoming year. This annual commitment may be equal to or greater than the contractual minimum tonnage. Our customers aggregate annual commitments for the period July 1, 2003 through June 30, 2004 are 550,000 tons. If a customer fails to ship its annual commitment, that customer must pay for the pipeline capacity it did not use (see Farmland/Koch discussion below). We allow our customers to bank any ammonia shipped in excess of their annual commitments. If a customer has previously shipped an amount in excess of its annual commitment, the shipper may offset subsequent annual shipment shortfalls against the excess tonnage in its bank. There are approximately 185,000 tons in this combined bank that may be used to offset future ship or pay obligations. We have the right to adjust our tariff schedule on an annual basis pursuant to a formula contained in the contracts. Any annual adjustment is limited to a maximum increase or decrease of 5% measured against the rate previously in effect.
Farmland/Koch. On May 31, 2002, Farmland Industries, Inc. (Farmland) and several of its subsidiaries filed for Chapter 11 bankruptcy protection. In December 2002, Farmland, the largest customer on the ammonia pipeline system, announced its intent to sell its ammonia production facility connected to our pipeline to Koch Nitrogen Company (Koch) and elected to exercise its rights under our ammonia pipeline agreement to terminate its shipment obligation by submitting 12-month written notice to us. Farmlands notification was to be
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effective December 23, 2002. Farmland was expected to incur a deficiency of approximately $2.0 million to $2.5 million under its shipment obligation for the contract year beginning July 1, 2002 and ending June 30, 2003. On February 18, 2003, we entered into a settlement agreement with Farmland to resolve the deficiency and provide the basis for assignment of its shipment obligation to the ultimate purchaser of its ammonia assets pursuant to bankruptcy procedures. Under the settlement agreement, Farmland paid us $0.8 million for the deficiency it would have incurred under its shipment obligation for the contract year ending June 30, 2003. On May 19, 2003, Koch Nitrogen Company purchased, with approval from the bankruptcy court, selected U.S. fertilizer assets from Farmland including the Enid production facility and other facilities along our pipeline system. As part of this transaction, Farmland withdrew its termination notice and assigned its shipment obligation with the revised requirements of 200,000 tons annually versus the previous requirement of 450,000 tons annually per the settlement agreement. The revised shipment obligation of Koch has reduced the aggregate minimum shipment obligations on the pipeline system from 700,000 tons annually to 450,000 tons annually.
Markets and Competition
Demand for nitrogen fertilizer has typically followed a combination of weather patterns and growth in population, acres planted and fertilizer application rates. Because natural gas is the primary feedstock for the production of ammonia, the profitability of our customers is impacted by high natural gas prices. To the extent our customers are unable to pass on higher costs to their customers, they may reduce shipments through our ammonia pipeline system.
We compete primarily with ammonia shipped by rail carriers, but we believe we have a distinct advantage over rail carriers because ammonia is a gas under normal atmospheric conditions and must be placed under pressure or cooled to -33 degrees Celsius to be shipped or stored. Because the transportation and storage of ammonia requires specialized handling, we believe that pipeline transportation is the safest and most cost-effective method for transporting bulk quantities of ammonia.
We also compete to a limited extent in the areas served by the far northern segment of our ammonia pipeline system with Kanebs ammonia pipeline, which originates on the Gulf Coast and transports domestically produced and imported ammonia.
Tariff Regulation
Interstate Regulation
Our petroleum products pipeline systems interstate common carrier pipeline operations are subject to rate regulation by the FERC under the Interstate Commerce Act, the Energy Policy Act of 1992 and rules and orders promulgated pursuant thereto. FERC regulation requires that interstate oil pipeline rates be posted publicly and that these rates be just and reasonable and nondiscriminatory. Rates of interstate oil pipeline companies, like those charged for our petroleum products pipeline system, are currently regulated by FERC primarily through an index methodology, which in its initial form allowed a pipeline to change its rates based on the annual change in the producer price index, or PPI, for finished goods less 1%. As required by its own regulations, in July 2000, the FERC issued a Notice of Inquiry seeking comment on whether to retain or to change the existing rate indexing methodology. In December 2000, the FERC issued an order concluding that the rate index reasonably estimated the actual cost changes in the pipeline industry and should be continued for another five-year period, subject to review in July 2005. In February 2003, on remand of its December 2000 order from the U.S. Court of Appeals for the Washington D.C. Circuit, the FERC changed the rate indexing methodology to the PPI for finished goods, but without the subtraction of 1% as had been done previously. The FERC made the change prospective only, but did allow oil pipelines to recalculate their maximum ceiling rates as though the new rate indexing methodology had been in effect since July 1, 2001. Under the indexing regulations, a pipeline can request a rate increase that exceeds index levels for indexed rates using a cost-of-service approach, but only after the pipeline establishes that a substantial divergence exists between the actual costs experienced by the pipeline and the rate resulting from application of the PPI. Approximately one-third of the petroleum products pipeline system is subject to this
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indexing methodology. In addition to rate indexing and cost-of-service filings, interstate oil pipeline companies may elect to support rate filings by obtaining authority to charge market-based rates or through an agreement between a shipper and the oil pipeline company that a rate is acceptable. Two-thirds of our petroleum products pipeline systems markets are deemed competitive by the FERC, and we are allowed to charge market-based rates in these markets.
In a June 1996 decision, the FERC disallowed the inclusion of a full income tax allowance in the cost-of-service tariff filing of Lakehead Pipe Line Company, L.P. (Lakehead), an unrelated oil pipeline limited partnership. The FERC held that Lakehead was entitled to include an income tax allowance in its cost-of-service for income attributable to corporate partners but not on income attributable to individual partners. In 1997, Lakehead reached an agreement with its shippers on all contested rates, so there was no judicial review of the FERCs decision. In January 1999, in a FERC proceeding involving SFPP, L.P. (SFPP), another unrelated oil pipeline limited partnership, the FERC followed its decision in Lakehead and held that SFPP may not claim an income tax allowance with respect to income attributable to non-corporate limited partners. Several parties sought rehearing of the FERCs decision in SFPP and of several FERC orders issued on rehearing in the SFPP case. Several parties have also filed appeals of the FERCs orders, which are currently being held in abeyance by the court of appeals pending resolution by the FERC of the remaining requests for rehearing. The FERCs decision in the Lakehead and SFPP proceedings should have no effect on the market-based rates we charge in competitive markets. However, the Lakehead and SFPP decisions might become relevant to our petroleum products pipeline system should we (1) elect in the future to raise our indexed rates using the cost-of-service methodology, (2) be required to use a cost-of-service methodology to defend our indexed rates against a shipper protest alleging that an indexed rate increase substantially exceeds actual cost increases, or (3) be required to defend our indexed rates against a shipper complaint alleging that the pipelines rates are not just and reasonable. In such case, a complainant or protestant could assert that, in light of the decisions regarding Lakehead and SFPP and our ownership of the petroleum products pipeline system, we should be allowed to collect an income tax allowance only with respect to the portion of our partnership units held by corporations. We believe that most if not all of the indexed rates can be supported on a cost-of-service basis, even assuming a reduction in the income tax allowance. Nevertheless, if the indexed rates were challenged, we cannot give assurance that some or all of the indexed rates may not be reduced. If indexed rates were reduced, the amount of cash generated from our operations could be materially reduced.
The Surface Transportation Board (STB), a part of the United States Department of Transportation, has jurisdiction over interstate pipeline transportation of ammonia. The STB succeeded the Interstate Commerce Commission which previously regulated pipeline transportation of ammonia.
The STB is responsible for rate regulation of pipeline transportation of commodities other than water, gas or oil. These transportation rates must be reasonable and a pipeline carrier may not unreasonably discriminate among its shippers. If the STB finds that a carriers rates violate these statutory commands, it may prescribe a reasonable rate. In determining a reasonable rate, the STB will consider, among other factors, the effect of the rate on the volumes transported by that carrier, the carriers revenue needs and the availability of other economic transportation alternatives.
The STB does not need to provide rate relief unless shippers lack effective competitive alternatives. If the STB determines that effective competitive alternatives are not available and a pipeline holds market power, then it must determine whether the pipeline rates are reasonable. The Board generally applies constrained market pricing principles in its economic analysis. Constrained market pricing provides two alternative methodologies for examining the reasonableness of a carriers rates. The first approach examines a carriers existing system to determine whether the carrier is already earning sufficient funds to cover its costs and provide a sufficient return on investment, or would earn sufficient funds after eliminating unnecessary costs from specifically identified inefficiencies and cross-subsidies in its operations. The second approach calculates the revenue requirements that a hypothetical, new and optimally efficient carrier would need to meet in order to serve the complaining shippers.
Customers that protest rates in STB proceedings may use any methodology they choose that is consistent with constrained market pricing principles. When addressing revenue adequacy, a complainant must provide
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more than a single period snapshot of a carriers costs and revenues. The complainant must measure whether a carrier earns adequate revenues over a period of time, as measured by a multi-period discounted cash flow analysis.
The STB has held that unreasonable discrimination occurs when (1) there is a disparity in rates, (2) the complaining party is competitively injured, (3) the carrier is the common source of both the allegedly prejudicial and preferential treatment and (4) the disparity in rates is not justified by transportation conditions.
Intrastate Regulation
Some shipments on our petroleum products pipeline system move within a single state and thus are considered to be intrastate commerce. Our petroleum products pipeline system is subject to certain regulation with respect to such intrastate transportation by state regulatory authorities in the states of Illinois, Kansas and Oklahoma. However, in most instances, the state commissions have not initiated investigations of the rates or practices of petroleum products pipelines.
Because in some instances we transport ammonia between two terminals in the same state, our ammonia pipeline operations are subject to regulation by the state regulatory authorities in Iowa, Nebraska, Oklahoma and Texas. Although the Oklahoma Corporation Commission and the Texas Railroad Commission have the authority to regulate our rates, the state commissions have generally not investigated the rates or practices of ammonia pipelines in the absence of shipper complaints.
Maintenance and Safety Regulations
Our pipeline systems have been constructed, operated, maintained, repaired, tested and used in general compliance with applicable federal, state and local laws and regulations, American Petroleum Institute standards and other generally accepted industry standards and practices. These pipeline systems will continue to be operated, maintained and inspected in accordance with governing regulations and industry practices.
Our pipeline systems are subject to regulation by the United States Department of Transportation under the Hazardous Liquid Pipeline Safety Act (HLPSA) of 1979, as amended, and comparable state statutes relating to the design, installation, testing, construction, operation, replacement and management of its pipeline facilities. HLPSA covers petroleum and petroleum products and requires any entity that owns or operates pipeline facilities to comply with such regulations, to permit access to and copying of records and to make certain reports and provide information as required by the Department of Transportation.
In December 2000, the Department of Transportation adopted new regulations requiring operators of hazardous liquid interstate pipelines to develop and follow an integrity management program that provides for assessment of the integrity of all pipeline segments that could affect designated high consequence areas, including high population areas, drinking water and ecological resource areas that are unusually sensitive to environmental damage from a pipeline release, and commercially navigable waterways. Segments of our pipeline systems are located in high consequence areas and/or have the ability to impact high consequence areas. We believe we are in material compliance with HLPSA requirements. Since this rule went into effect, we have spent approximately $25 million relative to integrity assessment and anticipate spending approximately $36 million during the next five years associated with system integrity assessments. These cost estimates could increase in the future if additional safety measures are required or if existing safety standards are raised that exceed the current pipeline capabilities.
Our pipeline systems are also subject to the requirements of the federal Occupational Safety and Health Act (OSHA), and comparable state statutes. We believe we are in material compliance with OSHA and state requirements, including general industry standards, record-keeping requirements and monitoring of occupational exposures. The OSHA hazard communication standard, the Environmental Protection Agency (EPA)
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community right-to-know regulations under Title III of the federal Superfund Amendment and Reauthorization Act and comparable state statutes require us to organize and disclose information about the hazardous materials used in our operations. Certain parts of this information must be reported to employees, state and local governmental authorities and local citizens upon request. In general, we expect to increase our expenditures during the next decade to comply with more strigent industry and regulatory safety standards such as those described above. At qualifying facilities, we are subject to OSHA Process Safety Management regulations that are designed to prevent or minimize the consequences of catastrophic releases of toxic, reactive, flammable or explosive chemicals. We believe we are in material compliance with the OSHA Process Safety Management regulations.
Environmental
General
The operation of our pipeline systems, terminals and associated facilities in connection with the transportation, storage and distribution of refined petroleum products, crude oil and other liquid hydrocarbons and ammonia is subject to stringent and complex laws and regulations governing the discharge of materials into the environment or otherwise related to environmental protection. As an owner or lessee and operator of these facilities, we must comply with these laws and regulations at the federal, state and local levels. Compliance with existing and anticipated laws and regulations increases the cost of planning, constructing and operating pipelines, terminals and other facilities. Included in our construction and operating costs are capital cost items necessary to maintain or upgrade our equipment and facilities to comply with existing environmental laws and regulations. Failure to comply with these laws and regulations may result in the assessment of administrative, civil and/or criminal penalties, imposition of remedial actions and the issuance of injunctions, or construction bans or delays on ongoing operations. Except as described below under Environmental Liabilities Associated with Magellan Terminal Holdings and the Ammonia Pipeline System and Environmental Liabilities Associated with the Petroleum Products Pipeline System , we believe that our operations are in material compliance with applicable environmental laws and regulations. However, these laws and regulations are subject to frequent change, and we cannot give assurance that the cost to comply with these laws and regulations in the future will not have a material adverse effect on our financial position or results of operations.
Estimates provided below for remediation costs assume that we will be able to use common remedial and monitoring methods or associated engineering or institutional controls to demonstrate compliance with applicable regulatory requirements. These estimates cover the cost of performing assessment, remediation and/or monitoring of impacted soils, groundwater and surface water conditions, but do not include any costs for potential claims by others with respect to these sites. While we do not expect any such potential claims by others to be materially adverse to our operations, financial position, or cash flows, we cannot give assurance that the actual remediation costs or associated remediation liabilities will not exceed estimated amounts.
We may experience future releases of refined petroleum products into the environment from the operation of our pipeline systems, terminals and associated facilities in connection with the transportation, storage and distribution of refined petroleum products, crude oil and other liquid hydrocarbons or discover historical releases that were previously unidentified or not assessed. While we maintain an extensive asset inspection and maintenance program designed, as applicable, to prevent, detect and address these releases promptly, damages and liabilities incurred due to any future environmental releases from our assets nevertheless have the potential to substantially affect our business.
Environmental Indemnification from Williams and its Affiliates
Williams, certain of its affiliates and MMH, will indemnify us against certain environmental liabilities. Williams has guaranteed the obligations of its affiliates. The terms and limitations of these indemnification agreements are summarized below.
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For assets transferred to us from Williams at the time of our initial public offering in February 2001, Williams agreed to indemnify us for up to $15.0 million for environmental liabilities that exceed the amounts covered by the indemnities we received from the sellers of those assets as described below. The indemnity applies to environmental liabilities arising from conduct prior to the closing of the initial public offering (February 9, 2001) and discovered within three years of closing of the initial public offering; however, the discovery period has been extended to August 9, 2004.
In connection with our April 2002 acquisition of Magellan Pipeline, which comprises the majority of our petroleum products pipeline system, Williams has agreed to indemnify us for losses and damages related to breaches of representations and warranties, including environmental representations and warranties and the violation or liabilities arising under any environmental laws prior to the acquisition. This indemnity covers losses in excess of $2.0 million up to a maximum of $125.0 million. Claims related to this environmental indemnity must be made prior to April 2008 and must be related to events that occurred prior to April 11, 2002.
In addition to these two agreements, the purchase and sale agreement (June 2003 PSA) entered into in connection with Williams sale of its interests in us provides us with two additional indemnities related to environmental liabilities.
First, MMH (the buyer under the June 2003 PSA) assumed Williams obligations to indemnify us for $21.9 million of known environmental liabilities, of which $19.0 million was associated with known liabilities at Magellan Pipeline facilities, $2.7 million was associated with known liabilities at our petroleum products terminal facilities and $0.2 million was associated with known liabilities on the ammonia pipeline system.
Second, in the June 2003 PSA, Williams agreed to indemnify us for environmental liabilities arising prior to June 17, 2003 related to all of our facilities to the extent not already indemnified under Williams two preexisting indemnification obligations described above. This additional indemnification includes those liabilities related to our petroleum products terminals and the ammonia pipeline system arising after the initial public offering (February 9, 2001) through June 17, 2003 and those liabilities related to Magellan Pipeline arising after our acquisition of it on April 11, 2002 through June 17, 2003. This indemnification covers environmental as well as other liabilities and is capped at $175.0 million.
A summary of the indemnities we have with Williams and the liabilities and receivables associated with these indemnities is provided in Note 17 Commitments and Contingencies to the accompanying consolidated financial statements.
Environmental Indemnifications From Third Parties
Described below are environmental indemnifications provided by outside entities when we acquired certain of our petroleum product pipeline terminals. Most of the liabilities we assumed in those acquisitions are covered by our indemnities with Williams.
In connection with the acquisition of the Dallas terminal in December 1997, Mobil Oil Corporation retained liability for ongoing remediation activities until agency closure is granted; however, if closure has not been received by December 29, 2013, we will assume any remaining liability.
In connection with the terminal assets purchased from Amoco Oil Company (Amoco) in January 1999, Amoco retained liability for all known remediation actions until agency closure is granted; however, if closure has not been received by January 7, 2014, we will assume any remaining liability.
In connection with the three Gulf Coast marine terminal facilities acquired from Amerada Hess Corporation (Hess) in August 1999, Hess has obligations to conduct and pay for the clean up of certain hazardous
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substances known to be present or have been released prior to August 1999 and has indemnified us for claims and losses arising out of these remediation obligations. These obligations and indemnifications include:
| special cleanup actions of pre-acquisition releases of hazardous substances. This obligation is capped at a maximum of $15.0 million. Hess, however, has no liability until the aggregate amount of initial losses is in excess of a $2.5 million deductible, and then Hess is liable only for the succeeding $12.5 million in losses. If we have a liability that falls into the $2.5 million deductible, a claim will be made to Williams for indemnification if it is discovered prior to August 9, 2004. We can file notification to Hess regarding indemnified matters until July 30, 2004; |
| already known and required remediation actions at the Corpus Christi, Texas and Galena Park, Texas terminal facilities, excluding the Galena Park tar plant remediation, which Williams assumed liability for in January 2002. This obligation has no cap and will remain in effect until July 30, 2014, at which time we will conduct and pay for the ongoing remediation; and |
| fines and claims that may be imposed or asserted under the Superfund Law and federal Resource Conservation and Recovery Act (RCRA) or analogous state laws relative to pre-acquisition events. This indemnity is not subject to any limit or deductible amount. |
In addition to these obligations and indemnities, Hess retained liability for the performance of corrective actions associated with hydrocarbon recovery from ground water and a cooling tower at the Corpus Christi, Texas terminal and a process safety management compliance matter at the Galena Park, Texas terminal facility.
In connection with our acquisition of the New Haven, Connecticut marine terminal from Wyatt Energy, Inc., in August 2000 the seller indemnified us against liabilities related to PCBs. We assumed all other environmental liabilities.
In connection with the acquisition of our two Little Rock, Arkansas terminals in June 2001, TransMontainge Inc. retained liability for ongoing remediation activities until the site receives written completion or a closure order.
We acquired 100% ownership in 6 petroleum products terminals in the Southeast through a series of 4 transactions: (1) a 45.5% interest in the terminals was acquired from Conoco, Inc. in 1996; (2) a 23.5% interest was acquired from Conoco, Inc. in 1998; (3) a 10.0% interest was acquired from Murphy Oil USA, Inc. in 1999; and (4) a 21.0% interest was acquired from Murphy Oil USA, Inc. in 2004. Under the 1996 agreement, Conoco, Inc. retained liability for 45.5% of known environmental liabilities until agency closure is granted. Under the 1998 agreement, TOC Terminals, Inc. retained liability for 23.5% of known environmental liabilities until agency closure is granted, subject to a maximum aggregate liability of $500,000. Under the 2004 agreement, we assumed liability for 31.0% of known environmental liabilities. We have also assumed liability for all unknown environmental liabilities.
Environmental Liabilities Associated with Magellan Terminal Holdings and the Ammonia Pipeline System
The Partnership has insurance policies which provide coverage for environmental matters associated with sudden and accidental releases of petroleum products. As of December 31, 2003, we had no other site-specific environmental insurance policies. Previously existing site-specific policies were retained by Williams at the time MMH acquired Williams interest in us in support of Williams indemnities to us.
Under the Oil Pollution Prevention regulations, EPA regulates the requirements for Spill Prevention, Control, and Countermeasure (SPCC) plans. Currently, we are evaluating the SPCC plans for potential deficiencies at approximately 34 of our petroleum products terminal facilities and costs associated with complying with the regulations cannot be determined at this time. However, we believe that costs incurred to correct any deficiencies associated with complying with the regulations are covered by Williams indemnification obligations described above.
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We have notified the Texas Commission on Environmental Quality regarding certain potential non-compliance issues associated with the Galena Park terminal and its various air permits. At this time, we cannot assess the materiality of these notifications; however, we believe that any corrective action(s) required and/or civil penalty assessed are covered by Williams indemnifications obligations described above.
Environmental Liabilities Associated with the Petroleum Products Pipeline System
Potentially significant assessment, monitoring and remediation projects related to events prior to our acquisition of the petroleum products pipeline system are being performed at about 45 sites in Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, Oklahoma, South Dakota and Wisconsin. We estimate, that the total cost of performing the currently anticipated assessment, monitoring and remediation at these 45 sites over future years will be approximately $23.4 million, of which at least $20.9 million, and potentially all $23.4 million, is covered by our indemnification agreements with Williams or MMH. The most significant remedial costs at these sites are costs attributed to cleanup at eight terminals and four right-of-way locations where we estimate that $17.3 million of the $23.4 million in costs will be incurred. This estimate assumes that we will be able to use common remedial and monitoring methods or associated engineering or institutional controls to demonstrate compliance with applicable regulatory requirements. This estimate covers the cost of performing assessment, remediation and/or monitoring of impacted soils, groundwater and surface water conditions, but does not include any costs for potential claims by others with respect to these sites.
Under the Oil Pollution Prevention regulations, EPA regulates the requirements for SPCC plans. Currently we are assessing the impact of deficiencies at approximately 70 Magellan Pipeline facilities and the costs associated with complying with the regulations cannot be determined at this time. However, we believe that any costs incurred to correct any associated deficiencies to comply with the regulations are covered by Williams indemnification obligations described above.
We are currently negotiating a consent order for Magellan Pipelines Enid terminal. Capital costs associated with that order are estimated at approximately $2.0 million and the civil penalty associated with the alleged non-compliance with federal air regulations from December 1997 through December 2001 are estimated to be between $0.5 million and $1.5 million. We believe these costs are covered by Williams indemnification obligations described above.
On July 2, 2001, the EPA issued an information request asking for information on oil releases and discharges in any amount from Williams and its affiliates pipelines, pipeline systems and pipeline facilities used in the movement of oil or petroleum products during the period from July 1, 1998 through July 2, 2001. In November 2001, Williams furnished its response, which related primarily to our petroleum products pipeline system. In September 2003, the EPA notified Williams it was reviewing Williams response. To date, neither Williams nor we have received further correspondence from the EPA related to this issue; however, we believe any civil penalty that arises from this matter are covered by Williams indemnification obligations described above.
Hazardous Substances and Wastes
In most instances, the environmental laws and regulations affecting our operations relate to the release of hazardous substances or solid wastes into the water or soils, and include measures to control pollution of the environment. For instance, the Comprehensive Environmental Response, Compensation and Liability Act, also known as the Superfund law, and comparable state laws impose liability, without regard to fault or the legality of the original conduct, on certain classes of persons who are considered to be responsible for the release of a hazardous substance into the environment. These persons include the owner or operator of the disposal site or sites where the release occurred and companies that disposed or arranged for the disposal of the hazardous substances. Under the Superfund law, these persons may be subject to joint and several liability for the costs of cleaning up the hazardous substances that have been released into the environment, for damages to natural
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resources and for the costs of certain health studies. The Superfund law also authorizes the EPA, and in some instances third parties, to act in response to threats to the public health or the environment and to seek to recover from the responsible classes of persons the costs they incur. It is not uncommon for neighboring landowners and other third parties to file claims for personal injury and property damage allegedly caused by hazardous substances or other pollutants released into the environment. In the course of our ordinary operations, we may generate waste that falls within the Superfund laws definition of a hazardous substance, and as a result, we may be jointly and severally liable under the Superfund law for all or part of the costs required to clean up sites at which those hazardous substances have been released into the environment.
In 2003, the EPA notified Williams that it was a potentially responsible party for two Superfund sites. Williams has responded to both EPA correspondences indicating that neither Williams nor we have any documentation or knowledge of being a potentially responsible party at either site. Responses from the EPA have not been received to date.
Our operations also generate wastes, including hazardous wastes that are subject to the requirements of the RCRA and comparable state statutes. We are not currently required to comply with a substantial portion of the RCRA requirements because our operations routinely generate only small quantities of hazardous wastes, and we do not hold ourselves out as a hazardous waste treatment, storage or disposal facility operator that is required to obtain a RCRA hazardous waste permit. While RCRA currently exempts a number of wastes, including many oil and gas exploration and production wastes, from being subject to hazardous waste requirements, the EPA from time to time will consider the adoption of stricter disposal standards for non-hazardous wastes. Moreover, it is possible that additional wastes, which could include non-hazardous wastes currently generated during operations, will in the future be designated as hazardous wastes. Hazardous wastes are subject to more rigorous and costly storage and disposal requirements than are non-hazardous wastes. Changes in the regulations could have a material adverse effect on our capital expenditures or operating expenses.
We currently own or lease properties where hydrocarbons are being or have been handled for many years. Although we have utilized operating and disposal practices that were standard in the industry at the time, hydrocarbons or other wastes may have been disposed of or released on, under or from the properties owned or leased by us or on or under other locations where these wastes have been taken for disposal. In addition, many of these properties have been operated by third parties whose treatment and disposal or release of hydrocarbons or other wastes was not under our control. These properties and wastes disposed thereon may be subject to the Superfund law, RCRA and analogous state laws. Under these laws, we could be required to remove or remediate previously disposed wastes, including wastes disposed of or released by prior owners or operators, to clean up contaminated property, including groundwater contaminated by prior owners or operators, or to make capital improvements to prevent future contamination.
Above Ground Storage Tanks
States in which we operate typically have laws and regulations governing above ground tanks containing liquid substances. Generally, these laws and regulations require that these tanks include secondary containment systems or that the operators take alternative precautions to ensure that no contamination results from any leaks or spills from the tanks. The Department of Transportation Office of Pipeline Safety has incorporated API 653 to regulate above ground tanks subject to their jurisdiction. We believe we are in material compliance with all applicable above ground storage tank laws and regulations. As part of our assessment of facility operations we have identified some above ground tanks at our terminals that either are, or are suspected of being, coated with lead-based paints. The removal and disposal of any paints that are found to be lead-based, whenever such activities are conducted in the future as part of our day-to-day maintenance activities, will require increased handling by us. However, we do not expect the costs associated with this increased handling to be significant. We believe that the future implementation of above ground storage tank laws or regulations will not have a material adverse effect on our financial condition or results of operations.
21
Water Discharges
Our operations can result in the discharge of pollutants, including oil. The Oil Pollution Act was enacted in 1990 and amends provisions of the Federal Water Pollution Control Act of 1972 or the Water Pollution Control Act and other statutes as they pertain to prevention and response to oil spills. The Oil Pollution Act subjects owners of facilities to strict, joint and potentially unlimited liability for removal costs and certain other consequences of an oil spill such as natural resource damages, where the spill is into navigable waters, along shorelines or in the exclusive economic zone of the United States. In the event of an oil spill from one of our facilities into navigable waters, substantial liabilities could be imposed upon us. States in which we operate have also enacted similar laws. Regulations have been or are being developed under the Oil Pollution Act and comparable state laws that may also impose additional regulatory burdens on our operations. Although the costs associated with complying with the amended regulations cannot be determined at this time, we do not expect these expenditures to have a material adverse effect on our financial condition or results of operations.
The Federal Water Pollution Control Act imposes restrictions and strict controls regarding the discharge of pollutants into navigable waters. This law and comparable state laws require that permits be obtained to discharge pollutants into state and federal waters and impose substantial potential liability for the costs of noncompliance and damages. Where required, we hold discharge permits that were issued under the Federal Water Pollution Control Act or a state-delegated program, and we believe that we are in material compliance with the terms of those permits. While we have experienced permit discharge exceedences at some of our terminals we do not expect our non-compliance with existing permits and foreseeable new permit requirements to have a material adverse effect on our financial position or results of operations.
Air Emissions
Our operations are subject to the federal Clean Air Act and comparable state and local laws. Under such laws, permits are typically required to emit pollutants into the atmosphere. Amendments to the federal Clean Air Act enacted in 1990, as well as recent or soon to be proposed changes to state implementation plans (SIPs), for controlling air emissions in regional, non-attainment areas require or will require most industrial operations in the United States to incur capital expenditures in order to meet air emission control standards developed by the EPA and state environmental agencies. As a result of these amendments, our facilities that emit volatile organic compounds or nitrogen oxides are subject to increasingly stringent regulations, including requirements that some sources install maximum or reasonably available control technology. In addition, the amendments include an operating permit for major sources of volatile organic compounds, which applies to some of our facilities. We believe that we currently hold or have applied for all necessary air permits and that we are in material compliance with applicable air laws and regulations. Although we can give no assurances, we believe implementation of the 1990 federal Clean Air Act amendments and any changes to the SIPs pertaining to air quality in regional non-attainment areas will not have a material adverse effect on our financial condition or results of operations.
Employee Safety
We are subject to the requirements of the federal OSHA and comparable state statutes that regulate the protection of the health and safety of workers. In addition, the OSHA hazard communication standard requires that certain information be maintained about hazardous materials used or produced in operations and that this information be provided to employees, state and local government authorities and citizens. We believe that our operations are in material compliance with OSHA requirements, including general industry standards, record-keeping requirements and monitoring of occupational exposure to regulated substances.
Title to Properties
Substantially all of our pipelines are constructed on rights-of-way granted by the apparent record owners of the property, and in some instances, these rights-of-way are revocable at the election of the grantor. Several rights-of-way for our pipelines and other real property assets are shared with other pipelines and by third parties.
22
In many instances, lands over which rights-of-way have been obtained are subject to prior liens, which have not been subordinated to the rights-of-way grants. We have obtained permits from public authorities to cross over or under, or to lay facilities in or along, water courses, county roads, municipal streets and state highways, and in some instances, these permits are revocable at the election of the grantor. We have also obtained permits from railroad companies to cross over or under lands or rights-of-way, many of which are also revocable at the grantors election. In some cases, property for pipeline purposes was purchased in fee. In some states and under some circumstances, we have the right of eminent domain to acquire rights-of-way and lands necessary for our pipelines. The previous owners of the applicable pipelines may not have commenced or concluded eminent domain proceedings for some rights-of-way.
Some of the leases, easements, rights-of-way, permits and licenses that have been transferred to us will require the consent of the grantor to transfer these rights, which in some instances is a governmental entity. We believe that we have obtained or will obtain sufficient third-party consents, permits and authorizations for the transfer of the assets necessary for us to operate our business in all material respects. We believe that a failure to obtain all consents, permits or authorizations will not have a material adverse effect on the operation of our business.
We believe that we have satisfactory title to all of our assets or are entitled to indemnification from affiliates of Williams for (1) title defects to the ammonia pipeline that arise within 15 years after the closing of our initial public offering and (2) title defects related to the petroleum products pipeline system that arise within ten years from its acquisition. Although title to these properties is subject to encumbrances in some cases, such as customary interests generally retained in connection with acquisition of real property, liens that can be imposed in some jurisdictions for government-initiated action to clean up environmental contamination, liens for current taxes and other burdens, and easements, restrictions and other encumbrances to which the underlying properties were subject at the time of acquisition by us or our predecessor, we believe that none of these burdens should materially detract from the value of our properties or from our interest in them or should materially interfere with their use in the operation of our business.
The assets of our petroleum products pipeline system have been pledged as collateral to secure the Series A and Series B notes issued by Magellan Pipeline (see Note 13Debt to the accompanying consolidated financial statements for further information).
Employees
To conduct our operations, an affiliate of our general partner employs approximately 823 employees, of whom 435 conduct the operations of our petroleum products pipeline system, 174 conduct the operations of our petroleum products terminals and 214 provide general and administrative services. From June 18, 2003 through December 31, 2003, an affiliate of our general partner contracted with Williams for these services.
Approximately 216 of the employees assigned to our petroleum products pipeline system are represented by the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE). The employees represented by PACE are subject to a contract that extends through January 2006. None of the terminal operations employees are represented by a union. The employees at our Galena Park marine terminal facility were previously represented by a union, but indicated in 2000 their unanimous desire to terminate their union affiliation. Nevertheless, the National Labor Relations Board (NLRB) ordered us to bargain with the union as the exclusive collective bargaining representative of the employees at the facility. Subsequently, the NLRB reversed its decision and withdrew its order. Our general partners affiliate considers its employee relations to be good.
(d) Financial Information About Geographical Areas
We have no revenue or segment profit or loss attributable to international activities.
23
(e) Available Information
We file annual, quarterly and other reports and other information electronically with the SEC. You may read and copy any materials we file with the SEC at the SECs Public Reference Room at 450 Fifth Street, NW, Washington, DC 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site ( http://www.sec.gov ) that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including our filings. You can also obtain information about us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
Our Internet address is www.magellanlp.com . We make available, free of charge on or through our Internet website, our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
Our Corporate Governance Guidelines, Audit Committee charter, Compensation Committee charters and Code of Business Conduct, each of which has been approved by our general partners board of directors, are available on our website at www.magellanlp.com . Our unitholders may request a written copy of these materials by calling 1-918-574-7000.
ITEM 2. | Properties |
See Item 1(c) for a description of the locations and general character of our material properties.
ITEM 3. | Legal Proceedings |
In July 2001, the EPA, pursuant to Section 308 of the Clean Water Act, preliminarily determined that Magellan Pipeline may have systematic problems with discharges from its pipelines and served Williams with an information request. In November 2001, Williams submitted a timely response to the EPA information request. In September 2003, the EPA notified Williams that it was reviewing its response. No further communications have been received from the EPA regarding this matter. If the EPA determines that Magellan Pipeline has systematic problems with discharges from its pipelines, it may result in a fine in excess of $100,000. We believe any fine the EPA may assess in this matter is covered by Williams indemnity obligations.
The Oklahoma Department of Environmental Quality (ODEQ) alleges in two separate Notice of Violations dated June 14, 2002 and September 30, 2003 that a terminal on our petroleum products pipeline system located in Enid, Oklahoma violated its air permit and applicable regulations by non-compliance with the federal Maximum Achievable Control Technology (MACT) standards, which the ODEQ alleges are applicable to the facility. This proceeding is in the preliminary stages. However, if the ODEQ determines that the terminal is subject to the MACT standards, it may result in a monetary fee in excess of $100,000. We believe that any monetary fees and any cost to bring the terminal into compliance with the MACT standards are covered by Williams indemnity obligation.
On August 8, 2003, we notified the Texas Commission on Environmental Quality (TCEQ) that we were requesting immunity from civil and administrative penalties under the Texas Environmental Health and Safety Audit Privilege Act (Audit Act) for potential violations of TCEQ rules, federal rules or permit emission limits arising out of air emissions produced when storage tank floating roofs are landed on their support legs when tanks are emptied. To qualify for immunity under the Audit Act, the violation must have been noted and disclosed as a result of a voluntary environmental audit and must meet the reasonable inquiry standard required under the EPA Clean Air Act Title V regulations. If the TCEQ concludes that our environmental audit that led to the disclosure to TCEQ did not exceed the reasonable inquiry standard, the immunity provided by the Audit Act would not apply, which may result in a fine in excess of $100,000. We believe that any fine the TCEQ may assess in this matter is covered by Williams indemnity obligations.
24
We are also a party to various legal actions that have arisen in the ordinary course of our business. We do not believe that the resolution of these matters will have a material adverse effect on our financial condition or results of operations.
ITEM 4. | Submission of Matters to a Vote of Security Holders |
Our Annual Meeting of Limited Partners was held on November 7 and 21, 2003. At this meeting, two individuals were elected as directors of our general partners board of directors and the conversion of each outstanding class B common unit into one common unit, and the resulting issuance of an aggregate of 7,830,924 common units upon the conversion and cancellation of the 7,830,924 class B common units was approved.
A tabulation of the voting with respect to each of the matters voted upon at the meeting follows:
Election of Directors
Name |
For |
Withheld |
Abstain |
Broker Non-Votes |
||||
Justin S. Huscher |
14,676,245 | 776,222 | | | ||||
David M. Leuschen |
14,680,065 | 772,402 | | |
Conversion of Class B Common Units into Common Units
For |
Against |
Abstain |
Broker Non-Votes |
|||
7,320,005 |
78,831 | 45,365 | 5,777,973 |
PART II
ITEM 5. | Market For Registrants Common Equity and Related Stockholder Matters |
We completed our initial public offering in February 2001, and our common units began trading on the New York Stock Exchange under the ticker symbol WEG. Subsequent to our name change to Magellan Midstream Partners, L.P. on September 1, 2003, our common units are listed on the New York Stock Exchange under the ticker symbol MMP. At the close of business on March 1, 2004, we had 143 registered holders and 24,790 beneficial holders of record of our common units. The high and low closing sales price ranges and distributions paid by quarter for 2001, 2002 and 2003 are as follows:
2001
|
2002
|
2003
|
|||||||||||||||||||||||||
Quarter |
High
|
Low
|
Distribution*
|
High
|
Low
|
Distribution*
|
High
|
Low
|
Distribution*
|
||||||||||||||||||
1 st |
$ | 31.00 | $ | 24.00 | $ | .2920 | $ | 43.30 | $ | 32.85 | $ | .6125 | $ | 37.19 | $ | 33.30 | $ | .7500 | |||||||||
2 nd |
$ | 33.42 | $ | 28.45 | $ | .5625 | $ | 42.35 | $ | 30.75 | $ | .6750 | $ | 48.20 | $ | 37.54 | $ | .7800 | |||||||||
3 rd |
$ | 40.40 | $ | 29.40 | $ | .5775 | $ | 36.40 | $ | 25.20 | $ | .7000 | $ | 48.55 | $ | 42.40 | $ | .8100 | |||||||||
4 th |
$ | 44.00 | $ | 37.00 | $ | .5900 | $ | 34.70 | $ | 29.50 | $ | .7250 | $ | 55.03 | $ | 45.80 | $ | .8300 |
* | Represents declared distributions associated with each respective quarter. Distributions were declared and paid within 45 days following the close of each quarter. The distribution for the first quarter of 2001 was pro-rated for the period from February 10, 2001 through March 31, 2001 due to the timing of our initial public offering. |
In addition to common units, we also issued 5,679,694 subordinated units as part of our initial public offering in February 2001. There is no established public trading market for these units. All of the subordinated units are held by an affiliate of our general partner and receive a quarterly distribution only after sufficient funds have been paid to the common units, as described below. In addition, the subordinated units generally have reduced voting rights equal to one-half vote for each unit owned.
25
Prior to November 2003, we also had 7,830,924 class B common units outstanding, which were all held by an affiliate of our general partner. These units were issued as partial payment for the April 2002 purchase of our petroleum products pipeline system (see Note 6Acquisitions and Divestitures in the accompanying consolidated financial statements for additional information on this acquisition). These units were equivalent to common units except they only had voting rights with respect to matters that would have a material impact on the holders of such units. The holder of the class B common units had the right to request conversion of these units into common units on a 1-for-1 basis beginning April 2003. The holder did request that the common unitholders vote to approve the conversion of the class B common units and such approval was granted at the annual meeting of limited partners held during November 2003. These units have converted to common units and are no longer outstanding.
During the subordination period, the holders of our common units are entitled to receive each quarter a minimum quarterly distribution of $0.525 per unit ($2.10 annualized) prior to any distribution of available cash to holders of our subordinated units. The subordination period is defined generally as the period that will end on the first day of any quarter beginning after December 31, 2005 if (1) we have distributed at least the minimum quarterly distribution on all outstanding units with respect to each of the immediately preceding three consecutive, non-overlapping four-quarter periods and (2) our adjusted operating surplus, during such periods, as defined in our partnership agreement, equals or exceeds the amount that would have been sufficient to enable us to distribute the minimum quarterly distribution on all outstanding units on a fully diluted basis and the related distribution on the 2% general partner interest during those periods. In addition, one-quarter of the subordinated units may convert to common units on a one-for-one basis after December 31, 2003 and one-quarter of the subordinated units may convert to common units on a one-for-one basis after December 31, 2004 if we meet the tests set forth in our partnership agreement. If the subordination period ends, the rights of the holders of subordinated units will no longer be subordinated to the rights of the holders of common units and the subordinated units may be converted into common units. We met the first early conversion test effective February 2004, and 25%, or 1,419,923, of our 5,679,694 then outstanding subordinated units converted to common units. The impact of this conversion is that the existing common units have less subordinated protection with respect to distributions and the subordinated units that converted into common units received voting rights equivalent to those of the common units.
During the subordination period, our cash is distributed first 98% to the holders of common units and 2% to our general partner until there has been distributed to the holders of common units an amount equal to the minimum quarterly distribution and arrearages in the payment of the minimum quarterly distribution on the common units for any prior quarter. Any additional cash is distributed 98% to the holders of subordinated units and 2% to our general partner until there has been distributed to the holders of subordinated units an amount equal to the minimum quarterly distribution.
Our general partner is entitled to incentive distributions if the amount we distribute with respect to any quarter exceeds specified target levels shown below:
Percentage of
Distributions |
||||
Quarterly Distribution Amount per Unit |
Limited
Partners |
General Partner |
||
Up to $.578 |
98 | 2 | ||
Above $.578 up to $.656 |
85 | 15 | ||
Above $.656 up to $.788 |
75 | 25 | ||
Above $.788 |
50 | 50 |
We must distribute all of our cash on hand at the end of each quarter, less reserves established by our general partner. We refer to this cash as available cash, which is defined in our partnership agreement. The amount of available cash may be greater than or less than the minimum quarterly distribution. We currently pay quarterly cash distributions of $0.83 per unit, which entitles our general partner to receive approximately 12% of
26
the total cash distributions paid. In general, we intend to continue to increase our cash distributions in the future assuming no adverse change in our operations, economic conditions and other factors. However, we cannot guarantee that future distributions will continue at such levels.
ITEM 6. |
SELECTED FINANCIAL AND OPERATING DATA
We have derived the summary selected historical financial data from our current and historical audited consolidated financial statements and related notes. Due to the April 2002 acquisition of Magellan Pipeline, which comprises the majority of our petroleum products pipeline system, we have restated our consolidated financial statements and notes to reflect the results of operations, financial position and cash flows of Magellan Midstream Partners, L.P. and Magellan Pipeline on a combined basis throughout the periods presented. This financial information is an integral part of, and should be read in conjunction with, the consolidated financial statements and notes thereto. All other amounts have been prepared from our financial records. Information concerning significant trends in the financial condition and results of operations is contained in Managements Discussion and Analysis of Financial Condition and Results of Operations.
The historical results for Magellan Pipeline included income and expenses and assets and liabilities that were conveyed to and assumed by an affiliate of Magellan Pipeline prior to our acquisition of it. The assets principally included Magellan Pipelines interest in and agreement related to Longhorn Partners Pipeline, L.P. (Longhorn), an inactive refinery site at Augusta, Kansas, a pipeline construction project, the ATLAS 2000 software system and the pension asset and obligations associated with the non-contributory defined-benefit pension plan that covered employees assigned to Magellan Pipelines operations. The liabilities principally included the environmental liabilities associated with an inactive refinery site in Augusta, Kansas and current and deferred income taxes and affiliate note payable. The current and deferred income taxes and the affiliate note payable were contributed to us in the form of a capital contribution by an affiliate of Williams. Also, as agreed between the Partnership and Williams, operating results from Magellan Pipelines petroleum products management operation, other than an annual fee of approximately $4.0 million, were not included in the financial results of the Partnership since April 2002. In addition, general and administrative expenses related to the petroleum products pipeline system for which the Partnership had been reimbursing its general partner, were limited to $30.7 million on an annual basis. This cap was increased to $31.0 million on February 1, 2003 when Magellan Pipeline began operating the Rio Grande Pipeline. The ATLAS 2000 software system assets were contributed to the Partnership on June 17, 2003 in conjunction with the sale by Williams of its interests in the Partnership (see Change in Ownership of General Partner under Note 1Organization and Presentation in the accompanying consolidated financial statements), and the depreciation expense associated with those assets has been included in the Partnerships results since that date. Also, the Partnership acquired Williams interest in the petroleum products management operation in July 2003 (see Note 6Acquisitions and Divestitures in the accompanying consolidated financial statements), and the results of this operation have been included in the Partnerships results subsequent to that date.
EBITDA, a non-generally accepted accounting principle measure presented in the following schedules, is defined as net income plus provision for income taxes, debt placement fee amortization, interest expense (net of interest income) and depreciation and amortization. EBITDA should not be considered an alternative to net income, operating income, cash flow from operations or any other measure of financial performance presented in accordance with generally accepted accounting principles (GAAP). Because EBITDA excludes some items that affect net income and these items may vary among other companies, the EBITDA data presented may not be comparable to similarly titled measures of other companies. Our management uses EBITDA as a performance measure to assess the viability of projects and to determine overall rates of return on alternative investment opportunities. A reconciliation of EBITDA to net income, the nearest comparable GAAP measure, is included in the following schedules.
27
In addition to EBITDA, the non-GAAP measure of operating margin (in the aggregate and by segment) is presented in the following table. The components of operating margin are computed by using amounts that are determined in accordance with GAAP. A reconciliation of operating margin to operating profit, which is its nearest comparable GAAP financial measure, is included in the table (see Note 16Segment Disclosures in the accompanying consolidated financial statements for a reconciliation of segment operating margin to segment operating profit). The Partnership believes that investors benefit from having access to the same financial measures being utilized by management. Operating margin is an important performance measure of the economic success of the Partnerships core operations. This measure forms the basis of the Partnerships internal financial reporting and is used by management in deciding how to allocate capital resources between segments. Operating profit, alternatively, includes expense items that management does not consider when evaluating the core profitability of an operation such as depreciation and general and administrative costs.
Year Ended December 31,
|
||||||||||||||||||||
1999
|
2000
|
2001
|
2002
|
2003
|
||||||||||||||||
(in thousands, except per unit amounts) | ||||||||||||||||||||
Income Statement Data: |
||||||||||||||||||||
Transportation and terminals revenues |
$ | 287,107 | $ | 318,121 | $ | 339,412 | $ | 363,740 | $ | 372,848 | ||||||||||
Product sales revenues |
70,750 | 106,873 | 108,169 | 70,527 | 112,312 | |||||||||||||||
Affiliate construction and management fee revenues |
17,875 | 1,852 | 1,018 | 210 | | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Total revenues |
375,732 | 426,846 | 448,599 | 434,477 | 485,160 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Operating expenses including environmental expenses net of indemnifications |
121,599 | 144,899 | 160,880 | 155,146 | 166,883 | |||||||||||||||
Product purchases |
59,230 | 94,141 | 95,268 | 63,982 | 99,907 | |||||||||||||||
Affiliate construction expenses |
15,464 | 1,025 | | | | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Operating margin |
179,439 | 186,781 | 192,451 | 215,349 | 218,370 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Depreciation and amortization |
25,670 | 31,746 | 35,767 | 35,096 | 36,081 | |||||||||||||||
General and administrative |
47,062 | 51,206 | 47,365 | 43,182 | 56,846 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Total costs and expenses |
269,025 | 323,017 | 339,280 | 297,406 | 359,717 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Operating profit |
106,707 | 103,829 | 109,319 | 137,071 | 125,443 | |||||||||||||||
Interest expense, net |
18,998 | 25,329 | 12,113 | 21,758 | 34,536 | |||||||||||||||
Debt placement fees |
| | 253 | 9,950 | 2,830 | |||||||||||||||
Other (income) expense, net |
(1,511 | ) | (816 | ) | (431 | ) | (2,112 | ) | (92 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Income before income taxes |
89,220 | 79,316 | 97,384 | 107,475 | 88,169 | |||||||||||||||
Provision for income taxes (a) |
34,121 | 30,414 | 29,512 | 8,322 | | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Net income |
$ | 55,099 | $ | 48,902 | $ | 67,872 | $ | 99,153 | $ | 88,169 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Basic net income per limited partner unit |
$ | 1.87 | $ | 3.68 | $ | 3.32 | ||||||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||
Diluted net income per limited partner unit |
$ | 1.87 | $ | 3.67 | $ | 3.31 | ||||||||||||||
|
|
|
|
|
|
|
|
|
||||||||||||
Balance Sheet Data: |
||||||||||||||||||||
Working capital (deficit) |
$ | (2,115 | ) | $ | 17,828 | $ | (2,211 | ) | $ | 47,328 | $ | 77,438 | ||||||||
Net investment in direct financing leases |
3,143 | 2,770 | 11,046 | 10,231 | 9,230 | |||||||||||||||
Total assets |
973,939 | 1,050,159 | 1,104,559 | 1,120,359 | 1,194,624 | |||||||||||||||
Long-term debt |
| | 139,500 | 570,000 | 569,100 | |||||||||||||||
Affiliate long-term note payable (b) |
406,022 | 432,957 | 138,172 | | | |||||||||||||||
Partners capital |
339,601 | 388,503 | 589,682 | 451,757 | 498,149 | |||||||||||||||
Cash Flow Data: |
||||||||||||||||||||
Cash distributions declared per unit (c) |
$ | 2.02 | $ | 2.71 | $ | 3.17 | ||||||||||||||
Cash distributions paid per unit (c) |
$ | 1.43 | $ | 2.58 | $ | 3.07 |
28
Year Ended December 31,
|
|||||||||||||||
1999
|
2000
|
2001
|
2002
|
2003
|
|||||||||||
(in thousands, except per unit amounts) | |||||||||||||||
Other Data: |
|||||||||||||||
Operating margin: |
|||||||||||||||
Petroleum products pipeline system |
$ | 153,686 | $ | 147,778 | $ | 143,711 | $ | 163,233 | $ | 162,494 | |||||
Petroleum products terminals |
17,141 | 31,286 | 38,240 | 43,844 | 46,909 | ||||||||||
Ammonia pipeline system |
8,612 | 7,717 | 10,500 | 8,272 | 8,094 | ||||||||||
Allocated partnership depreciation costs (d) |
| | | | 873 | ||||||||||
|
|
|
|
|
|
|
|
|
|
||||||
Operating margin |
$ | 179,439 | $ | 186,781 | $ | 192,451 | $ | 215,349 | $ | 218,370 | |||||
|
|
|
|
|
|
|
|
|
|
||||||
EBITDA: |
|||||||||||||||
Net income |
$ | 55,099 | $ | 48,902 | $ | 67,872 | $ | 99,153 | $ | 88,169 | |||||
Income taxes (a) |
34,121 | 30,414 | 29,512 | 8,322 | | ||||||||||
Amortization of debt placement fees |
| | 253 | 9,950 | 2,830 | ||||||||||
Interest expense, net |
18,998 | 25,329 | 12,113 | 21,758 | 34,536 | ||||||||||
Depreciation and amortization |
25,670 | 31,746 | 35,767 | 35,096 | 36,081 | ||||||||||
|
|
|
|
|
|
|
|
|
|
||||||
EBITDA |
$ | 133,888 | $ | 136,391 | $ | 145,517 | $ | 174,279 | $ | 161,616 | |||||
|
|
|
|
|
|
|
|
|
|
||||||
Year Ended December 31,
|
|||||||||||||||
1999
|
2000
|
2001
|
2002
|
2003
|
|||||||||||
Operating Statistics: |
|||||||||||||||
Petroleum products pipeline system: |
|||||||||||||||
Transportation revenue per barrel shipped (cents per barrel) |
91.4 | 89.1 | 90.8 | 94.9 | 96.4 | ||||||||||
Transportation barrels shipped (millions) |
222.5 | 229.1 | 236.1 | 234.6 | 237.6 | ||||||||||
Barrel miles (billions) |
67.8 | 68.2 | 70.5 | 71.0 | 70.5 | ||||||||||
Petroleum products terminals: |
|||||||||||||||
Marine terminal average storage capacity utilized per month (million barrels) (e) |
10.1 | 14.7 | 15.7 | 16.2 | 15.2 | ||||||||||
Marine terminal throughput (million barrels) (f) |
N/A | 3.7 | 11.5 | 20.5 | 22.2 | ||||||||||
Inland terminal throughput (million barrels) |
58.1 | 56.1 | 56.7 | 57.3 | 61.2 | ||||||||||
Ammonia pipeline system: |
|||||||||||||||
Volume shipped (thousand tons) |
795 | 713 | 763 | 712 | 614 |
(a) | Prior to our initial public offering on February 9, 2001, our petroleum products terminals and ammonia pipeline system operations were subject to income taxes. Prior to our acquisition of Magellan Pipeline on April 11, 2002, Magellan Pipeline was also subject to income taxes. Because we are a partnership, the petroleum products terminals and ammonia pipeline system were no longer subject to income taxes after our initial public offering, and Magellan Pipeline was no longer subject to income taxes following our acquisition of it. |
(b) | At the time of our initial public offering, the affiliate note payable associated with the petroleum products terminals operations was contributed to us as a capital contribution by an affiliate of Williams. At the closing of our acquisition of Magellan Pipeline, its affiliate note payable was also contributed to us as a capital contribution by an affiliate of Williams. |
(c) | Cash distributions declared represent distributions declared associated with each respective calendar year. Distributions were declared and paid within 45 days following the close of each quarter. Cash distributions declared for 2001 include a pro-rated distribution for the first quarter, which included the period from February 10, 2001 through March 31, 2001. Cash distributions paid represent cash payments for distributions for each of the periods presented. |
(d) | During 2003, certain assets were contributed to the Partnership and were recorded as property, plant and equipment at the Partnership level and not at the segment level. Prior to 2003 all property, plant and equipment of the Partnership was recorded at the segment level. The associated depreciation expense was charged to the Partnerships various business segments which, in turn, recognized these allocated costs as operating expense. Consequently, the segments individual operating margins were reduced by these costs. |
29
(e) | For the year ended December 31, 1999, represents the average storage capacity utilized per month for the Gulf Coast marine terminal facilities for the five months that we owned these assets in 1999. For the year ended December 31, 2000, represents the average monthly storage capacity utilized for the Gulf Coast facilities (11.8 million barrels) and the average monthly storage capacity utilized for the four months that we owned the New Haven marine terminal facility in 2000 (2.9 million barrels). All of the above amounts exclude the Gibson facility, which is operated as a throughput facility. |
(f) | For the year ended December 31, 2000, represents four months of activity at the New Haven facility, which was acquired in September 2000. For the year ended December 31, 2001, represents a full year of activity for the New Haven facility (9.3 million barrels) and two months of activity at the Gibson facility (2.2 million barrels), which was acquired in October 2001. |
ITEM 7. |
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Introduction
Managements Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with the consolidated financial statements and notes thereto. Magellan Midstream Partners, L.P., formerly Williams Energy Partners L.P., is a publicly traded limited partnership formed to own, operate and acquire a diversified portfolio of complementary energy assets. We are principally engaged in the transportation, storage and distribution of refined petroleum products. Our current asset portfolio consists of:
| A 6,700-mile refined petroleum products pipeline system with 39 terminals; |
| five marine terminal facilities; |
| 29 inland terminals (six of which were acquired during January 2004 as discussed in Recent Developments below); and |
| an 1,100-mile ammonia pipeline system. |
During April 2002, we acquired Magellan Pipeline Company, LLC (Magellan Pipeline), which comprises the majority of our petroleum products pipeline system, for approximately $1.0 billion from a wholly owned subsidiary of The Williams Companies, Inc. (Williams). Because Williams was an affiliate of ours at the time of the acquisition, the transaction was between entities under common control and, as such, was accounted for similar to a pooling of interest. Accordingly, our consolidated financial statements and notes have been restated to reflect the historical results of operations, financial position and cash flows of this pipeline system and us on a combined basis throughout the periods presented.
Significant Events
On June 17, 2003, Williams sold its 54.6% interest in us to Magellan Midstream Holdings, L.P. (MMH), a new entity jointly formed by private equity firms Madison Dearborn Capital Partners IV, LLC and Carlyle/Riverstone MLP Holdings, L.P. MMH acquired 1.1 million of our common units, 5.7 million subordinated units, 7.8 million class B common units and 100% of the ownership interest in our general partner.
The change in majority ownership of this transaction resulted in the following items, primarily due to our separation from Williams:
| effective September 1, 2003, we began doing business as Magellan Midstream Partners, L.P. and changed our New York Stock Exchange ticker symbol to MMP; |
30
| based on previous agreements between Williams and us, Williams had responsibility for providing our general and administrative (G&A) services, which included functions such as commercial operations, engineering, information technology, finance, accounting, human resources and other corporate services. We paid a specified cash cost for these services, excluding expenses associated with our equity-based incentive plans, with the capped amount escalating annually. Williams was responsible for paying any cost related to these services in excess of the amount we paid to them. As a result of the sale of Williams interests in us, these agreements with Williams terminated. MMH agreed to continue providing G&A services to us and we incur the same cash cost, which was equivalent to $38.2 million on an annual basis at December 31, 2003, excluding expenses associated with our equity-based incentive plans. MMH will reimburse us for amounts that exceed the cap. The cap will escalate at 7.0% annually and will further increase for incremental G&A costs associated with acquisitions we complete; |
| under the new organization structure put in place after MMHs acquisition of us, we can now clearly identify all G&A costs required to support ourselves. Actual cash G&A costs incurred by us will continue to be limited to the G&A cap and the amount of costs above the cap that MMH must pay will be recorded as a capital contribution by our general partner. We recorded expense of approximately $5.9 million for the period June 18, 2003 to December 31, 2003 related to the reimbursable G&A. The reimbursable G&A expense will not impact earnings per unit for the limited partners as the costs above the cap are allocated entirely to our general partners net income. In addition, the reimbursable G&A expense will not impact cash available for distribution as these costs are reimbursed to us by our affiliate; |
| we recorded a $5.5 million affiliate liability during 2003 for paid-time off benefits associated with employees supporting us. Prior to June 17, 2003, this liability had been recorded on the balance sheet of Williams. The corresponding expenses did not impact cash available for distribution in 2003; |
| as part of our separation from Williams, we paid for $5.0 million of transition costs primarily to establish our own G&A functions and change our name. In addition, we incurred $0.9 million of preparatory costs associated with the transition and upgrade related to our financial accounting systems. Therefore, we were responsible for funding $5.9 million of the transition costs with any incremental transition costs above this amount recorded as a capital contribution by our general partner. During 2003, transition costs totaled $8.7 million. We recorded $3.7 million of this amount as expense and $5.0 million to property, plant and equipment. The costs in excess of $5.9 million will not impact cash available for distributions or earnings per unit for the limited partners as the costs above our $5.9 million responsibility is allocable entirely to our general partner. We expect to incur approximately $1.7 million of transition costs during 2004; and |
| MMH assumed $21.9 million of the environmental indemnifications from Williams associated with known environmental liabilities as of March 31, 2003. Therefore, amounts recorded in our financial statements associated with these known liabilities are now indemnified by MMH. We will seek reimbursement from Williams for other environmental liabilities and environmental capital expenditures in excess of this amount that qualify for reimbursement. |
In late December 2003, MMH sold 4,300,000 common units and we sold 200,000 common units in an underwritten public offering. MMH sold an additional 675,000 common units in January 2004, when the underwriters exercised their over-allotment option. The net proceeds from our sale of the 200,000 units, after transaction costs and underwriting commissions, were $9.5 million. We also received a $0.2 million contribution from MMH to maintain its 2% general partner interest. Proceeds from these transactions will be used for general partnership purposes. Following these transactions, MMH has an approximate 36% ownership interest in us, including its 2% general partner interest.
31
Recent Developments
On January 27, 2004, the board of directors of our general partner declared a quarterly cash distribution of $0.83 per unit for the period of October 1 through December 31, 2003. The fourth-quarter distribution represents a 14% increase over the fourth-quarter 2002 distribution of $0.725 per unit and a 58% increase since our initial public offering in February 2001. The distribution was paid on February 13, 2004 to unitholders of record on February 6, 2004.
On January 29, 2004, we announced our acquisition of ownership interests in 14 inland terminals located in the southeastern United States for $24.8 million. We previously owned a 79% interest in eight of these terminals and acquired the remaining 21% ownership interest in these eight terminals from Murphy Oil USA, Inc. In addition, we acquired sole ownership of six terminals that had been jointly owned by Murphy Oil USA, Inc. and Colonial Pipeline Company.
In February 2004, we entered into three separate agreements with two different banks for forward starting interest rate swaps totaling $150.0 million. The swaps begin in October 2007, when we expect to refinance the majority of Magellan Pipelines $480.0 million senior secured notes. Under the swap agreements, we will pay fixed interest rates and will receive LIBOR for a ten-year period, which is the assumed tenure of replacement debt. The average fixed rate on the swaps is 5.9%.
On March 2, 2004, we acquired a 50% ownership in Osage Pipe Line Company, LLC, which owns the Osage Pipeline, for $25.0 million from National Cooperative Refinery Association (NCRA). The 135-mile Osage pipeline transports crude oil from Cushing, Oklahoma to El Dorado, Kansas and has connections to the NCRA refinery in McPherson, Kansas and the Frontier refinery in El Dorado, Kansas. The remaining 50% interest in the Osage Pipe Line Company, LLC will continue to be owned by NCRA.
Overview
In 2003, our cash flow significantly exceeded our debt service obligations and cash distributions to our unitholders. Our petroleum products pipeline system generates a substantial portion of this cash flow. The revenues generated from the petroleum products pipeline business are significantly influenced by demand for refined petroleum products, which has been growing in the markets we serve. In addition, expenses for this business are principally fixed and relate to routine maintenance and system integrity work as well as field and support personnel cost.
We expect to maintain or grow the cash flow of the petroleum products pipeline system as well as our other businesses in the future. However, a prolonged period of high refined-product prices could lead to a reduction in demand and result in lower shipments on our pipeline system. In addition, increased pipeline maintenance regulations, higher power costs and higher interest rates could decrease the amount of cash we generate.
Petroleum Products Pipeline System. Our petroleum products pipeline system is a common carrier transportation pipeline and terminals network. The system generates approximately 80% of its revenues, excluding the sale of petroleum products, through transportation tariffs for volumes of petroleum products it ships. These tariffs vary depending upon where the product originates, where ultimate delivery occurs and any applicable discounts. All transportation rates and discounts are in published tariffs filed with the Federal Energy Regulatory Commission (FERC). The petroleum products pipeline system also earns revenues from non-tariff based activities, including leasing pipeline and storage tank capacity to shippers on a long-term basis and by providing data services and product services such as ethanol unloading and loading, additive injection, custom blending and laboratory testing.
Our petroleum products pipeline system generally does not produce, trade or take title to the products it transports. However, the system does generate small volumes of product through its fractionation activities.
32
In July 2003, we purchased a petroleum products management operation from Williams and we now take title to the associated inventories and resulting products. From April 2002 through June 2003, we did not purchase and take title to the inventories or resulting products associated with this operation but performed services related to this operation for an annual fee of approximately $4 million. We also purchase and fractionate transmix and sell the resulting separated products.
Operating costs and expenses incurred by the petroleum products pipeline system are principally fixed costs related to routine maintenance and system integrity as well as field and support personnel. Other costs, including power, fluctuate with volumes transported and stored on the system. Expenses resulting from environmental remediation projects have historically included costs from projects relating both to current and past events. In connection with our acquisition of this pipeline system, an affiliate of Williams agreed to indemnify us for costs and expenses relating to environmental remediation for events that occurred before April 11, 2002 and are discovered within six years from that date. See BusinessEnvironmental under Item 1 of this 10-K report.
Petroleum Products Terminals. Within our terminals network, we operate two types of terminals: marine terminal facilities and inland terminals. The marine terminal facilities are large product storage facilities that generate revenues primarily from fees that we charge customers for storage and throughput services. The inland terminals earn revenues primarily from fees we charge based on the volumes of refined petroleum products distributed from these terminals. The inland terminals also earn ancillary revenues from injecting additives into gasoline and jet fuel and filtering jet fuel.
Operating costs and expenses that we incur in our marine and inland terminals are principally fixed costs related to routine maintenance as well as field and support personnel. Other costs, including power, fluctuate with storage utilization or throughput levels.
Ammonia Pipeline System. The ammonia pipeline system earns the majority of its revenue from transportation tariffs that we charge for transporting ammonia through the pipeline. Effective February 2003, we entered into an agreement with a third-party pipeline company to operate our ammonia pipeline system. Operating costs and expenses charged to us are principally fixed costs related to routine maintenance as well as field personnel. Other costs, including power, fluctuate with volumes transported on the pipeline.
Acquisition History
We have increased our operations through a series of acquisitions:
| in March 2004, the acquisition of a 50% ownership interest in Osage Pipeline; |
| in January 2004, the acquisition of six inland terminals and the remaining 21% ownership interest in eight terminals; and |
| in July 2003, the acquisition of the petroleum products management business from a subsidiary of Williams; |
| in April 2002, the acquisition of the 6,700-mile petroleum products pipeline system from a subsidiary of Williams; |
| in December 2001, the acquisition of a natural gas liquids pipeline in Illinois from Aux Sable Liquid Products L.P.; |
| in October 2001, the acquisition of a marine crude oil terminal facility in Gibson, Louisiana from Geonet Gathering, Inc.; |
| in June 2001, the acquisition of two inland refined petroleum products terminals in Little Rock, Arkansas from TransMontaigne, Inc.; and |
| in April 2001, the acquisition of a refined petroleum products pipeline in Dallas, Texas from Equilon Pipeline Company LLC, which is part of our petroleum products terminals segment; |
33
Results of Operations
The non-generally accepted accounting principle (GAAP) financial measure of operating margin is presented below. The components of operating margin are computed by using amounts that are determined in accordance with GAAP. A reconciliation of operating margin to operating profit, which is its nearest comparable GAAP financial measure, is included in the table below.
We believe that investors benefit from having access to the same financial measures being utilized by management. Operating margin is an important performance measure of the economic success of our core operations. This measure forms the basis of our internal financial reporting and is used by management in deciding how to allocate capital resources between segments. Operating profit, alternatively, includes expense items that management does not consider when evaluating the core profitability of an operation such as depreciation and G&A costs.
Year Ended December 31, 2002 Compared to Year Ended December 31, 2003
Year Ended December 31, |
|||||||
2002
|
2003
|
||||||
Financial Highlights (in millions) |
|||||||
Revenues: |
|||||||
Transportation and terminals revenue: |
|||||||
Petroleum products pipeline system |
$ | 272.5 | $ | 281.4 | |||
Petroleum products terminals |
78.1 | 78.9 | |||||
Ammonia pipeline system |
13.1 | 12.6 | |||||
|
|
|
|
|
|||
Total transportation and terminals revenue |
363.7 | 372.9 | |||||
Product sales |
70.6 | 112.3 | |||||
Affiliate management fees |
0.2 | | |||||
|
|
|
|
|
|||
Total revenues |
434.5 | 485.2 | |||||
Operating expenses, environmental expenses and environmental reimbursements: |
|||||||
Petroleum products pipeline system |
114.7 | 128.5 | |||||
Petroleum products terminals |
35.5 | 34.7 | |||||
Ammonia pipeline system |
4.9 | 4.5 | |||||
Eliminations |
| (0.8 | ) | ||||
|
|
|
|
|
|||
Total operating expenses, environmental expenses and environmental reimbursements |
155.1 | 166.9 | |||||
Product purchases |
64.0 | 99.9 | |||||
|
|
|
|
|
|||
Operating margin |
215.4 | 218.4 | |||||
Depreciation and amortization |
35.1 | 36.1 | |||||
Affiliate general and administrative expenses |
43.2 | 56.9 | |||||
|
|
|
|
|
|||
Operating profit |
$ | 137.1 | $ | 125.4 | |||
|
|
|
|
|
|||
Operating Statistics |
|||||||
Petroleum products pipeline system: |
|||||||
Transportation revenue per barrel shipped (cents per barrel) |
94.9 | 96.4 | |||||
Transportation barrels shipped (million barrels) |
234.6 | 237.6 | |||||
Barrel miles (billions) |
71.0 | 70.5 | |||||
Petroleum products terminals: |
|||||||
Marine terminal facilities: |
|||||||
Average storage capacity utilized per month (barrels in millions) |
16.2 | 15.2 | |||||
Throughput (barrels in millions) |
20.5 | 22.2 | |||||
Inland terminals: |
|||||||
Throughput (barrels in millions) |
57.3 | 61.2 | |||||
Ammonia pipeline system: |
|||||||
Volume shipped (tons in thousands) |
712 | 614 |
34
Transportation and terminals revenues for the year ended December 31, 2003 were $372.9 million compared to $363.7 million for the year ended December 31, 2002, an increase of $9.2 million, or 3%. This increase was a result of:
| an increase in petroleum products pipeline system revenues of $8.9 million, or 3%, primarily attributable to a higher weighted-average tariff and increased volumes during the current period. The higher transportation rates per barrel principally resulted from tariff increases during July 2002 and April 2003. Tariff adjustments generally occur during July of each year, as allowed by the FERC. However, the April 2003 increase was allowed by the FERC due to a change to the mid-year FERC-defined tariff calculation. The incremental volume resulted from the short-term refinery production decreases in the mid-continent region of the U.S. These production decreases resulted in substitute volumes from alternative sources moving through our pipeline system. Further, increased revenues from higher data service fees as well as greater capacity lease utilization and other ancillary revenues benefited the current year; |
| an increase in petroleum products terminals revenues of $0.8 million, or 1%, primarily due to increased throughput at our inland terminals as volumes of a former affiliate were more than replaced with higher volumes from third-party customers. Utilization at the Gulf Coast marine facilities was lower between the two periods due to the termination of a former affiliates storage agreement at our Galena Park, Texas facility during the first quarter of 2003. Increased revenues from the $3.0 million settlement we received were more than offset by the resulting reduced storage utilization; and |
| a decrease in ammonia pipeline system revenues of $0.5 million, or 4%, primarily due to significantly reduced transportation volumes during the first quarter of 2003 resulting from extremely high prices for natural gas, the primary component in the production of ammonia. Partially offsetting this volume decline was a higher weighted-average tariff in 2003. |
Operating expenses, environmental expenses and environmental reimbursements combined were $166.9 million for the year ended December 31, 2003 compared to $155.1 million for the year ended December 31, 2002, an increase of $11.8 million, or 8%. Of this increase, $3.4 million was associated with the affiliate paid-time off benefits liability associated with operations employees and was recorded in conjunction with the change in ownership of our general partner. By business segment, this increase was the result of:
| an increase in petroleum products pipeline system expenses of $13.8 million, or 12%, in part due to a $2.6 million affiliate paid-time off benefits accrual. Operating expenses further increased due to the retirement of assets and increased costs for tank maintenance and pipeline testing associated with the ongoing implementation of our system integrity program. Increased power costs resulting from higher transportation volumes and power rates as well as higher ad valorem taxes also resulted in greater costs during 2003; |
| a decrease in petroleum products terminals expenses of $0.8 million, or 2%, primarily due to reduced maintenance expenses resulting from efficiency projects that lowered contract labor and repair costs. Timing of tank inspection and cleaning further resulted in reduced maintenance expenses during 2003. These positive variances were partially offset by a charge associated with the retirement of an asset, a $0.8 million affiliate paid-time off benefits accrual and increased ad valorem taxes; and |
| a decrease in ammonia pipeline system expenses of $0.4 million, or 8%, primarily due to the purchase in 2002 of right-of-way easements that have historically been leased. |
Revenues from product sales were $112.3 million for the year ended December 31, 2003, while product purchases were $99.9 million, resulting in a net margin of $12.4 million in 2003. The 2003 net margin represents an increase of $5.8 million compared to a net margin in 2002 of $6.6 million resulting from product sales for the year ended December 31, 2002 of $70.6 million and product purchases of $64.0 million. The increase in 2003 primarily reflects the margin results from our acquisition of the petroleum products management operation during July 2003. From April 2002 through June 2003, we provided services related to this operation for an affiliate of Williams for an annual fee rather than generating a commodity margin.
35
Depreciation and amortization expense for the year ended December 31, 2003 was $36.1 million, representing a $1.0 million increase from 2002 at $35.1 million due to the additional depreciation associated with acquisitions and capital improvements.
G&A expenses for the year ended December 31, 2003 were $56.9 million compared to $43.2 million for the year ended December 31, 2002, an increase of $13.7 million, or 32%.
| $7.4 million of this increase was associated with one-time costs resulting from the change in ownership of our general partner during 2003 as follows: |
| $3.7 million was associated with the separation of our G&A functions from Williams, which primarily included the creation of our information technology systems and benefits programs; |
| $2.1 million was related to recording an affiliate paid-time off benefits liability associated with G&A employees; and |
| $1.6 million was associated with the early vesting of units granted under our 2001 and 2002 equity-based incentive compensation plan resulting from the change in control of our general partner. |
| $5.9 million was associated with G&A costs in excess of the G&A cap that will be reimbursed by MMH. As described above in Significant Events , as a result of the change in our organizational structure we are now able to clearly identify all G&A costs required to support ourselves and total G&A costs, including those costs above the cap amount that will be reimbursed by MMH, are recorded as our expense. Under the previous structure, we were unable to identify specific costs required to support our operations; consequently, we recorded as expense only the G&A costs under the cap, which reflected our actual cash cost. The actual cash G&A costs we incur will continue to be limited to the G&A cap and the amount of costs above the cap will be recorded as a capital contribution by our general partner. |
Net interest expense for the year ended December 31, 2003 was $34.5 million compared to $21.8 million for the year ended December 31, 2002. The increase in interest expense was primarily related to the replacement during the fourth quarter of 2002 of short-term debt financing associated with the acquisition of our petroleum products pipeline system with long-term debt at higher interest rates. The weighted-average interest rate on our borrowings increased from 4.3% in 2002 to 6.3% in 2003 with the average debt outstanding increasing from $463.9 million in 2002 to $570.0 million in 2003.
Debt placement fee amortization declined from $9.9 million in 2002 to $2.8 million in 2003. During the 2002 period, the short-term debt associated with our acquisition of the petroleum products pipeline system was outstanding with related debt costs amortized over the 7-month period that the debt was outstanding. Our subsequent long-term debt financing costs are amortized over the 5-year life of the notes.
We do not pay income taxes because we are a partnership. However, earnings from the petroleum products pipeline system were subject to income taxes prior to our acquisition of it in April 2002. Taxes on these earnings were at income tax rates of 37% for the year ended December 31, 2002, based on the effective income tax rate for Williams as a result of Williams tax-sharing arrangement with its subsidiaries. The effective income tax rate exceeds the U.S. federal statutory income tax rate primarily due to state income taxes.
Net income for the year ended December 31, 2003 was $88.2 million compared to $99.2 million for the year ended December 31, 2002, a decrease of $11.0 million, or 11%, primarily due to $10.8 million of one-time costs associated with the 2003 change in ownership of our general partner, of which $3.4 million was operating expense and $7.4 was G&A expense. Our net income further declined due to an additional $5.9 million of reimbursable G&A costs. Our operating margin increased by $3.0 million over the prior year despite the $3.4 million of one-time operating expense items, largely as a result of increased transportation volumes and rates on our petroleum products pipeline system, increased product margin associated with the purchase of our petroleum products management operation in July 2003 and reduced operating expenses associated with the petroleum products terminals. Depreciation and net interest expense increased by $1.0 million and $12.7 million,
36
respectively, while debt placement fee amortization expense decreased $7.1 million. Other income declined $2.0 million primarily due to a gain on the sale of assets during 2002. Income taxes decreased $8.3 million due to our partnership structure.
Year Ended December 31, 2001 Compared to Year Ended December 31, 2002
Year Ended December 31, |
||||||
2001
|
2002
|
|||||
Financial Highlights (in millions) |
||||||
Revenues: |
||||||
Transportation and terminals revenue: |
||||||
Petroleum products pipeline system |
$ | 254.9 | $ | 272.5 | ||
Petroleum products terminals |
70.0 | 78.1 | ||||
Ammonia pipeline system |
14.5 | 13.1 | ||||
|
|
|
|
|||
Total transportation and terminals revenue |
339.4 | 363.7 | ||||
Product sales |
108.2 | 70.6 | ||||
Affiliate management fees |
1.0 | 0.2 | ||||
|
|
|
|
|||
Total revenues |
448.6 | 434.5 | ||||
Operating expenses, environmental expenses and environmental reimbursements: |
||||||
Petroleum products pipeline system |
123.6 | 114.7 | ||||
Petroleum products terminals |
33.3 | 35.5 | ||||
Ammonia pipeline system |
4.0 | 4.9 | ||||
|
|
|
|
|||
Total operating expenses, environmental expenses and environmental reimbursements. |
160.9 | 155.1 | ||||
Product purchases |
95.3 | 64.0 | ||||
|
|
|
|
|||
Operating margin |
192.4 | 215.4 | ||||
Depreciation and amortization |
35.8 | 35.1 | ||||
Affiliate general and administrative expense |
47.3 | 43.2 | ||||
|
|
|
|
|||
Operating profit |
$ | 109.3 | $ | 137.1 | ||
|
|
|
|
|||
Operating Statistics |
||||||
Petroleum products pipeline system: |
||||||
Transportation revenue per barrel shipped (cents per barrel) |
90.8 | 94.9 | ||||
Transportation barrels shipped (million barrels) |
236.1 | 234.6 | ||||
Barrel miles (billions) |
70.5 | 71.0 | ||||
Petroleum products terminals: |
||||||
Marine terminal facilities: |
||||||
Average storage capacity utilized per month (barrels in millions) |
15.7 | 16.2 | ||||
Throughput (barrels in millions) |
11.5 | 20.5 | ||||
Inland terminals: |
||||||
Throughput (barrels in millions) |
56.7 | 57.3 | ||||
Ammonia pipeline system: |
||||||
Volume shipped (tons in thousands) |
763 | 712 |
Transportation and terminals revenues for the year ended December 31, 2002 were $363.7 million compared to $339.4 million for the year ended December 31, 2001, an increase of $24.3 million, or 7%. This increase was the result of:
|
an increase in petroleum products pipeline system revenues of $17.6 million, or 7%. Transportation revenues increased between periods due to higher weighted-average tariffs that more than offset slightly lower shipments. The tariffs were higher due to a mid-year rate increase and our customers transporting |
37
products longer distances. These longer hauls resulted primarily from supply shifts within our pipeline system during the latter part of 2002 caused by temporary reductions of refinery production on our system. Further, increased rates for data services as well as higher ethanol loading and storage volumes resulted in additional revenue; |
| an increase in petroleum products terminals revenues of $8.1 million, or 12%, primarily due to the acquisitions of our Gibson marine terminal facility in October 2001 and two Little Rock inland terminals in June 2001. An improved marketing environment resulted in higher utilization and rates at our Gulf Coast facilities, further increasing revenues during 2002; and |
| a decrease in ammonia pipeline system revenues of $1.4 million, or 10%, primarily due to a throughput deficiency billing in the prior year that resulted from a shippers inability to meet its minimum annual throughput commitment for the contract year ended June 2001. In addition, revenue also declined due to significantly reduced volumes from one of our shippers following its filing for Chapter 11 bankruptcy during May 2002. Partially offsetting these decreases was a higher weighted-average tariff in 2002. |
Operating expenses, environmental expenses and environmental reimbursements combined were $155.1 million for the year ended December 31, 2002, compared to $160.9 million for the year ended December 31, 2001, a decrease of $5.8 million, or 4%. This decrease was the result of:
| a decrease in petroleum products pipeline system expenses of $8.9 million, or 7%, primarily due to lower environmental and maintenance expenses and reduced power costs. Environmental costs were lower due to the indemnification from an affiliate of Williams for environmental issues resulting from operations prior to our ownership of the pipeline. Maintenance expenses declined due to improved cost controls as a result of the implementation of improved operating practices. Reduced power costs resulted from lower volumes transported coupled with reduced power rates. Partially offsetting these reductions was an increase in pipeline lease expenses, which represent tariffs paid on connecting pipelines to move a customers product to its ultimate destination; |
| an increase in petroleum products terminals expenses of $2.2 million, or 7%, primarily due to the addition of the Gibson marine facility and the Little Rock inland terminals and increased maintenance expenses resulting from timing of tank cleaning and inspections at the inland terminals; and |
| an increase in ammonia pipeline system expenses of $0.9 million, or 23%, primarily due to the purchase in the current year of right-of-way easements that have historically been leased and higher property taxes. |
Revenues from product sales were $70.6 million for the year ended December 31, 2002, while product purchases were $64.0 million, resulting in a net margin of $6.6 million in 2002. The 2002 net margin represents a decrease of $6.3 million compared to a net margin in 2001 of $12.9 million resulting from product sales for the year ended December 31, 2001 of $108.2 million and product purchases of $95.3 million. The margin decline in 2002 reflects our agreement with an affiliate of Williams to provide blending services for them for an annual fee rather than generating a commodity margin in relation to this activity from April 2002 through December 2002.
Affiliate management fee revenues for the year ended December 31, 2002 were $0.2 million compared to $1.0 million for the year ended December 31, 2001. Historically, the petroleum products pipeline system received a fee to manage an affiliate pipeline.
Depreciation and amortization expense for the year ended December 31, 2002 was $35.1 million, representing a $0.7 million decrease from 2001 at $35.8 million. Additional depreciation associated with acquisitions and capital improvements was more than offset by the elimination of depreciation associated with assets that previously were a part of Magellan Pipeline but were excluded from the assets transferred to us when we acquired the petroleum products pipeline system.
G&A expenses for the year ended December 31, 2002 were $43.2 million compared to $47.3 million for the year ended December 31, 2001, a decrease of $4.1 million, or 9%. Prior to our acquisition of the petroleum
38
products pipeline system, this operating unit was allocated G&A costs from Williams based on a multi-factor formula. Following the acquisition, G&A expenses that we paid to Williams for this pipeline system were subject to an expense limitation, which resulted in a lower G&A costs to us. Incentive compensation costs associated with our long-term incentive plan were specifically excluded from the expense limitation and were $3.7 million during 2002 and $2.0 million during 2001. The 2002 incentive compensation costs included $2.1 million associated with the early vesting of the restricted units issued to key employees at the time of our initial public offering. The early vesting was triggered as a result of meeting targets for our growth in cash distributions paid to unitholders.
Net interest expense for the year ended December 31, 2002 was $21.8 million compared to $12.1 million for the year ended December 31, 2001. The increase in interest expense was primarily related to the debt financing of the petroleum products pipeline system. Although the weighted-average interest rates decreased from 5.0% in 2001 to 4.3% in 2002, the weighted-average debt outstanding increased from $113.3 million in 2001 to $463.9 million in 2002.
We do not pay income taxes because we are a partnership. However, earnings from the petroleum products pipeline system were subject to income taxes prior to our acquisition of it in April 2002, and our pre-initial public offering earnings in 2001 were also taxable. Taxes on these earnings were at income tax rates of 37% and 39% for the year ended December 31, 2002 and 2001, respectively, based on the effective income tax rate for Williams as a result of Williams tax-sharing arrangement with its subsidiaries. The effective income tax rate exceeds the U.S. federal statutory income tax rate primarily due to state income taxes.
Net income for the year ended December 31, 2002 was $99.2 million compared to $67.9 million for the year ended December 31, 2001, an increase of $31.3 million, or 46%. The operating margin increased by $23.0 million during the period, largely as a result of increased revenues and reduced operating expenses including environmental expenses net of reimbursements for the petroleum products pipeline system, earnings from the acquisitions of the Little Rock and Gibson terminal facilities and increased utilization and rates at our Gulf Coast marine facilities. Depreciation expense and G&A expenses decreased by $0.7 million and $4.1 million, respectively, while net interest expense increased by $9.7 million. Debt placement fee amortization expense increased $9.7 million primarily due to costs from debt financing associated with the petroleum products pipeline system acquisition. Other income increased $1.7 million primarily due to a gain on the sale of assets during 2002 and an impairment charge recorded during 2001 related to the inactive refinery site at Augusta, Kansas, the assets and liabilities of which were not transferred to us as part of our acquisition of the petroleum products pipeline system. Income taxes decreased $21.2 million due to our partnership structure.
Liquidity and Capital Resources
Cash Flows and Capital Expenditures
During 2003, net cash provided by operating activities exceeded distributions paid and maintenance capital requirements by $32.6 million. Our cash distributions exceeded the minimum quarterly distribution of $0.525 per unit by $38.2 million.
Net cash provided by operating activities was $144.0 million for the year ended December 31, 2003, $161.0 million for 2002 and $135.3 million for 2001.
| The $17.0 million decrease from 2002 to 2003 was primarily attributable to: |
| reduced net income of $11.0 million principally resulting from the one-time costs related to the 2003 change in control of our general partner that impacted the current year; |
| an increase in inventory of $12.1 million during 2003 resulting from our July 2003 purchase of a petroleum products management operation. The corresponding increase in accrued product purchases of $8.5 million partially offset the inventory change; and |
39
| non-cash one-time expenses associated with the change of control of our general partner in 2003 were generally offset by changes in our affiliate assets and liabilities. |
| The $25.7 million increase in cash from operating activities from 2001 to 2002 was primarily attributable to an increase in net income of $31.3 million and changes in operating assets and liabilities. Changes in operating assets and liabilities reduced net cash from operating activities by $7.2 million and were principally attributable to: |
| an increase in accounts receivable and other accounts receivable of $15.4 million. As part of our acquisition of the petroleum products pipeline system in April 2002, Williams retained $15.0 million of receivables resulting in a significant increase in receivables during 2002 as the receivables retained by Williams were replaced in the ordinary course of business; |
| a reduction in inventory of $18.3 million due to the elimination of inventories associated with the petroleum products management operation retained by Williams at the time of our acquisition of the petroleum products pipeline system; and |
| net affiliate assets and liabilities increased $17.6 million. However, $5.0 million of the increase was offset by related increases in environmental liabilities indemnified by affiliates. The remaining increase of $12.6 million was due primarily to establishing affiliate receivables for environmental liabilities indemnified at the time of our acquisition of the petroleum products pipeline system. |
Net cash used by investing activities for the years ended December 31, 2001, 2002 and 2003 was $87.5 million, $727.0 million and $45.9 million, respectively. During 2003, we acquired our petroleum products management operation. During 2002, we acquired our petroleum products pipeline system and the Aux Sable natural gas liquids pipeline. During 2001, we acquired our two Little Rock inland terminals and the Gibson marine facility. We also invested capital to maintain our existing assets. Total maintenance capital spending before reimbursements was $24.4 million, $26.4 million and $20.9 million in 2001, 2002 and 2003, respectively. Please see Capital Requirements below for further discussion of capital expenditures as well as maintenance capital amounts net of reimbursements.
Net cash provided (used) by financing activities for the years ended December 31, 2001, 2002 and 2003 was $(34.0) million, $627.3 million and $(61.8) million, respectively. Cash was used during 2003 primarily to pay cash distributions to our unitholders. Cash provided during 2002 principally included the debt and equity funding that were completed in conjunction with our acquisition of the petroleum products pipeline system. Cash was used in 2001 to repay affiliate notes associated with the assets held at the time of our initial public offering assets as well as payments made by our petroleum products pipeline system to decrease its affiliate note balance, partially offset by proceeds from debt borrowings and equity issued in our initial public offering and subsequent debt borrowings for acquisitions.
During 2003, we paid $90.5 million in cash distributions to our unitholders. The quarterly distribution amount associated with the fourth quarter of 2003 was $0.83 cents per unit. If we continue to pay cash distributions at this current level and the number of outstanding units remains the same, total cash distributions of $103.2 million will be paid to our unitholders annually. Of this amount, $12.3 million, or 12%, is related to our general partners 2% ownership interest and incentive distribution rights.
Capital Requirements
The transportation, storage and distribution business requires continual investment to upgrade or enhance existing operations and to ensure compliance with safety and environmental regulations. The capital requirements of our businesses consist primarily of:
| maintenance capital expenditures, such as those required to maintain equipment reliability and safety and to address environmental regulations; and |
| payout capital expenditures to acquire additional complementary assets to grow our business and to expand or upgrade our existing facilities, such as projects that increase storage or throughput volumes or develop pipeline connections to new supply sources. |
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Williams agreed to reimburse us for maintenance capital expenditures incurred in 2001 and 2002 in excess of $4.9 million per year related to the assets held at the time of our initial public offering. This reimbursement obligation was subject to a maximum combined reimbursement for both years of $15.0 million. During 2001 and 2002, we recorded reimbursements from Williams associated with these assets of $3.9 million and $11.0 million, respectively.
In connection with our acquisition of Magellan Pipeline, Williams agreed to reimburse us for maintenance capital expenditures incurred in 2002, 2003 and 2004 in excess of $19.0 million per year related to this pipeline system, subject to a maximum combined reimbursement for all years of $15.0 million. Our maintenance capital expenditures related to the petroleum products pipeline system for 2002 and 2003 were less than $19.0 million per year and we expect that they will be less than $19.0 million in 2004. Therefore, we do not anticipate reimbursement by Williams associated with this agreement.
During 2003, our maintenance capital spending net of environmental reimbursements was $12.2 million. Reimbursable environmental projects were $3.6 million during 2003. Further, we spent an additional $5.0 million of capital associated with our separation from Williams, or $3.4 million net of reimbursements. We expect to incur maintenance capital expenditures for 2004 for all of our businesses of approximately $19.0 million, net of reimbursable environmental projects.
In addition to maintenance capital expenditures, we also incur payout capital expenditures at our existing facilities for expansion and upgrade opportunities. During 2003, we spent $29.0 million of payout capital, including acquisitions. Based on projects currently in process, we plan to spend approximately $16.0 million of payout capital in 2004 on organic growth projects. This amount does not include capital expenditures made in connection with future acquisitions. We expect to fund our payout capital expenditures, including any acquisitions, from:
| cash provided by operations; |
| borrowings under the revolving credit facility discussed below and other borrowings; and |
| the issuance of additional common units. |
If capital markets do not permit us to issue additional debt and equity, our business may be adversely affected and we may not be able to acquire additional assets and businesses.
Liquidity
Magellan Pipeline (formerly Williams Pipe Line) Senior Secured Notes. In connection with the long-term financing of our acquisition of the petroleum products pipeline system, we and our subsidiary, Magellan Pipeline, entered into a note purchase agreement on October 1, 2002. We made two borrowings under this agreement. The first borrowing for $420.0 million in November 2002 was used to repay a short-term loan and related debt placement fees. The second borrowing for $60.0 million in December 2002 was used primarily to repay the outstanding acquisition sub-facility of the OLP term loan and credit facility described below.
The borrowings included Series A and Series B notes. The maturity date of these notes is October 7, 2007, with scheduled prepayments equal to 5% of the outstanding balance due on both October 7, 2005 and October 7, 2006. The debt is secured by our membership interests in and the assets of Magellan Pipeline. Payment of interest and principal is guaranteed by the Partnership.
The Series A notes include $178.0 million of borrowings that incur interest based on the six-month Eurodollar rate plus 4.3%. The Series B notes include $302.0 million of borrowings that incur interest at a weighted-average fixed rate of 7.8%.
In the event of a change in control of our general partner, each holder of the notes has 30 days within which it could exercise a right to put its notes to Magellan Pipeline unless the new owner of our general partner has: (i)
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a net worth of at least $500.0 million and (ii) long-term unsecured debt rated as investment grade by both Moodys Investor Service Inc. and Standard & Poors Rating Service. For these notes, a change in control is defined as the acquisition by any person of 50% or more of the interest in our general partner. The holders of these notes waived their put rights with respect to the change in control of our general partner.
The note purchase agreement contains various operational and financial covenants that restrict our ability to borrow additional funds. The most significant of these is a leverage ratio that limits our debt-to-EBITDA ratio, as defined in the note purchase agreement, to 4.5 to 1.0. We are in compliance with all of these covenants.
Magellan Midstream Partners term loan and revolving credit facility. On August 6, 2003, we entered into a new credit agreement with a syndicate of banks. This facility, which replaced the OLP term loan and revolving credit facility discussed below, is initially comprised of a $90.0 million term loan and an $85.0 million revolving credit facility. Up to $10.0 million of the revolving credit commitments are available for letters of credit. As of December 31, 2003, the $90.0 million term loan was outstanding with $0.2 million of the $85.0 million revolving credit facility utilized for a letter of credit and the balance available for future borrowings.
The term loan portion of this borrowing was assigned a credit rating by the two largest rating agencies in the United States. Standard & Poors Rating Service rated us BBB, and Moodys Investor Service Inc. rated us Ba1.
Indebtedness under the term loan initially incurred interest at the Eurodollar rate plus a margin of 2.4%, while indebtedness under the revolving credit facility incurred interest at the Eurodollar rate plus a margin of 1.8%. However, effective December 22, 2003, we amended the credit facility resulting in a lower margin spread. The new rate is the Eurodollar rate plus 2.0%. We also incur a commitment fee on the un-drawn portion of the revolving credit facility. The facility provides for the establishment of up to $100.0 million in additional term loans, which would bear interest at a rate agreed to at the time of borrowing. The term loan matures on August 6, 2008, with scheduled prepayments equal to 1.0% of the initial term loan balance due on August 6 of each year until maturity. The revolving credit facility terminates on August 6, 2007.
Obligations under the facility are secured by our partnership interests in the entities which hold our petroleum products terminals and ammonia pipeline system. Those entities are also guarantors of our obligations under the facility. Magellan Pipeline is a separate operating subsidiary of ours and is not a guarantor under this facility.
Under the terms of this facility, a change in control will result in an event of default, in which case the maturity date of the obligations under the facility may be accelerated. For this facility, a change in control is defined in a variety of ways, each of which involve the current owners of MMH no longer maintaining majority control of the management of us, MMH or our general partner.
The note purchase agreement contains various operational and financial covenants that restrict our ability to borrow additional funds. The most significant of these is a leverage ratio that limits our debt-to-EBITDA ratio, as defined in the credit agreement, to 4.5 to 1.0. We are in compliance with all of these covenants.
OLP term loan and revolving credit facility . Subsequent to the closing of our initial public offering on February 9, 2001, we relied on cash generated from operations as our primary source of funding, except for payout capital expenditures. Additional funding requirements were met by a $175.0 million credit facility of Williams OLP, L.P. (which was renamed Magellan OLP, L.P. effective September 1, 2003), parent to our petroleum products terminals and ammonia pipeline system. This credit facility was comprised of a $90.0 million term loan and an $85.0 million revolving credit facility.
This facility, which was due to mature on February 5, 2004, had the $90.0 million term loan outstanding when it was repaid in full on August 6, 2003 with the proceeds from borrowings under the term loan of the credit facility described above.
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Debt-to-Total Capitalization The ratio of debt-to-total capitalization is a measure frequently used by the financial community to assess the reasonableness of a companys debt levels compared to its total capitalization, which is calculated by adding total debt and total partners capital. Based on the figures shown in our balance sheet, debt-to-total capitalization is 53% at December 31, 2003. Because accounting rules required the acquisition of our petroleum products pipeline system to be recorded at historical book value due to the affiliate nature of the transaction, the $474.5 million difference between the purchase price and book value at the time of the acquisition was recorded as a decrease to our general partners capital account, thus lowering our overall partners capital by that amount. If this pipeline system had been acquired from a third party at the identical purchase price, the asset would have been recorded at market value, resulting in a debt-to-total capitalization of 37%. This pro forma debt-to-total capitalization ratio is presented in order to provide our investors with an understanding of what our debt-to-total capitalization position would have been had we made a similar acquisition from a third-party entity. We believe this presentation is important in comparing our debt-to-total capitalization ratio to that of other entities.
Off-Balance Sheet Arrangements
None
Contractual Obligations
The following table summarizes certain contractual obligations as of December 31, 2003 (in millions):
Total
|
< 1 year
|
1-3 years
|
3-5 years
|
> 5 years
|
|||||||||||
Long-term and current debt obligations |
$ | 570.0 | $ | 0.9 | $ | 49.8 | $ | 519.3 | $ | | |||||
Operating lease obligations |
$ | 34.9 | $ | 7.3 | $ | 7.2 | $ | 6.0 | $ | 14.4 | |||||
Purchase commitments: |
|||||||||||||||
Affiliate operating and G&A |
(1) | ||||||||||||||
Capital projects |
$ | 28.2 | $ | 28.2 | $ | | $ | | $ | | |||||
Petroleum product purchases |
$ | 2.5 | $ | 2.5 | $ | | $ | | $ | | |||||
Other |
$ | 4.3 | $ | 1.0 | $ | 1.9 | $ | 1.4 | $ | |
(1) | We have an agreement with MMH, an affiliate entity, for operating and G&A costs associated with our activities. The agreement requires us to pay for actual operating costs incurred by MMH on our behalf and for G&A costs incurred on our behalf up to the expense limitations as imposed by the new Omnibus Agreement. The agreement, which began on June 17, 2003, has a five-year term but has provisions for termination upon 90-day notice by either party. As a result of the termination provision and the agreements requirement to pay only MMHs costs as they are incurred, we are unable to determine the actual amount of this commitment. |
Environmental
Our operations are subject to environmental laws and regulations, adopted by various governmental authorities, in the jurisdictions in which these operations are conducted. We have accrued liabilities for estimated site restoration costs to be incurred in the future at our facilities and properties. Under our accounting policies, liabilities are recorded when site restoration and environmental remediation and cleanup obligations are either known or considered probable and can be reasonably estimated.
Williams, certain of its affiliates and MMH will indemnify us against certain environmental liabilities. Williams has guaranteed the obligations of its affiliates. The terms and limitations of these indemnification agreements are summarized below.
For assets transferred to us from Williams at the time of our initial public offering in February 2001, Williams agreed to indemnify us for up to $15.0 million for environmental liabilities that exceed the amounts
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covered by the indemnities we received from the sellers of those assets. We refer to this indemnity in the table below as the IPO Indemnity. The indemnity applies to environmental liabilities arising from conduct prior to the closing of the initial public offering (February 9, 2001) and discovered within three years of closing of the initial public offering; however, the discovery period has been extended to August 9, 2004.
In connection with our April 2002 acquisition of Magellan Pipeline, which owns our petroleum products pipeline, Williams has agreed to indemnify us for losses and damages related to breaches of representations and warranties, including environmental representations and warranties and the violation or liabilities arising under any environmental laws prior to the acquisition. This indemnity covers losses in excess of $2.0 million up to a maximum of $125.0 million. We refer to this indemnity in the table below as the Magellan Pipeline Indemnity. Claims related to this environmental indemnity must be made prior to April 2008 and must be related to events that occurred prior to April 11, 2002.
In addition to these two agreements, the purchase and sale agreement (June 2003 PSA) entered into in connection with MMHs acquisition of us provides us with two additional indemnities related to environmental liabilities, which we cumulatively refer to as the Acquisition Indemnity in the table below.
First, MMH (the buyer under the June 2003 PSA) assumed Williams obligations to indemnify us for $21.9 million of known environmental liabilities, of which $19.0 million was associated with known liabilities at Magellan Pipeline facilities, $2.7 million was associated with known liabilities at our petroleum products terminal facilities and $0.2 million was associated with known liabilities on the ammonia pipeline system.
Second, in the June 2003 PSA, Williams agreed to indemnify us for certain environmental liabilities arising prior to June 17, 2003 related to all of our facilities to the extent not already indemnified under Williams two preexisting indemnification obligations described above. This additional indemnification includes those liabilities related to our petroleum products terminals and the ammonia pipeline system arising after the initial public offering (February 9, 2001) through June 17, 2004 and those liabilities related to Magellan Pipeline arising after our acquisition of it on April 11, 2002 through June 17, 2003. This indemnification covers environmental as well as other liabilities and is capped at $175.0 million.
A summary of the indemnities we have with Williams, total claims against those indemnities and the amount of those indemnities remaining is provided below.
Maximum
Indemnity Amount |
Claims
Against Indemnity |
Amount of
Indemnity Remaining |
|||||||
IPO Indemnity |
$ | 15.0 | $ | 3.4 | $ | 11.6 | |||
Magellan Pipeline Indemnity |
125.0 | 18.0 | 107.0 | ||||||
Acquisition Indemnity |
175.0 | 0.7 | 174.3 | ||||||
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|
|
|
|
|
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Total |
$ | 315.0 | $ | 22.1 | $ | 292.9 | |||
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Impact of Inflation
Although inflation has slowed in recent years, it is still a factor in the United States economy and may increase the cost to acquire or replace property, plant and equipment and may increase the costs of labor and supplies. To the extent permitted by competition, regulation and our existing agreements, we have and will continue to pass along increased costs to our customers in the form of higher fees.
Critical Accounting Estimates
Goodwill Impairment
In January 2002, we began applying the rules promulgated by Statement of Financial Accounting Standards (SFAS) No. 142, Goodwill and Other Intangibles, relative to accounting for goodwill and other intangible
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assets. Under this standard we no longer amortize goodwill because it is an asset with an indefinite useful life but test it for impairment annually, or more frequently if events or changes in circumstances indicate that the asset might be impaired. The first step of the impairment test is to determine if the fair value of our reporting units exceed their carrying amount. If the fair value of the reporting unit is less than its carrying amount then the goodwill may be impaired. The second step compares the implied fair value of goodwill to its carrying amount. If the carrying amount of goodwill exceeds its implied fair value, an impairment loss is recognized equal to that excess. The implied fair value of goodwill should be calculated in the same manner that goodwill is calculated in a business combination.
Goodwill included in our consolidated balance sheet was $22.1 million at December 31, 2003 and $22.3 million at both December 31, 2002 and 2001. The change in goodwill during 2003 was the result of a purchase price adjustment created by a contingency payment associated with the acquisition of our Little Rock, Arkansas terminal. All of the goodwill and other intangibles recognized by us are associated with the petroleum products terminals segment and were acquired as part of the Gibson, Louisiana and Little Rock, Arkansas terminals acquisitions. We performed our annual testing of goodwill, as required by SFAS No. 142, as of October 1, 2003.
We believe that the accounting estimate related to goodwill impairment is a critical accounting estimate of our petroleum products terminals segment because: (1) significant judgment is exercised during the process of determining the petroleum products terminals segment fair value and (2) because different assumptions could result in material charges to our operating results.
For the 2003 test, fair value of the petroleum products terminals was assessed using two approaches: (1) a discounted future cash flows approach, and (2) an EBITDA multiple approach. The discounted future cash flows model assumed a 9.5% discount rate based on an expected 12% return on equity and a 7% cost of debt and a 50/50 debt-to-equity ratio. Under the EBITDA multiple approach, we applied a multiple of 9 times the adjusted EBITDA of the petroleum products terminals segment to determine fair value. We define EBITDA as income before income taxes plus interest expense (net of interest income), depreciation and amortization expense and debt placement fee amortization. EBITDA multiples are used industry-wide in assessing values for business assets similar to those in our petroleum products terminals segment. The EBITDA of the petroleum products terminals segment was adjusted to exclude a portion of the general and administrative expenses to take into consideration expected synergies.
Under both of the methodologies described above the fair value of the petroleum products terminals segment exceeded the carrying value of the segment. Therefore, we did not recognize an impairment in 2003. In reaching the conclusion above, more confidence was placed on the discounted cash flow model because management believes this approach provides a better assessment of the actual value that a willing buyer and willing seller could agree upon.
The critical factors in the discounted cash flow model are the required rate of return on equity and the cost of debt. A chart showing the implied impairments under various assumed changes in the estimates is provided below (in millions):
Debt / Equity Ratio = 50 / 50
|
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Debt Cost |
7% | 8% | 9% | 10% | 11% | ||||||||||
Equity Cost |
12% | 13% | 14% | 15% | 16% | ||||||||||
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|
|
|
|
|
|
|
|
||||||
Implied Impairment |
$ | | $ | | $ | | $ | | $ | 16.9 | |||||
|
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|
|
Based on the table one can determine that, assuming all other factors remain constant, if debt costs increased from our assumed rate of 7% to 11%, combined with an increase in our assumed required rate of return on equity from 12% to 16%, the assets of the petroleum products terminals segment would be impaired. It is likely that under this scenario the entire $22.1 million of goodwill would be impaired. Because we pay no income taxes, the
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impairment would reduce operating profit and net income by $22.1 million, which represents a 18% decrease in operating profit and a 25% decrease in net income for 2003. Assuming our current distribution levels for an entire year, this impairment would reduce both basic and diluted net income per limited partner unit by approximately $0.72.
Our management has discussed the development and selection of this critical accounting estimate with the Audit Committee of our general partners Board of Directors and the Audit Committee has reviewed this disclosure.
Environmental Liabilities
We estimate the liabilities associated with environmental expenditures based on site-specific project plans for remediation, taking into account prior remediation experience. Experienced remediation project managers evaluate each known case of environmental liability to determine what phases and associated costs can be reasonably estimated and to ensure compliance with all applicable federal and/or state requirements. We believe the accounting estimate relative to environmental remediation costs to be a critical accounting estimate because: (1) estimated expenditures, which will generally be made over the next 1 to 10 years, are subject to cost fluctuations and could change materially, (2) unanticipated third-party liabilities may arise, and (3) changes in federal, state and local environmental regulations could also significantly increase the amount of the liability. The estimate for environmental liabilities is a critical accounting estimate for all three of our operating segments.
A defined process for project reviews is integrated into our System Integrity Plan. Specifically, our remediation project managers meet once a year with accounting, operations, legal and other personnel to evaluate, in detail, the known environmental liabilities associated with each of our operating units. The purpose of the annual project review is to assess all aspects of each project, evaluating what will be required to achieve regulatory compliance, estimating the costs associated with executing the regulatory phases that can be reasonably estimated and estimating the timing for those expenditures. During the site-specific evaluations, all known information is utilized in conjunction with professional judgment and experience to determine the appropriate approach to remediation and to assess liabilities. The general remediation process to achieve regulatory compliance consists of: site investigation/delineation, site remediation, and long-term monitoring. Each of these phases can, and often does, include unknown variables that complicate the task of evaluating the estimated costs to complete.
Each quarter, we reevaluate our environmental estimates taking into account any new incidents that have occurred since the last annual meeting of the remediation project managers, any changes in the site situation and additional findings and/or changes in federal or state regulations. The estimated environmental liability accruals are adjusted as necessary.
At December 31, 2001, our environmental liabilities were $16.9 million. During 2002, we spent $6.4 million for environmental remediation but also made significant accrual adjustments to six environmental projects. These adjustments resulted in an increase in our environmental liabilities of $10.5 million. Accruals for all other projects, including five new projects identified during the year, were $1.3 million, resulting in the December 31, 2002 environmental liability of $22.3 million. The $10.5 million increase in our environmental liabilities during 2002 was the result of additional work and reassessments at the six previously mentioned terminals on our petroleum products pipeline system. Williams indemnified these liabilities; consequently, there was no impact to our operating profit or net income from these accrual increases. During 2003, we spent $9.4 million for environmental remediation. During 2003, we experienced a leak on our petroleum products pipeline near Kansas City, Kansas, which resulted in an increase to our environmental liabilities of $4.8 million. Insurance proceeds are expected to cover $3.1 million of these costs and the remaining $1.7 million was charged against our income in 2003. The recommendations that came from the annual and quarterly review process during 2003 resulted in our increasing the environmental liabilities associated with over 100 separate remediation sites by approximately $9.1 million. These accrual increases did not have a significant impact our operating profit or net income because
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Williams indemnified most of the increases. Our environmental liabilities at December 31, 2003 were $26.8 million.
Based on the assumption of an additional 15% increase in our estimated environmental liabilities and further assuming that none of those additional liabilities would be indemnified, our expenses would increase by $4.0 million. Because we pay no income taxes, operating profit and net income would decrease by the same amount, which represents a decrease of 3% of our operating profit and 5% of our net income for 2003. Assuming our current distribution levels for the entire year, this additional expense would reduce both basic and diluted net income per limited partner unit by approximately $0.13. Such a change would result in less than a 1% increase in both our total liabilities and total equity. The impact of such an increase in environmental costs would likely not have affected our liquidity because, even with the increased costs, we would still comply with the covenants of our long-term debt agreements as discussed above under Liquidity and Capital ResourcesLiquidity.
Our management has discussed the development and selection of this critical accounting estimate with the Audit Committee of our general partners Board of Directors and the Audit Committee has reviewed this disclosure.
Environmental Receivables
As described above, we have agreements which indemnify us against certain environmental liabilities, the most significant of which are with Williams and MMH. When a site-specific environmental liability is recognized, a determination is made as to whether or not the liability is indemnified. If so, a receivable for the amount of the indemnified liability is also recognized. We do not require payment from the indemnifying party until actual remediation work is performed on the site. At that time, the indemnifying party is billed for the remediation work and the cash received is used to reduce the environmental receivable. Changes in our environmental receivables since December 31, 2001 are as follows (in millions):
Indemnifying Party |
Balance
12/31/01 |
2002
|
Balance
12/31/02 |
2003
|
Balance
12/31/03 |
||||||||||||||||||||||
Accruals
|
Payments
|
Accruals
|
Transfers
|
Payments
|
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Williams |
$ | 3.2 | $ | 24.3 | $ | (4.5 | ) | $ | 23.0 | $ | 9.5 | $ | (21.9 | ) | $ | (2.8 | ) | $ | 7.8 | ||||||||
MMH |
| | | | | 21.9 | (2.9 | ) | 19.0 | ||||||||||||||||||
Other |
| | | | 3.1 | | | 3.1 | |||||||||||||||||||
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Totals |
$ | 3.2 | $ | 24.3 | $ | (4.5 | ) | $ | 23.0 | $ | 12.6 | $ | | $ | (5.7 | ) | $ | 29.9 | |||||||||
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We believe that the accounting estimate related to affiliate receivables is a critical accounting estimate because: (1) its carrying amount is subject to many of the same estimates as those used to develop the underlying environmental liabilities (see Critical Accounting EstimatesEnvironmental Liabilities above); and (2) given Williams unfavorable financial status in recent years, it requires our managements estimations involving Williams ability to pay and our ability to collect the receivable amount.
Should Williams be unable to perform on its existing obligations, we may be unable to collect part or all of this environmental account receivable. In preparing our financial statements for the year ended December 31, 2003, managements assumptions were that we would be able to collect the full amount of this receivable from Williams.
Any change in our estimate of the amount of the receivable we believe we can ultimately collect from Williams would require us to take a charge against income because we have not recorded any allowance for doubtful accounts associated with this receivable. If none of the receivable were collectable, we would have a charge against income of $7.8 million, which represents 6% of our operating profit and 9% of our net income for 2003. Assuming our current distribution levels for the entire year, this additional expense would reduce both basic and diluted net income per limited partner unit by approximately $0.25. The impact of such a charge would
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likely not have affected our liquidity because, even with the increased expense, we would still comply with the covenants of our long-term debt agreements as discussed above under Liquidity and Capital ResourcesLiquidity.
Our management has discussed the development and selection of this critical accounting estimate with the Audit Committee of our general partners Board of Directors and the Audit Committee has reviewed this disclosure.
New Accounting Pronouncements
In December 2003, the Financial Accounting Standards Board (FASB) issued a revision to Statement of Financial Accounting Standards (SFAS) No. 132 Employers Disclosures about Pensions and Other Postretirement Benefits. This revision requires that companies provide more details about their plan assets, benefit obligations, cash flows, benefit costs and other relevant information. A description of investment policies and strategies and target allocation percentages, or target ranges, for these asset categories also are required in financial statements. Cash flows will include projections of future benefit payments and an estimate of contributions to be made in the next year to fund pension and other postretirement benefit plans. In addition to expanded annual disclosures, the FASB is requiring companies to report the various elements of pension and other postretirement benefit costs on a quarterly basis. The guidance is effective for fiscal years ending after December 15, 2003, and for quarters beginning after December 15, 2003.
In May 2003, the FASB issued SFAS No. 150 Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity. This Statement is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. This Statement establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify a financial instrument that is within its scope as a liability (or an asset in some circumstances). Many of those instruments were previously classified as equity. This statement had no impact on our financial position, results of operations or cash flows upon its initial adoption.
In April 2003, the FASB issued SFAS No. 149 Amendment of Statement 133 on Derivative Instruments and Hedging Activities. This Statement is effective for contracts entered into or modified after June 30, 2003, and for hedging relationships designated after June 30, 2003. In addition all provisions of this Statement must be applied prospectively. This Statement amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts (collectively referred to as derivatives) and for hedging activities under FASB Statement No. 133, Accounting for Derivative Instruments and Hedging Activities. The initial application of this Statement did not have a material impact on our financial position, results of operations or cash flows.
In December 2002, the FASB issued SFAS No. 148 Accounting for Stock-Based CompensationTransition and Disclosurean amendment of FASB Statement No. 123. This Statement amends FASB Statement No. 123, Accounting for Stock-Based Compensation, to provide alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation. In addition, this Statement amends the disclosure requirements of Statement 123 to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. This Statement improves the prominence and clarity of the pro forma disclosures required by Statement 123 by prescribing a specific tabular format and by requiring disclosure in the Summary of Significant Accounting Policies or its equivalent. The standard is effective for fiscal periods ending after December 15, 2002. Although we account for stock-based compensation for Williams employees assigned to the Partnership under provisions of Accounting Principles Board Opinion No. 25, the structure of the awards is such that we fully recognize compensation expense associated with unit awards. Hence, had we adopted this standard, it would not have had a material impact on our operations or financial position.
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In June 2002, the FASB issued SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities. This Statement addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies Emerging Issues Task Force (EITF) Issue No. 94-3, Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring). The provisions of this Statement are effective for exit or disposal activities that are initiated after December 31, 2002, with early application encouraged. We adopted this standard in January 2003 and it did not have a material impact on our results of operations or financial position.
In the second quarter of 2002, the FASB issued SFAS No. 145, Rescission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement 13 and Technical Corrections. The rescission of SFAS No. 4 Reporting Gains and Losses from Extinguishment of Debt, and SFAS No. 64, Extinguishment of Debt Made to Satisfy Sinking-Fund Requirements, requires that gains or losses from extinguishment of debt only be classified as extraordinary items in the event they meet the criteria in Accounting Principle Board Opinion (APB) No. 30, Reporting the Results of Operations Reporting the Effects of Disposal of a Segment of a Business and Extraordinary, Unusual and Infrequently Occurring Events and Transactions. SFAS No. 44, Accounting for Intangible Assets of Motor Carriers, established accounting requirements for the effects of transition to the Motor Carriers Act of 1980 and is no longer required now that the transitions have been completed. Finally, the amendments to SFAS No. 13 Accounting for Leases are effective for transactions occurring after May 15, 2002. All other provisions of this Statement will be effective for financial statements issued on or after May 15, 2002. We adopted this standard in January 2003, and it did not have a material impact on our results of operations or financial position. However, in subsequent reporting periods, any gains and losses from debt extinguishments will not be accounted for as extraordinary items.
Related Party Transactions
Affiliate revenues historically represented revenues from Williams and its affiliates. Subsequent to Williams sale of its interests in us on June 17, 2003, we no longer have affiliate revenues. Affiliate revenues have declined significantly over the past three years; however, total revenues have increased. Amounts are summarized in the table below (in millions):
2001
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2002
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2003
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Affiliate revenues |
$ | 94.3 | $ | 58.6 | $ | 13.9 | |||
Total revenues |
$ | 448.6 | $ | 434.5 | $ | 485.2 | |||
Affiliate revenues as a percent of total revenue |
21% | 13% | 3% |
We had agreements with Williams Energy Marketing & Trading, LLC (WEM&T) which provided for: (i) the lease of a Carthage, Missouri propane storage cavern and (ii) access and utilization of storage on the Magellan Pipeline system. Magellan Pipeline had entered into pipeline lease agreements and tank storage agreements with Mid-America Pipeline Company (MAPL) and Williams Bio-Energy, LLC (Williams Bio-Energy), respectively. MAPL was an affiliate entity until its sale by Williams in July 2002 and Williams Bio-Energy was an affiliate entity until its sale by Williams in May 2003. The Partnership also had a lease storage contract with Williams Bio-Energy at its Galena Park, Texas marine terminal facility.
We also had an agreement with WEM&T, which provided for storage and other ancillary services at our marine terminal facilities. This agreement was cancelled during the first quarter of 2003 in exchange for a $3.0 million payment to us from WEM&T. Both WEM&T and Williams Refining & Marketing had agreements for the access and utilization of the inland terminals.
In addition, we had an agreement with Williams Petroleum Services, LLC to perform services related to petroleum product asset management activities for an annual fee in 2003 of approximately $4.0 million. In July 2003, we acquired from Williams and its affiliates the rights to these activities.
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We also had affiliate agreements with WEM&T and Williams Refining & Marketing, LLC for the non-exclusive and non-transferable sub-license to use the ATLAS 2000 software system. The rights to this system were contributed to us on June 17, 2003.
The following table reflects revenues from various Williams subsidiaries through June 17, 2003 (in thousands):
Year Ended December 31,
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Williams 100%-Owned Affiliates: |
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Williams Energy Marketing & Trading |
$ | 75,717 | $ | 40,119 | $ | 7,425 | |||
Williams Refining & Marketing |
13,519 | 8,164 | 306 | ||||||
Williams Bio-Energy |
3,448 | 4,842 | 2,366 | ||||||
Midstream Marketing & Risk Management |
| 1,719 | 598 | ||||||
Mid-America Pipeline |
285 | 165 | | ||||||
Williams Petroleum Services, LLC |
| 2,625 | 2,992 | ||||||
Other |
| 749 | | ||||||
Williams Partially-Owned Affiliates: |
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Longhorn Pipeline Partners |
1,301 | 210 | | ||||||
Rio Grande Pipeline |
| | 225 | ||||||
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Total |
$ | 94,270 | $ | 58,593 | $ | 13,912 | |||
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Costs and expenses related to activities between Williams and its affiliates and us after June 17, 2003, have been accounted for as unaffiliated third-party transactions. Transactions between the Partnership and MMH and its affiliates were accounted for as affiliate transactions after June 17, 2003. The following table summarizes costs and expenses from various affiliate companies with us and are reflected in the cost and expenses in the accompanying consolidated statements of income (in thousands):
Year Ended December 31,
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Williams Energy Servicesdirect and directly allocable expenses |
$ | 29,242 | $ | 8,231 | | |||
Williamsallocated general and administrative expenses |
18,123 | 34,951 | 23,880 | |||||
Williamsallocated operating and maintenance expenses |
160,880 | 155,146 | 68,079 | |||||
Williams Energy Marketing & Tradingproduct purchases |
80,959 | 22,268 | 472 | |||||
Mid-America Pipelineoperating and maintenance expenses |
2,730 | 1,318 | | |||||
MMHallocated operating and maintenance expenses |
| | 98,804 | |||||
MMHallocated general and administrative expenses |
| | 32,966 |
In 2001, 2002 and for the period January 1, 2003 through June 17, 2003, Williams allocated both direct and indirect general and administrative expenses to our general partner. Direct expenses allocated by Williams were primarily salaries and benefits of employees and officers associated with the business activities of the affiliate. Indirect expenses include legal, accounting, treasury, engineering, information technology and other corporate services. Williams allocated these expenses to our general partner based on the expense limitation provided for in the omnibus agreement. We reimbursed our general partner and its affiliates for expenses charged to us by our general partner on a monthly basis. As a result, of the sale of Williams ownership interests in us, we entered into a new services agreement with MMH pursuant to which MMH agreed to perform specified services required for our operation. Consequently, our operations and general and administrative functions are now provided by MMH. Our reimbursement of general and administrative costs is subject to the limitations as defined in the new omnibus agreement. In addition, in 2001, 2002 and for the period January 1, 2003 through June 17, 2003, Williams allocated operating and maintenance expenses to the Partnerships general partner. Expenses included
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all costs directly associated with the operations of the Partnerships businesses. From June 17, 2003 through December 31, 2003 operating expenses were allocated to the Partnerships general partner from MMH.
Beginning with the closing date of the initial public offering, our general partner, through provisions included in the omnibus agreement, agreed that for the assets associated with the petroleum products terminals and ammonia pipeline system operations, we would reimburse our general partner for general and administrative costs up to a specified expense limitation. In addition, beginning with the acquisition of Magellan Pipeline, our general partner agreed that for these assets, we would reimburse our general partner for general and administrative costs up to a specified expense limitation.
MAPL and we had an operating agreement whereby MAPL operated the ammonia pipeline system for us for a fee. On July 31, 2002, Williams sold 98% of Mapletree LLC, which owned MAPL, to Enterprise Products Partners L.P. (Enterprise). All transactions between us, MAPL and Enterprise after July 31, 2002 have been recorded as unaffiliated third-party transactions.
Historically, Magellan Pipeline had an agreement with WEM&T to purchase transmix for fractionation and product to settle shortages. For the periods that MAPL was an affiliate of the Partnership, MAPL provided operating and maintenance support, to the ammonia pipeline and leased storage space to Magellan Pipeline.
Williams and certain of its affiliates and MMH have indemnified us against certain environmental costs. Receivables from Williams or its affiliates associated with these environmental costs were $7.8 million and $22.9 million at December 31, 2003 and December 31, 2002, respectively, and are included with accounts receivable amounts presented in the consolidated balance sheets. Receivables from MMH were $19.0 million at December 31, 2003 and are included with the affiliate accounts receivable in the consolidated balance sheets. A description of Williams and MMHs indemnities to us is included in the Environmental section above.
Historically, Williams charged interest expense to its affiliates based on their inter-company debt balances. We also participated in employee benefit plans and long-term incentive plans sponsored by Williams.
Forward-Looking Statements
Certain matters discussed in this Annual Report on Form 10-K include forward-looking statements statements that discuss our expected future results based on current and pending business operations. We make these forward-looking statements in reliance on the safe harbor protections provided under the Private Securities Litigation Reform Act of 1995.
Forward-looking statements can be identified by words such as anticipates, believes, expects, estimates, forecasts, projects and other similar expressions. Although we believe our forward-looking statements are based on reasonable assumptions, statements made regarding future results are subject to numerous assumptions, uncertainties and risks that may cause future results to be materially different from the results stated or implied in this document.
The following are among the important factors that could cause actual results to differ materially from any results projected, forecasted, estimated or budgeted:
| price trends and overall demand for natural gas liquids, refined petroleum products, natural gas, oil and ammonia in the United States; |
| weather patterns materially different than historical trends; |
| development of alternative energy sources; |
| changes in demand for storage in our petroleum products terminals; |
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| changes in supply patterns for our marine terminals due to geopolitical events; |
| changes in our tariff rates implemented by the FERC and the Surface Transportation Board; |
| shut-downs or cutbacks at major refineries, petrochemical plants, ammonia production facilities or other businesses that use or supply our services; |
| changes in throughput on petroleum products pipelines owned and operated by third parties and connected to our petroleum products terminals or petroleum products pipeline system; |
| loss of one or more of our three customers on our ammonia pipeline system; |
| changes in the federal governments policy regarding farm subsidies, which could negatively impact the demand for ammonia and reduce the amount of ammonia transported through our ammonia pipeline system; |
| an increase in the competition our operations encounter; |
| the occurrence of an operational hazard or unforeseen interruption for which we are not adequately insured; |
| our ability to integrate any acquired operations into our existing operations; |
| our ability to successfully identify and close strategic acquisitions and expansion projects and make cost saving changes in operations; |
| changes in general economic conditions in the United States; |
| changes in laws and regulations to which we are subject, including tax and state tax withholding issues, safety, environmental and employment laws and regulations; |
| the cost and effects of legal and administrative claims and proceedings against us or our subsidiaries; |
| the amount of our indebtedness, which could make us vulnerable to general adverse economic and industry conditions, limit our ability to borrow additional funds, place us at competitive disadvantages compared to our competitors that have less debt or have other adverse consequences; |
| the condition of the capital markets and equity markets in the United States; |
| the ability to raise capital in a cost-effective way; |
| the effect of changes in accounting policies; |
| the ability to manage rapid growth; |
| Williams and MMHs ability to perform on their environmental and rights-of-way indemnifications to us; |
| supply disruption; and |
| global and domestic economic repercussions from terrorist activities and the governments response thereto. |
Risks Related to our Business
We may not be able to generate sufficient cash from operations to allow us to pay the minimum quarterly distribution following establishment of cash reserves and payment of fees and expenses, including payments to our general partner.
The amount of cash we can distribute on our common units principally depends upon the cash we generate from our operations. Because the cash we generate from operations will fluctuate from quarter to quarter, we
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may not be able to pay the minimum quarterly distribution for each quarter. Our ability to pay the minimum quarterly distribution each quarter depends primarily on cash flow, including cash flow from financial reserves and working capital borrowings, and not solely on profitability, which is affected by non-cash items. As a result, we may make cash distributions during periods when we record losses and may not make cash distributions during periods when we record net income.
Potential future acquisitions and expansions, if any, may affect our business by substantially increasing the level of our indebtedness and contingent liabilities and increasing our risk of being unable to effectively integrate these new operations.
From time to time, we evaluate and acquire assets and businesses that we believe complement our existing assets and businesses. Acquisitions may require substantial capital or the incurrence of substantial indebtedness. If we consummate any future acquisitions, our capitalization and results of operations may change significantly.
Acquisitions and business expansions involve numerous risks, including difficulties in the assimilation of the assets and operations of the acquired businesses, inefficiencies and difficulties that arise because of unfamiliarity with new assets and the businesses associated with them and new geographic areas and the diversion of managements attention from other business concerns. Further, unexpected costs and challenges may arise whenever businesses with different operations or management are combined, and we may experience unanticipated delays in realizing the benefits of an acquisition. Following an acquisition, we may discover previously unknown liabilities associated with the acquired business for which we have no recourse under applicable indemnification provisions.
Our financial results depend on the demand for the petroleum products that we transport, store and distribute.
Any sustained decrease in demand for petroleum products in the markets served by our pipeline and terminals could result in a significant reduction in the volume of products that we transport in our pipeline, store at our marine terminal facilities and distribute through our inland terminals, and thereby reduce our cash flow and our ability to pay cash distributions. Factors that could lead to a decrease in market demand include:
| an increase in the market price of crude oil that leads to higher refined products prices, which may reduce demand for gasoline and other petroleum products. Market prices for refined petroleum products are subject to wide fluctuation in response to changes in global and regional supply over which we have no control; |
| a recession or other adverse economic condition that results in lower spending by consumers and businesses on transportation fuels such as gasoline, jet fuel and diesel; |
| higher fuel taxes or other governmental or regulatory actions that increase the cost of gasoline; |
| an increase in fuel economy, whether as a result of a shift by consumers to more fuel-efficient vehicles or technological advances by manufacturers; and |
| the increased use of alternative fuel sources, such as fuel cells and solar, electric and battery-powered engines. Several state and federal initiatives mandate this increased use. |
When prices for the future delivery of petroleum products that we transport through our pipeline system or store in our marine terminals fall below current prices, customers are less likely to store these products, thereby reducing our storage revenues.
This market condition is commonly referred to as backwardation. When the petroleum products market is in backwardation, the demand for storage capacity at our facilities may decrease. If the market becomes strongly backwardated for an extended period of time, it may affect our ability to meet our financial obligations and pay cash distributions.
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We depend on petroleum products pipelines owned and operated by others to supply our terminals.
Most of our inland and marine terminal facilities, which are not connected to our petroleum products pipeline system, depend on connections with petroleum products pipelines owned and operated by third parties. Reduced throughput on these pipelines because of testing, line repair, damage to pipelines, reduced operating pressures or other causes could result in our being unable to deliver products to our customers from our terminals or receive products for storage and could adversely affect our ability to meet our financial obligations and pay cash distributions.
Terrorist attacks aimed at our facilities could adversely affect our business.
On September 11, 2001, the United States was the target of terrorist attacks of unprecedented scale. Since the September 11 attacks, the U.S. government has issued warnings that energy assets, specifically our nations pipeline infrastructure, may be future targets of terrorist organizations. These developments have subjected our operations to increased risks. Any future terrorist attack on our facilities, those of our customers and, in some cases, those of other pipelines, could have a material adverse effect on our business.
Our business involves many hazards and operational risks, some of which may not be covered by insurance.
Our operations are subject to many hazards inherent in the transportation and distribution of refined petroleum products and ammonia, including ruptures, leaks and fires. These risks could result in substantial losses due to personal injury or loss of life, severe damage to and destruction of property and equipment and pollution or other environmental damage and may result in curtailment or suspension of our related operations. We are not fully insured against all risks incident to our business. In addition, as a result of market conditions, premiums for our insurance policies have increased significantly and could escalate further. In some instances, insurance could become unavailable or available only for reduced amounts of coverage. For example, insurance carriers are now requiring broad exclusions for losses due to war risk and terrorist and sabotage acts. If a significant accident or event occurs that is not fully insured, it could adversely affect our financial position or results of operations.
Rate regulation or a successful challenge to the rates we charge on our petroleum products pipeline system may reduce the amount of cash we generate.
The FERC regulates the tariff rates for our petroleum products system. Shippers may protest the pipelines tariffs, and the FERC may investigate the lawfulness of new or changed tariff rates and order refunds of amounts collected under rates ultimately found to be unlawful. The FERC may also investigate tariff rates that have become final and effective.
The FERCs ratemaking methodologies may limit our ability to set rates based on our true costs or may delay the use of rates that reflect increased costs. The FERCs primary ratemaking methodology is price indexing. We use this methodology to establish our rates in approximately one-third of our interstate markets. The indexing method allows a pipeline to increase its rates by a percentage equal to the change in the producer price index, or PPI. Please read Narrative Description of BusinessTariff Regulation for further discussion of tariff rates and how they have been impacted by the PPI. If the PPI falls, we could be required to reduce our rates that are based on the FERCs price indexing methodology if they exceed the new maximum allowable rate. In addition, changes in the PPI might not be large enough to fully reflect actual increases in the costs associated with operating the pipeline.
In recent decisions involving unrelated partnerships that own pipelines, the FERC has ruled that these partnerships may not claim an income tax allowance for income attributable to non-corporate limited partners. A shipper could rely on these decisions to challenge our indexed rates and claim that, because we now own a petroleum products pipeline system, the pipeline systems income tax allowance should be reduced. If the FERC
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were to disallow all or part of our income tax allowance, it may be more difficult to justify our rates. If a challenge were brought and the FERC found that some of the indexed rates exceed levels justified by the cost of service, the FERC would order a reduction in the indexed rates and could require reparations for a period of up to two years prior to the filing of a complaint. We establish rates in approximately two-thirds of our markets using the FERCs market-based rate making regulations. These regulations allow us to establish rates based on conditions in individual markets without regard to the index or our costs of service. If successfully challenged, the FERC could take away our ability to establish market-based rates. Any reduction in the indexed rates, removal or our ability to establish market-based rates, or payment of reparations could have a material adverse effect on our operations and reduce the amount of cash we generate.
Mergers among our customers and competitors could result in lower volumes being shipped on our pipelines and/or products stored in or distributed through our terminals, thereby reducing the amount of cash we generate.
Mergers between existing customers could provide strong economic incentives for the combined entities to utilize their existing systems instead of ours in those markets where the systems compete. As a result, we could lose some or all of the volumes and associated revenues from these customers and we could experience difficulty in replacing those lost volumes and revenues. Because most of our operating costs are fixed, a reduction in volumes would result not only in less revenues, but also a decline in net income and cash flow of a similar magnitude, which would reduce our ability to meet our financial obligations and pay cash distributions.
The closure of mid-continent refineries that supply the petroleum products pipeline system could result in disruptions or reductions in the volumes transported on our petroleum products pipeline and the amount of cash we generate.
The U.S. Environmental Protection Agency recently adopted requirements that require refineries to install equipment to lower the sulfur content of gasoline and some diesel fuel they produce. The requirements relating to gasoline took effect and will be implemented in 2004, and the requirements relating to diesel fuel will take effect in 2006 and be implemented through 2010. If refinery owners that use our petroleum pipeline system determine that compliance with these new requirements is too costly, they may close some of these refineries, which could reduce the volumes transported on our petroleum products pipeline and the amount of cash we generate.
Our business is subject to federal, state and local laws and regulations that govern the environmental and operational safety aspects of our operations.
Each of our operating segments is subject to the risk of incurring substantial costs and liabilities under environmental and safety laws. These costs and liabilities arise under increasingly strict environmental and safety laws, including regulations and governmental enforcement policies, and as a result of claims for damages to property or persons arising from our operations. Failure to comply with these laws and regulations may result in assessment of administrative, civil and criminal penalties, imposition of cleanup and site restoration costs and liens and, to a lesser extent, issuance of injunctions to limit or cease operations. If we were unable to recover these costs through increased revenues, our ability to meet our financial obligations and pay cash distributions could be adversely affected.
The terminal and pipeline facilities that comprise the petroleum products pipeline system have been used for many years to transport, distribute or store petroleum products. Over time, operations by us, our predecessors or third parties may have resulted in the disposal or release of hydrocarbons or solid wastes at or from these terminal properties and along such pipeline rights-of-way. In addition, some of our terminals and pipelines are located on or near current or former refining and terminal sites, and there is a risk that contamination is present on those sites. We may be held jointly and severally liable under a number of these environmental laws and regulations for such disposal and releases of hydrocarbons or solid wastes or the existence of contamination, even in circumstances where such activities or conditions were caused by third parties not under our control or were otherwise lawful at the time that they occurred.
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In addition, we own a number of properties that have been used for many years to distribute or store petroleum products by third parties not under our control. In some cases, owners, tenants or users of these properties have disposed of or released hydrocarbons or solid wastes on or under these properties. In addition, some of our terminals are located on or near current or former refining and terminal operations, and there is a risk that contamination is present on these sites. The transportation of ammonia by our pipeline is hazardous and may result in environmental damage, including accidental releases that may cause death or injuries to humans and farm animals and damage to crops.
Our business is subject to federal, state, and local laws and regulations that govern the product quality specifications of the petroleum products that we store and transport.
Petroleum products that we store and transport are sold by our customers for consumption into the public market. Various federal, state, and local agencies have the authority to prescribe specific product quality specifications to commodities sold into the public market. Changes in product quality specifications could reduce our throughput volume, require us to incur additional handling costs, or could require the expenditure of capital. For instance, different product specifications for different markets impacts the fungibility of the system and could require the construction of additional storage. If we are unable to recover these costs through increased revenues, our ability to meet our financial obligations could be adversely affected.
Competition with respect to our operating segments could ultimately lead to lower levels of profits and reduce the amount of cash we generate.
We face competition from other pipelines and terminals in the same markets as our petroleum products pipeline system, as well as from other means of transporting, storing and distributing petroleum products. In addition, our marine and inland terminals face competition from large, generally well-financed companies that own many terminals, as well as from small companies. Our marine and inland terminals also encounter competition from integrated refining and marketing companies that own their own terminal facilities. Our customers demand delivery of products on tight time schedules and in a number of geographic markets. If our quality of service declines or we cannot meet the demands of our customers, they may use our competitors. We compete primarily with rail carriers for the transportation of ammonia. If our customers elect to transport ammonia by rail rather than pipeline, we may realize lower revenues and cash flows and our ability to meet our financial obligations and pay cash distributions may be adversely affected. Our ammonia pipeline also competes with another ammonia pipeline in Iowa and Nebraska.
Our ammonia pipeline system is dependent on three customers.
Three customers ship all of the ammonia on our pipeline and utilize the six terminals that we own and operate on the pipeline. We have contracts with these three shippers through June 2005 that obligate them to ship-or-pay for specified minimum quantities of ammonia. One of these customers has a credit rating below investment grade. The loss of any one of these three customers or their failure or inability to pay us could adversely affect our ability to meet our financial obligations and pay cash distributions.
High natural gas prices can increase ammonia production costs and reduce the amount of ammonia transported through our ammonia pipeline system.
The profitability of our customers that produce ammonia partially depends on the price of natural gas, which is the principal raw material used in the production of ammonia. Natural gas prices increased late in the fourth quarter of 2002 and have remained high throughout 2003. An extended period of high natural gas prices may cause our customers to produce and ship lower volumes of ammonia, which could adversely affect our ability to meet our financial obligations and pay cash distributions.
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Williams sold its interests in our general partner in 2003. As a result of the sale, MMH, the entity that purchased Williams interest, entered into a new Omnibus Agreement with Williams and certain of its affiliates to provide general and administrative services to us, which will result in higher general and administrative expenses and reduce the amount of cash we generate.
In connection with the sale to MMH by Williams of 100% of its ownership interests in our general partner and all of its limited partner interests in us, we are a third-party beneficiary of a new Omnibus Agreement with MMH. There are limitations through 2010 on the amount of general and administrative expenses for which we are required to reimburse MMH and certain of its affiliates, which operate as follows:
| for expenses below a lower cap amount, MMH and its affiliates are not required to make any reimbursements to us; |
| for expenses above the lower cap amount and below an upper cap amount, MMH or its affiliates are required to reimburse us; and |
| for expenses above the upper cap amount, MMH and its affiliates are not required to make any reimbursements to us, although Williams will reimburse MMH for these amounts through June 2004. |
The initial lower cap amount for 2003 was approximately $37.9 million, but escalates annually beginning in 2004, at 7.0% (or, if greater, the percentage increase in the Consumer Price Index), which is a higher escalation rate than was in effect prior to Williams sale of its interests in us. The upper cap amount was $49.3 million for 2003, and will escalate annually, beginning in 2004 at the lesser of 2.5% or the percentage increase in the Consumer Price Index. The upper and lower caps will be further adjusted for incremental general and administrative costs associated with acquisitions we consummate.
These limitations on our obligation to reimburse MMH and certain of its affiliates for general and administrative expenses will terminate upon a change in control of MMH or our general partner. A change in control of our general partner will be deemed to occur if, among other things, directors are elected whose nomination for election to our general partners board of directors was not approved by our general partner or its board of directors or any nominating committee thereof at a time when the board was comprised of only such approved directors or the current directors. In the event of a change in control, the amount of cash we generate will be reduced by any general and administrative costs we incur above the lower cap, resulting from the partnership becoming liable for the full amount of general and administrative costs.
The sale of Williams interests in our general partner required us to separate from Williams. This in turn, required us to obtain services from other sources, which could result in increased costs and limit our ability to meet our obligations and pay cash distributions.
We have entered into a new services agreement with MMH and our general partner. The services provided under the new services agreement include accounting, building administration, human resources, information technology, legal and security, among others. As with our old services agreement, MMH will have the right at any time to terminate its obligations under this services agreement upon 90 days notice. To the extent that neither MMH nor any of its subsidiaries, including our general partner, provides these services to us, the limitations under the new Omnibus Agreement on our reimbursement of general and administrative expenses relating to these services would no longer apply and we may incur increased general and administrative expenses, which could increase our costs and limit our ability to meet our obligations and pay cash distributions.
Indemnities provided by Williams related to assets contributed at our initial public offering, our acquisition of Magellan Pipeline and Williams sale of its interests in us creates credit exposure to Williams.
Williams and certain of its affiliates have indemnified us for certain liabilities and expenses related to the (1) assets contributed to us at the time of our initial public offering, (2) the contribution of Magellan Pipeline to us in April 2002 and (3) the sale of 100% of their interest in our general partner and all of its limited partner interest in us to MMH. These indemnities primarily address environmental liabilities related to matters that arose
57
(1) prior to our ownership of these assets and (2) in the case of the MMH transaction, prior to June 2003. Williams has experienced financial and liquidity difficulties that resulted in the loss of its investment grade credit rating. If Williams were unable to perform on its indemnities it would increase our environmental costs and reduce the amount of cash we generate.
Our secured indebtedness could limit our ability to raise cash to fund future obligations or liquidity concerns.
As of December 31, 2003, our total outstanding long-term indebtedness was $570.0 million, including $480.0 million of senior secured notes and $90.0 million under a credit facility. The indebtedness represented by our senior secured notes and under the credit facility is secured by substantially all of our assets.
Covenants in our debt instruments restrict the aggregate amount of debt that we can borrow. In addition, these covenants restrict our ability to incur additional indebtedness or liens, sell assets, make loans or investments, and to acquire or be acquired by other companies. These debt instruments also provide that, if a change in control of MMH or our general partner occurs, this indebtedness may become due. In such event, we cannot assure you that we would be able to repay this indebtedness.
Our tax treatment depends on our status as a partnership for federal income tax purposes, as well as our not being subject to entity-level taxation by states. If the IRS treats us as a corporation or we become subject to entity-level taxation for state tax purposes, it would reduce the amount of cash we generate.
A partnership is not a taxable entity and incurs no federal income tax liability. Instead, each partner of a partnership is required to take into account his share of items of income, gain, loss and deduction of the partnership in computing his federal income tax liability. The Internal Revenue Code generally provides that a publicly-traded partnership will be taxed as a corporation. However, an exception, know as the Qualifying Income Exception, exists with respect to publicly-traded partnerships of which 90% or more of the gross income for every taxable year consists of qualifying income. Qualifying income includes income derived from the transportation, storage and processing of crude oil, natural gas and products thereof and fertilizer. If we fail to meet the Qualifying Income Exception, we may be treated as a corporation for federal income tax purposes.
The after-tax economic benefit of an investment in our common units depends largely on our being treated as a partnership for federal income tax purposes. If we were classified as a corporation for federal income tax purposes, we would pay federal income tax on our income at the corporate rate. Some or all of the distributions made to unitholders would be treated as dividend incomes, and no income, gains, losses or deductions would flow through to unitholders. Treatment of us as a corporation would cause a material reduction in our anticipated cash flow due to federal and state taxes, which would reduce our ability to meet our financial obligations and pay cash distributions.
Because of widespread state budget deficits, several states are evaluating ways to subject partnerships to entity-level taxation through the imposition of state income, franchise or other forms of taxation even though they are treated as partnerships for federal income tax purposes. If any state were to impose a tax upon us as an entity, the cash available to pay distributions would be reduced. The partnership agreement provides that, if a law is enacted or an existing law is modified or interpreted in a manner that subjects us to taxation as a corporation or otherwise subjects us to entity-level taxation for federal, state or local income tax purposes, then the minimum quarterly distribution and the target distribution levels will be decreased to reflect that impact on us.
ITEM 7A. | Quantitative and Qualitative Disclosures about Market Risk |
At December 31, 2003, we were not engaged in interest rate or foreign currency exchange rate hedging transactions.
Market risk is the risk of loss arising from adverse changes in market rates and prices. The principal market risk to which we are exposed is interest rate risk. Debt we incur under our credit facility and our floating rate
58
series A senior secured notes bear variable interest based on the Eurodollar rate. If the Eurodollar changed by 0.125%, our annual interest obligations associated with the $90.0 million of outstanding borrowings under the term loan and revolving credit facility at December 31, 2003, and the $178.0 million of outstanding borrowings under the floating rate series A senior secured notes would change by approximately $0.3 million. Unless interest rates change significantly in the future, our exposure to interest rate market risk is minimal.
59
ITEM 8. Financial Statements and Supplementary Data
REPORT OF INDEPENDENT AUDITORS
The Board of Directors of Magellan GP, LLC
General Partner of Magellan Midstream Partners, L.P.
We have audited the accompanying consolidated balance sheets of Magellan Midstream Partners, L.P. as of December 31, 2003 and 2002, and the related consolidated statements of income, cash flows and partners capital for each of the three years in the period ended December 31, 2003. These financial statements are the responsibility of the Partnerships management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Magellan Midstream Partners, L.P. at December 31, 2003 and 2002, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2003, in conformity with accounting principles generally accepted in the United States.
/s/ Ernst & Young LLP
Tulsa, Oklahoma
March 8, 2004
60
MAGELLAN MIDSTREAM PARTNERS, L.P.
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except per unit amounts)
Year Ended December 31,
|
||||||||||||
2001
|
2002
|
2003
|
||||||||||
Transportation and terminals revenues: |
||||||||||||
Third party |
$ | 313,683 | $ | 330,545 | $ | 359,726 | ||||||
Affiliate |
25,729 | 33,195 | 13,122 | |||||||||
Product sales revenues: |
||||||||||||
Third party |
40,646 | 45,339 | 111,522 | |||||||||
Affiliate |
67,523 | 25,188 | 790 | |||||||||
Affiliate management fee revenues |
1,018 | 210 | | |||||||||
|
|
|
|
|
|
|
|
|
||||
Total revenues |
448,599 | 434,477 | 485,160 | |||||||||
Costs and expenses: |
||||||||||||
Operating |
153,057 | 152,832 | 164,612 | |||||||||
Environmental |
11,559 | 16,814 | 14,089 | |||||||||
Environmental reimbursements |
(3,736 | ) | (14,500 | ) | (11,818 | ) | ||||||
Product purchases |
95,268 | 63,982 | 99,907 | |||||||||
Depreciation and amortization |
35,767 | 35,096 | 36,081 | |||||||||
Affiliate general and administrative |
47,365 | 43,182 | 56,846 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Total costs and expenses |
339,280 | 297,406 | 359,717 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Operating profit |
109,319 | 137,071 | 125,443 | |||||||||
Interest expense: |
||||||||||||
Affiliate interest expense |
9,770 | 407 | | |||||||||
Other interest expense |
4,836 | 22,500 | 36,597 | |||||||||
Interest income |
(2,493 | ) | (1,149 | ) | (2,061 | ) | ||||||
Debt placement fee amortization |
253 | 9,950 | 2,830 | |||||||||
Other income |
(431 | ) | (2,112 | ) | (92 | ) | ||||||
|
|
|
|
|
|
|
|
|
||||
Income before income taxes |
97,384 | 107,475 | 88,169 | |||||||||
Provision for income taxes |
29,512 | 8,322 | | |||||||||
|
|
|
|
|
|
|
|
|
||||
Net income |
$ | 67,872 | $ | 99,153 | $ | 88,169 | ||||||
|
|
|
|
|
|
|
|
|
||||
Allocation of net income: |
||||||||||||
Limited partners interest |
$ | 21,217 | $ | 80,713 | $ | 90,191 | ||||||
General partners interest |
226 | 4,402 | (2,022 | ) | ||||||||
|
|
|
|
|
|
|
|
|
||||
Portion applicable to partners interests |
21,443 | 85,115 | 88,169 | |||||||||
Portion applicable to non-partnership interests for the period before February 9, 2001, and April 11, 2002 as it relates to the operations of the petroleum products pipeline system |
46,429 | 14,038 | | |||||||||
|
|
|
|
|
|
|
|
|
||||
Net income |
$ | 67,872 | $ | 99,153 | $ | 88,169 | ||||||
|
|
|
|
|
|
|
|
|
||||
Basic net income per limited partner unit |
$ | 1.87 | $ | 3.68 | $ | 3.32 | ||||||
|
|
|
|
|
|
|
|
|
||||
Weighted average number of limited partner units outstanding used for basic net income per unit calculation |
11,359 | 21,911 | 27,195 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Diluted net income per limited partner unit |
$ | 1.87 | $ | 3.67 | $ | 3.31 | ||||||
|
|
|
|
|
|
|
|
|
||||
Weighted average number of limited partner units outstanding used for diluted net income per unit calculation |
11,370 | 21,968 | 27,235 | |||||||||
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements.
61
MAGELLAN MIDSTREAM PARTNERS, L.P.
CONSOLIDATED BALANCE SHEETS
(In thousands)
December 31,
|
||||||||
2002
|
2003
|
|||||||
ASSETS | ||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 75,151 | $ | 111,357 | ||||
Restricted cash |
4,942 | 8,223 | ||||||
Accounts receivable (less allowance for doubtful accounts of $457 and $319 at December 31, 2002 and 2003, respectively) |
23,262 | 19,615 | ||||||
Other accounts receivable |
1,395 | 14,579 | ||||||
Affiliate accounts receivable |
15,608 | 9,324 | ||||||
Inventory |
5,224 | 17,282 | ||||||
Other current assets |
3,640 | 3,941 | ||||||
|
|
|
|
|
|
|||
Total current assets |
129,222 | 184,321 | ||||||
Property, plant and equipment, at cost |
1,334,527 | 1,371,847 | ||||||
Less: accumulated depreciation |
401,396 | 431,298 | ||||||
|
|
|
|
|
|
|||
Net property, plant and equipment |
933,131 | 940,549 | ||||||
Goodwill |
22,295 | 22,057 | ||||||
Other intangibles (less accumulated amortization of $297 and $911 at December 31, 2002 and 2003, respectively) |
2,432 | 11,417 | ||||||
Long-term affiliate receivables |
11,656 | 13,472 | ||||||
Long-term receivables |
9,268 | 9,077 | ||||||
Debt placement costs (less accumulated amortization of $960 and $2,761 at December 31, 2002 and 2003, respectively) |
10,543 | 10,618 | ||||||
Other noncurrent assets |
1,812 | 3,113 | ||||||
|
|
|
|
|
|
|||
Total assets |
$ | 1,120,359 | $ | 1,194,624 | ||||
|
|
|
|
|
|
|||
LIABILITIES AND PARTNERS CAPITAL | ||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | 16,967 | $ | 21,200 | ||||
Affiliate accounts payable |
10,123 | 257 | ||||||
Outstanding checks |
1,967 | 6,961 | ||||||
Accrued affiliate payroll and benefits |
6,308 | 15,077 | ||||||
Accrued taxes other than income |
13,697 | 14,286 | ||||||
Accrued interest payable |
4,065 | 8,196 | ||||||
Environmental liabilities |
10,359 | 12,243 | ||||||
Deferred revenue |
11,550 | 10,868 | ||||||
Accrued product purchases |
2,925 | 11,585 | ||||||
Current portion of long-term debt |
| 900 | ||||||
Other current liabilities |
3,933 | 5,310 | ||||||
|
|
|
|
|
|
|||
Total current liabilities |
81,894 | 106,883 | ||||||
Long-term debt |
570,000 | 569,100 | ||||||
Long-term affiliate payable |
4,293 | 1,509 | ||||||
Other deferred liabilities |
488 | 4,455 | ||||||
Environmental liabilities |
11,927 | 14,528 | ||||||
Commitments and contingencies |
||||||||
Partners capital: |
||||||||
Common unitholders (13,680 units and 21,711 units outstanding at December 31, 2002 and 2003, respectively) |
399,837 | 737,715 | ||||||
Subordinated unitholders (5,680 units outstanding at both December 31, 2002 and 2003) |
131,194 | 135,085 | ||||||
Class B common units (7,831 units outstanding at December 31, 2002) |
313,651 | | ||||||
General partner |
(391,954 | ) | (373,880 | ) | ||||
Accumulated other comprehensive loss |
(971 | ) | (771 | ) | ||||
|
|
|
|
|
|
|||
Total partners capital |
451,757 | 498,149 | ||||||
|
|
|
|
|
|
|||
Total liabilities and partners capital |
$ | 1,120,359 | $ | 1,194,624 | ||||
|
|
|
|
|
|
See notes to consolidated financial statements.
62
MAGELLAN MIDSTREAM PARTNERS, L.P.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Year Ended December 31,
|
||||||||||||
2001
|
2002
|
2003
|
||||||||||
Operating Activities: |
||||||||||||
Net income |
$ | 67,872 | $ | 99,153 | $ | 88,169 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||||||
Depreciation and amortization |
35,767 | 35,096 | 36,081 | |||||||||
Debt placement fee amortization |
253 | 9,950 | 2,830 | |||||||||
Minority interest expense |
229 | | | |||||||||
Deferred income taxes |
6,438 | 1,641 | | |||||||||
Loss/(Gain) on sale and retirement of assets |
249 | (2,088 | ) | 4,563 | ||||||||
Changes in operating assets and liabilities (Note 4) |
24,525 | 17,281 | 12,315 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Net cash provided by operating activities |
135,333 | 161,033 | 143,958 | |||||||||
Investing Activities: |
||||||||||||
Additions to property, plant & equipment |
(39,743 | ) | (37,248 | ) | (34,636 | ) | ||||||
Proceeds from sale of assets |
1,650 | 2,706 | 4,034 | |||||||||
Acquisitions |
(49,409 | ) | (692,493 | ) | (15,346 | ) | ||||||
|
|
|
|
|
|
|
|
|
||||
Net cash used by investing activities |
(87,502 | ) | (727,035 | ) | (45,948 | ) | ||||||
Financing Activities: |
||||||||||||
Distributions paid |
(16,599 | ) | (53,373 | ) | (90,527 | ) | ||||||
Borrowings under credit facility |
139,500 | 8,500 | 90,000 | |||||||||
Payments on credit facility |
| (58,000 | ) | (90,000 | ) | |||||||
Borrowings under short-term note |
| 700,000 | | |||||||||
Payments on short-term note |
| (700,000 | ) | | ||||||||
Borrowings under long-term note |
| 480,000 | | |||||||||
Capital contributions by affiliate |
1,792 | 21,293 | 21,951 | |||||||||
Sales of common units to public (less underwriters commissions and payment of formation and offering costs) |
89,362 | 279,290 | 9,477 | |||||||||
Debt placement costs |
(909 | ) | (19,666 | ) | (2,905 | ) | ||||||
Redemption of 600,000 common units from affiliate |
(12,060 | ) | | | ||||||||
Payments on affiliate note payable |
(235,090 | ) | (29,780 | ) | | |||||||
Payment of interest rate hedge |
| (995 | ) | | ||||||||
Other |
| 47 | 200 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Net cash provided by (used in) financing activities |
(34,004 | ) | 627,316 | (61,804 | ) | |||||||
|
|
|
|
|
|
|
|
|
||||
Change in cash and cash equivalents |
13,827 | 61,314 | 36,206 | |||||||||
Cash and cash equivalents at beginning of period |
10 | 13,837 | 75,151 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Cash and cash equivalents at end of period |
$ | 13,837 | $ | 75,151 | $ | 111,357 | ||||||
|
|
|
|
|
|
|
|
|
||||
Supplemental non-cash investing and financing transactions: |
||||||||||||
Contributions by affiliate of long-term debt, deferred income tax liabilities, and other assets and liabilities to Partnership capital |
$ | 73,671 | $ | 198,117 | $ | 17,644 | ||||||
Purchase of business through the issuance of class B common units |
| 304,388 | | |||||||||
Purchase of Aux Sable pipeline |
8,853 | | |
See notes to consolidated financial statements.
63
MAGELLAN MIDSTREAM PARTNERS, L.P.
CONSOLIDATED STATEMENT OF PARTNERS CAPITAL
(In thousands, except unit amounts)
Common
|
Subordinated
|
Class B Common |
General Partner |
Accumulated Other Comprehensive Loss |
Total Partners Capital |
|||||||||||||||||||
Balance, January 1, 2001 |
$ | 69,856 | $ | | $ | | $ | 318,647 | $ | | $ | 388,503 | ||||||||||||
Net income |
10,608 | 10,609 | | 46,655 | | 67,872 | ||||||||||||||||||
Contribution of net assets of predecessor companies (1.7 million common units and 5.7 million subordinated units issued) |
(49,362 | ) | 117,884 | | 2,290 | | 70,812 | |||||||||||||||||
Redemption of common units (0.6 million units) |
(12,060 | ) | | | | | (12,060 | ) | ||||||||||||||||
Issuance of common units to public (4.6 million units) |
89,362 | | | | | 89,362 | ||||||||||||||||||
Affiliate capital contributions |
878 | 878 | | 36 | | 1,792 | ||||||||||||||||||
Distributions |
(8,134 | ) | (8,134 | ) | | (331 | ) | | (16,599 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Balance, December 31, 2001 |
101,148 | 121,237 | | 367,297 | | 589,682 | ||||||||||||||||||
Comprehensive income: |
||||||||||||||||||||||||
Net income |
40,545 | 22,734 | 17,434 | 18,440 | | 99,153 | ||||||||||||||||||
Net loss on cash flow hedge |
| | | | (971 | ) | (971 | ) | ||||||||||||||||
|
|
|
||||||||||||||||||||||
Total comprehensive income |
98,182 | |||||||||||||||||||||||
Conversion of minority interest liability to partners capital |
| | | 2,270 | | 2,270 | ||||||||||||||||||
Conversion of Magellan Pipeline equity to partnership equity and contribution by affiliate |
| | | (789,910 | ) | | (789,910 | ) | ||||||||||||||||
Issuance of class B common units (7.8 million units) |
| | 304,388 | | | 304,388 | ||||||||||||||||||
Issuance of common units to public (8.0 million units) |
279,290 | | | | | 279,290 | ||||||||||||||||||
Affiliate capital contributions |
4,536 | 1,883 | 2,597 | 12,277 | | 21,293 | ||||||||||||||||||
Distributions |
(25,640 | ) | (14,642 | ) | (10,768 | ) | (2,323 | ) | | (53,373 | ) | |||||||||||||
Other |
(42 | ) | (18 | ) | | (5 | ) | | (65 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Balance, December 31, 2002 |
399,837 | 131,194 | 313,651 | (391,954 | ) | (971 | ) | 451,757 | ||||||||||||||||
Comprehensive income: |
||||||||||||||||||||||||
Net income |
46,857 | 18,838 | 24,496 | (2,022 | ) | | 88,169 | |||||||||||||||||
Amortization of loss on cash flow hedge |
| | | | 200 | 200 | ||||||||||||||||||
|
|
|
||||||||||||||||||||||
Total comprehensive income |
88,369 | |||||||||||||||||||||||
Issuance of common units to public
|
9,477 | | | | | 9,477 | ||||||||||||||||||
Conversion of class B common units to common units (7.8 million units) |
317,379 | | (317,379 | ) | | | | |||||||||||||||||
Affiliate capital contributions |
6,322 | 2,557 | 3,364 | 27,352 | | 39,595 | ||||||||||||||||||
Distributions |
(41,929 | ) | (17,409 | ) | (24,001 | ) | (7,188 | ) | | (90,527 | ) | |||||||||||||
Other |
(228 | ) | (95 | ) | (131 | ) | (68 | ) | | (522 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Balance, December 31, 2003 |
$ | 737,715 | $ | 135,085 | $ | | $ | (373,880 | ) | $ | (771 | ) | $ | 498,149 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements.
64
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. | Organization and Presentation |
Magellan Midstream Partners, L.P. (the Partnership) was formed in August 2000, as Williams Energy Partners L.P., a Delaware limited partnership, to own, operate and acquire a diversified portfolio of complementary energy assets. The Williams Companies, Inc. (Williams) formed the Partnership by contributing entities under its common control into the Partnership. Williams Energy Partners L.P. was renamed Magellan Midstream Partners, L.P. effective September 1, 2003.
At the time of the Partnerships initial public offering in February 2001, the Partnership owned petroleum products terminals and an ammonia pipeline system. On April 11, 2002, the Partnership acquired all of the membership interests of Magellan Pipeline Company, LLC (Magellan Pipeline), formerly Williams Pipe Line Company, LLC (Williams Pipe Line), for approximately $1.0 billion (see Note 6Acquisitions and Divestitures). Because Magellan Pipeline was an affiliate of the Partnership at the time of the acquisition, the transaction was between entities under common control and, as such, was accounted for similarly to a pooling of interests. Accordingly, the consolidated financial statements and notes of the Partnership reflect the combined historical results of operations, financial position and cash flows of the petroleum products terminals, ammonia pipeline system and Magellan Pipeline throughout the periods presented. Magellan Pipelines operations are presented as a separate operating segment of the Partnership under the caption Petroleum Products Pipeline System (see Note 16Segment Disclosures).
On April 11, 2002, the Partnership issued 7,830,924 class B common units representing limited partner interests to an affiliate of Williams. The securities were valued at $304.4 million and along with $6.2 million of additional general partner equity interests, were issued as partial payment for the acquisition of Magellan Pipeline (see Note 6Acquisitions and Divestitures). In December 2003 the class B common units were converted to an equivalent number of common units.
In May 2002, the Partnership issued 8.0 million common units representing limited partner interests in the Partnership at a price of $37.15 per unit for total proceeds of $297.2 million. Associated with this offering, Williams contributed $6.1 million to the Partnership to maintain its 2% general partner interest. A portion of the total proceeds was used to pay underwriting discounts and commissions of $12.6 million. Legal, professional fees and costs associated with this offering were approximately $1.7 million. The remaining cash proceeds of $289.0 million were used to partially repay the $700.0 million short-term note assumed by the Partnership to help finance the Magellan Pipeline acquisition (see Note 13Debt).
In December 2003, the Partnership issued 200,000 common units representing limited partner interests in the Partnership at a price of $50.00 per unit for total proceeds of $10.0 million. Associated with this offering, the General Partner, contributed $0.2 million to the Partnership to maintain its 2% general partnership interest. Of the proceeds received, $0.4 million was used to pay underwriting discounts and commissions. Legal, professional and other costs directly associated with this offering were approximately $0.1 million. The remaining cash proceeds of $9.7 million will be used for general partnership purposes.
The historical results for Magellan Pipeline, include income and expenses and assets and liabilities that were conveyed to and assumed by an affiliate of Williams prior to the acquisition of Magellan Pipeline by the Partnership. The assets principally included Magellan Pipelines interest in and agreements related to Longhorn Partners Pipeline, L.P. (Longhorn), an inactive refinery site at Augusta, Kansas, a pipeline construction project and the ATLAS 2000 software system. The liabilities principally included the environmental liabilities associated with the inactive refinery site in Augusta, Kansas and current and deferred income taxes and an affiliate note payable. The current and deferred income taxes and the affiliate note payable were contributed to the Partnership in the form of a capital contribution by an affiliate of Williams. The income and expenses associated with
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MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Longhorn have not been included in the financial results of the Partnership since the acquisition of Magellan Pipeline by the Partnership in April 2002. Also, as agreed between the Partnership and Williams, operating results from Magellan Pipelines petroleum products management operation, other than an annual fee of approximately $4.0 million, were not included in the financial results of the Partnership after April 2002. In addition, general and administrative expenses related to Magellan Pipeline for which the Partnership had been reimbursing its general partner, Magellan GP, LLC (General Partner), formerly WEG GP LLC, were limited to $30.7 million on an annual basis. This cap was increased to $31.0 million on February 1, 2003 when Magellan Pipeline began operating the Rio Grande Pipeline. The ATLAS 2000 software system assets were contributed to the Partnership on June 17, 2003, in conjunction with the sale of Williams interest in the Partnership (see Change in Ownership of General Partner below), and the depreciation expense associated with those assets has been included in Partnerships results since that date. Also, the Partnership acquired Williams interest in the refined petroleum products management operation in July 2003 (see Note 6Acquisitions and Divestitures), and the results of this operation have been included in the Partnerships results subsequent to that date.
Change in Ownership of General Partner
On June 17, 2003, Williams sold its ownership of 1,079,694 common units, 5,679,694 subordinated units and 7,830,924 class B common units of the Partnership and all of the membership interests of the General Partner, including the incentive distribution rights, to WEG Acquisitions, L.P., a Delaware limited partnership, formed by Madison Dearborn Capital Partners IV, L.P. and Carlyle/Riverstone MLP Holdings, L.P. WEG Acquisitions, L.P. was renamed Magellan Midstream Holdings, L.P. (MMH) effective September 1, 2003.
ATLAS 2000 Agreement
As part of the overall sales transaction between Williams and MMH, an affiliate of Williams assigned its rights to, and interest in, the ATLAS 2000 software system and associated hardware to the Partnership.
Services Agreement
Prior to June 17, 2003, the Partnership had been a party to a services agreement with Williams and its affiliates whereby Williams and its affiliates agreed to perform specified services, including providing necessary employees to operate the Partnerships assets. On June 17, 2003, Williams exercised its right to terminate this services agreement effective September 15, 2003. During a transition period after June 17, 2003, the employees that managed the Partnerships operations continued to be employees of Williams and its affiliates and, until the employees were transferred to MMH, provided services to the Partnership under a transition services agreement (TSA) entered into as a part of the sales transaction between Williams and MMH. Under the provisions of the TSA, Williams was to provide specified technical, commercial, information system and administrative services to the Partnership for a monthly fee, until the earlier of: (i) the date on which all of the employees of the Partnership were transferred to MMH or the Partnership, or (ii) March 31, 2004; however, MMH can, at its option, extend this agreement through June 30, 2004. All of the Williams employees assigned to the Partnership were transferred to MMH on or before January 1, 2004. MMH and Williams agreed to extend specific portions of the TSA relating to a financial system, software licenses and record storage beyond January 1, 2004. The financial system extension was terminated at the end of January 2004. The software licenses extension will terminate when all licenses are transferred to Magellan and the record storage extension will terminate in March 2004
On June 17, 2003, the Partnership entered into a new services agreement with MMH pursuant to which MMH has agreed to perform specified services, including providing necessary employees to operate our assets after the transition period described above. In return, the Partnership reimburses MMH for its direct and indirect expenses incurred in providing these services, subject to the limitations on reimbursement of general and administrative expenses discussed under the New Omnibus Agreement section below. MMH has the right to terminate its obligations under this new services agreement upon 90 days written notice.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
New Omnibus Agreement
Also, in conjunction with the sale of Williams interests in the Partnership, MMH, Williams and certain of Williams affiliates entered into a new Omnibus Agreement, the terms of which include the items listed below:
| Williams and certain of its affiliates have indemnified the Partnership for covered environmental losses related to assets operated by the Partnership at the time of its initial public offering date (February 9, 2001) that become known by February 9, 2004 and that exceed amounts recovered or recoverable under the Partnerships contractual indemnities from third persons or under any applicable insurance policies. However, Williams obligations under this indemnity are limited to $13.3 million, which represents the $15.0 million indemnity provided under the old Omnibus Agreement less amounts paid by Williams prior to June 17, 2003 under that agreement. Covered environmental losses are those non-contingent terminal and ammonia system environmental losses, costs, damages and expenses suffered or incurred by the Partnership arising from correction of violations or performance of remediation required by environmental laws in effect at February 9, 2001, due to events and conditions associated with the operation of the assets and occurring before February 9, 2001. |
| Williams and certain of its affiliates have indemnified the Partnership for right-of-way defects or failures in the ammonia pipeline easements for 15 years after February 9, 2001. Williams and certain of its affiliates have also indemnified the Partnership for right-of-way defects or failures associated with the marine facilities at Galena Park and Corpus Christi, Texas and Marrero, Louisiana for 15 years after February 9, 2001. |
| The Partnership will pay MMH for direct and indirect general and administrative expenses incurred on its behalf. MMH will reimburse the Partnership for general and administrative expenses subject to the limitations as described below. |
| The reimbursement obligation is subject to a lower cap amount, which is calculated as follows: |
| For the period of June 18, 2003 through December 31, 2003, MMH will reimburse the Partnership for general and administrative costs in excess of a lower cap amount of approximately $20.5 million, which represents an annual reimbursement amount of $37.9 million pro-rated for the period from June 18, 2003 through December 31, 2003; |
| For each succeeding fiscal year following 2003, the $37.9 million reimbursement amount will be adjusted by the greater of: (i) 7%, or (ii) the percentage increase in the Consumer Price IndexAll Urban Consumers, U.S. City Average, Not Seasonally Adjusted. However, the reimbursement amount will also be adjusted as applicable during 2003 and subsequent periods for acquisitions, construction projects, capital improvements, replacements or expansions that the Partnership completes that are expected to increase the Partnerships general and administrative costs; |
| The reimbursement limitation expires on December 31, 2010. Additionally, the expense reimbursement limitation excludes: (i) expenses associated with equity-based incentive compensation plans and (ii) implementation costs associated with changing the name of the Partnership and expenses and capital expenditures associated with transitioning the assets, operations and employees from Williams to MMH or the Partnership. |
| The reimbursement limitation is further subject to an upper cap amount. MMH is not required to reimburse the Partnership for any general and administrative expenses that exceed this upper cap amount. The upper cap is calculated as follows: |
| For the period of June 18, 2003 through December 31, 2003, the upper cap was approximately $26.6 million, which represents an annual upper cap amount of $49.3 million pro-rated for the period from June 18, 2003 through December 31, 2003; |
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
| For each succeeding fiscal year after 2003, the upper cap will be increased annually by the lesser of: (i) 2.5%, or (ii) the percentage increase in the Consumer Price IndexAll Urban Consumers, U.S. City Average, Not Seasonally Adjusted. The upper cap will also be adjusted as applicable during 2003 and subsequent periods for acquisitions, construction projects, capital improvements, replacements or expansions that the Partnership completes that are expected to increase the Partnerships general and administrative costs. |
| For the twelve months immediately following the transaction close date of June 17, 2003, Williams has agreed to reimburse MMH for general and administrative expenses incurred by or on behalf of the Partnership in excess of the upper cap amount, if any. |
| For the period June 18, 2003 through December 31, 2003, the Partnerships general and administrative costs did not exceed the upper cap amount. |
| Williams has agreed to reimburse the Partnership in each of the Partnerships 2003 and 2004 fiscal years for any reasonable and customary maintenance capital expenditures to maintain the assets of Magellan Pipeline, in either year, in excess of $19.0 million per year, subject to an aggregate reimbursement limitation of $15.0 million. Magellan Pipelines maintenance capital expenditures in 2003 were less than $19.0 million. |
Other Matters
| As part of its negotiations with Williams for the acquisition of the Partnership, MMH assumed Williams obligations for $21.9 million of environmental liabilities. |
| In connection with Williams sale of its interests in the Partnership, six of the seven directors resigned from the board of directors of the General Partner and four directors affiliated with MMH were appointed to the board of the General Partner. In addition, three independent directors were appointed to the board of the Partnerships general partner during 2003. One of the independent directors appointed in 2003, George OBrien, Jr. serves as the financial expert on the Boards Audit Committee. |
| Also, subsequent to the closing of the transaction, MMH, as the holder of the Partnerships class B common units, exercised its rights under our partnership agreement to require the Partnership to solicit the approval of the Partnerships common unitholders for the conversion of the class B common units into an equal number of common units and the resulting issuance of an aggregate of 7,830,924 common units upon the conversion and cancellation of the 7,830,924 class B common units. The vote on this proposal was completed at the November 2003 annual meeting of limited partners and the class B common units were converted into an equivalent number of common units on December 1, 2003. |
| Upon the closing of the transaction, MMH, as the sole member of the General Partner, entered into the Second Amendment to Limited Liability Company Agreement of the General Partner, which, among other matters, provided for the single-member status of the General Partner as of June 17, 2003. Also, upon the closing of the transaction, the Board of Directors of the General Partner and MMH adopted the Third Amendment to Limited Liability Company Agreement of the General Partner, which, among other provisions, requires the General Partner to obtain the prior approval of MMH before taking certain actions that would have or would reasonably be expected to have a direct or indirect material affect on MMHs membership interest in the General Partner. Examples of the types of matters discussed in the previous sentence are: (i) commencement of any action relating to bankruptcy or bankruptcy-related matters by the Partnership, (ii) mergers, consolidations, recapitalization or similar transactions involving the Partnership, (iii) the sale, exchange or other transfer of assets not in the ordinary course of business of a substantial portion of the assets of the Partnership, (iv) dissolution or liquidation of the Partnership, (v) material amendments of the partnership agreement, and (vi) a material change in the amount of the quarterly distribution made on the common units of the Partnership or the payment of a material extraordinary distribution. |
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
| Upon closing of the transaction, Williams indemnified the Partnership against any environmental losses, breaches of representations and warranties, rights-of-way losses and tax matters incurred from February 9, 2001 through June 17, 2003 for assets included in the Partnerships initial public offering and from April 2002 through June 17, 2003 for Magellan Pipeline assets as well as other items not covered by Williams preexisting indemnities of the Partnership in the amount of $175.0 million. The indemnity limitations are discussed above and in Note 17Commitments and Contingencies. |
MMH assumed sponsorship of the Magellan Pension Plan for PACE Employees (Union Pension Plan), previously named the Williams Pipe Line Company Pension Plan for Hourly Employees, upon transfer of the union employees from Williams to MMH on January 1, 2004. The Partnership will be required to reimburse MMH for its obligations associated with the post-retirement medical and life benefits for qualifying individuals assigned to the Partnership. The Partnership will recognize its reimbursement obligations to MMH associated with the Union Pension Plan and the post-retirement medical and life benefits over the remaining average service lives of the applicable employees (see Note 3Summary of Significant Accounting Policies).
2. Description of Businesses
The Partnership owns and operates a petroleum products pipeline system, petroleum products terminals and an ammonia pipeline system.
Petroleum Products Pipeline System
The petroleum products pipeline system includes Magellan Pipeline, which covers an 11-state area extending from Oklahoma through the Midwest to North Dakota, Minnesota and Illinois. The system includes 6,700 miles of pipeline and 39 terminals that provide transportation, storage and distribution services. The products transported on the Magellan Pipeline system are largely petroleum products, including gasoline, diesel fuels, LPGs and aviation fuels. Product originates on the system from direct connections to refineries and interconnects with other interstate pipelines for transportation and ultimate distribution to retail gasoline stations, truck stops, railroads, airlines and other end-users.
Petroleum Products Terminals
Most of the Partnerships petroleum products terminals are strategically located along or near third-party pipelines or petroleum refineries. The petroleum products terminals provide a variety of services such as distribution, storage, blending, inventory management and additive injection to a diverse customer group including governmental customers and end-users in the downstream refining, retail, commercial trading, industrial and petrochemical industries. Products stored in and distributed through the petroleum products terminal network include refined petroleum products, blendstocks and heavy oils and feedstocks. The terminal network consists of marine terminal facilities and inland terminals. Four marine terminal facilities are located along the Gulf Coast and one marine terminal facility is located in Connecticut near the New York harbor. As of December 31, 2003, we owned 23 inland terminals, which are located primarily in the southeastern United States. See Note 23Subsequent Events for a discussion of terminal acquisitions completed after December 31, 2003.
Ammonia Pipeline System
The ammonia pipeline system consists of an ammonia pipeline and six company-owned terminals. Shipments on the pipeline primarily originate from ammonia production plants located in Borger, Texas and Enid and Verdigris, Oklahoma for transport to terminals throughout the Midwest for ultimate distribution to end-users in Iowa, Kansas, Minnesota, Missouri, Nebraska, Oklahoma, South Dakota and Texas. The ammonia transported through the system is used primarily as nitrogen fertilizer.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
3. Summary of Significant Accounting Policies
Basis of Presentation
The consolidated financial statements include the petroleum products pipeline system, the petroleum products terminals and the ammonia pipeline system. For 11 of the petroleum products terminals, the Partnership owns varying undivided ownership interests. From inception, ownership of these assets has been structured as an ownership of an undivided interest in assets, not as an ownership interest in a partnership, limited liability company, joint venture or other form of entity. Each owner controls marketing and invoicing separately, and each owner is responsible for any loss, damage or injury that may occur to their own customers. As a result, the Partnership applies proportionate consolidation for its interests in these assets. In January 2004, the Partnership acquired the remaining ownership interests in 8 of these terminals (see Note 23Subsequent Events).
Reclassifications
Certain previously reported balances have been classified differently to conform with current year presentation. Net income was not affected by these reclassifications.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates.
Regulatory Reporting
Magellan Pipeline is regulated by the Federal Energy Regulatory Commission (FERC), which prescribes certain accounting principles and practices for the annual Form 6 Report filed with the FERC that differ from those used in these financial statements. Such differences relate primarily to capitalization of interest, accounting for gains and losses on disposal of property, plant and equipment and other adjustments. The Partnership follows generally accepted accounting principles where such differences of accounting principles exist.
Cash Equivalents
Cash and cash equivalents include demand and time deposits and other marketable securities with maturities of three months or less when acquired. The carrying amount of cash and cash equivalents approximates fair value of those instruments due to their short maturity.
Inventory Valuation
Inventory is comprised primarily of refined products, natural gas liquids and materials and supplies. Refined products and natural gas liquids inventories are stated at the lower of average cost or market. The average cost method is used for materials and supplies.
Trade Receivables
Trade receivables are recognized when products are sold or services are rendered. An allowance for doubtful accounts is established for all amounts where collections are considered to be at risk and reserves are evaluated no less than quarterly to determine their adequacy. Judgments relative to at-risk accounts include the customers current financial condition, the customers historical relationship with the Partnership and current and projected economic conditions. Trade receivables are written off when the account is deemed uncollectible.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Property, Plant and Equipment
Property, plant and equipment are stated at cost. Expenditures for maintenance and repairs are charged to operations in the period incurred. Depreciation of property, plant and equipment is provided on the straight-line basis. The cost of property, plant and equipment sold or retired and the related accumulated depreciation is removed from the accounts, and any associated gains or losses are recorded in the income statement, in the period of sale or disposition.
Goodwill and Other Intangible Assets
The Partnership has adopted Statement of Financial Accounting Standard (SFAS) No. 142, Goodwill and Other Intangible Assets. In accordance with this Statement, beginning on January 1, 2002, goodwill, which represents the excess of cost over fair value of assets of businesses acquired, is no longer amortized but is evaluated periodically for impairment. The determination of whether goodwill is impaired is based on managements estimate of the fair value of the Partnerships reporting units as compared to their carrying values. If an impairment were to occur, the amount of the impairment recognized would be determined by subtracting the implied fair value of the reporting unit goodwill from the carrying amount of the goodwill. Other intangible assets are amortized on a straight-line basis over their estimated useful lives of 5 years up to 25 years.
Judgments and assumptions are inherent in managements estimates used to determine the fair value of its operating segments. The use of alternate judgments and/or assumptions could result in the recognition of different levels of impairment charges in the financial statements.
Previously, goodwill was amortized on a straight-line basis over a period of 30 years for those assets acquired prior to July 1, 2001. Based on the amount of goodwill recorded as of December 31, 2001, application of the non-amortization provision of SFAS No. 142 resulted in a decrease to amortization expense in 2002 of approximately $0.8 million.
Impairment of Long-Lived Assets
In January 2002, the Partnership adopted SFAS No. 144 Accounting for the Impairment or Disposal of Long-Lived Assets. There was no initial impact on the Partnerships results of operations or financial position upon adoption of this standard.
In accordance with this Statement, the Partnership evaluates its long-lived assets of identifiable business activities for impairment when events or changes in circumstances indicate, in managements judgment, that the carrying value of such assets may not be recoverable. The determination of whether an impairment has occurred is based on managements estimate of undiscounted future cash flows attributable to the assets as compared to the carrying value of the assets. If an impairment were to occur, the amount of the impairment recognized would be determined by estimating the fair value for the assets and recording a provision for loss if the carrying value is greater than fair value.
For assets identified to be disposed of in the future, the carrying value of these assets is compared to the estimated fair value less the cost to sell to determine if an impairment is required. Until the assets are disposed of, an estimate of the fair value is re-determined when related events or circumstances change.
Judgments and assumptions are inherent in managements estimate of undiscounted future cash flows used to determine recoverability of an asset and the estimate of an assets fair value used to calculate the amount of impairment to recognize. The use of alternate judgments and/or assumptions could result in the recognition of different levels of impairment charges in the financial statements.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Lease Financings
Direct financing leases are accounted for such that the minimum lease payments plus the unguaranteed residual value accruing to the benefit of the lessor is recorded as the gross investment in the lease. The cost or carrying amount of the leased property is recorded as unearned income. The net investment in the lease is the difference between the gross investment and the associated unearned income.
Debt Placement Costs
Costs incurred for debt borrowings are capitalized as paid and are amortized over the life of the associated debt instrument. When debt is retired before its scheduled maturity date, the Partnership writes-off the remaining debt placement costs associated with that debt.
Capitalization of Interest
Interest on borrowed funds is capitalized on projects during construction based on the approximate average interest rate on debt owed by the Partnership. Capitalized interest for the years ended December 31, 2001, 2002 and 2003 was $0.8 million, $0.2 million and $0.1 million, respectively.
Pension and Post-Retirement Medical and Life
The Partnership has recognized affiliate pension and post-retirement medical and life obligations associated with Williams personnel, assigned to the Partnership, who became employees of MMH on or before January 1, 2004. The pension and post-retirement medical and life balances represent the funded status of the present value of benefit obligation net of unrecognized prior service cost/credits and unrecognized actuarial gains/losses.
Paid-Time Off Benefits
Affiliate liabilities for paid-time off benefits are recognized for all employees performing services for the Partnership when earned by those employees. The Partnership recognized paid-time off liability of $5.5 million at December 31, 2003 to its general partner, which represented the amount of remaining vested paid-time off benefits of dedicated employees assigned to an affiliate of the Partnership, whose role is to provide operating and general and administrative services to the Partnership.
Revenue Recognition
Magellan Pipeline transportation revenues are recognized when shipments are complete and estimated pipeline revenues are deferred for shipments in transit. Ammonia pipeline revenues are recognized when product is delivered to the customer. Injection service fees associated with customer proprietary additives are recognized upon injection to the customers product, which occurs at the time the product is delivered. Leased tank storage, pipeline capacity leases, terminalling, throughput, ethanol loading and unloading services, laboratory testing and data services, pipeline operating fees and other miscellaneous service-related revenues are recognized upon completion of contract services. Sales of products produced from fractionation activities and petroleum product asset management activities, are recognized upon delivery of the product to our customer.
General and Administrative Expenses
Prior to the acquisition of Williams interests in the Partnership by MMH on June 17, 2003, the Partnership recorded general and administrative expenses up to the amount of the general and administrative expense limitation as agreed to between the Partnership, its general partner and Williams and its affiliates. Under the new
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
organization structure put in place after June 17, 2003, the Partnership and its affiliates can now clearly identify all general and administrative costs required to support the Partnership and have recognized these costs as general and administrative expense in its current income statement. Since June 17, 2003, the amount of general and administrative expense above the expense limitation, as defined in the new Omnibus Agreement, has been recognized as a contribution of the General Partner and the associated expense specifically allocated to the General Partner.
Equity-Based Incentive Compensation Awards
The General Partner has issued incentive awards of phantom units of the Partnership to certain employees that MMH assigned to the Partnership. These awards are accounted for under provisions of Accounting Principles Board Opinion No. 25. Since the exercise price of the unit awards is less than the market price of the underlying units on the date of grant, compensation expense for the value of these awards is recognized.
Environmental
Environmental expenditures that relate to current or future revenues are expensed or capitalized based upon the nature of the expenditures. Expenditures that relate to an existing condition caused by past operations that do not contribute to current or future revenue generation are expensed. Environmental liabilities are recorded independently of any potential claim for recovery. Receivables are recognized in cases where the realization of reimbursements of remediation costs is considered probable. Accruals related to environmental matters are generally determined based on site-specific plans for remediation, taking into account prior remediation experience of the Partnership.
Income Taxes
Prior to February 9, 2001, the Partnerships operations were included in Williams consolidated federal income tax return. The Partnerships income tax provisions were computed as though separate returns were filed. Deferred income taxes were computed using the liability method and were provided on all temporary differences between the financial basis and tax basis of the Partnerships assets and liabilities.
Effective with the closing of the Partnerships initial public offering on February 9, 2001 (see Note 1Organization and Presentation), the Partnership was no longer a taxable entity for federal and state income tax purposes. Accordingly, for the petroleum products terminals and ammonia pipeline system operations, no recognition has been given to income taxes for financial reporting purposes subsequent to the initial public offering.
Prior to its acquisition by the Partnership, Magellan Pipeline was included in Williams consolidated federal income tax return. Deferred income taxes were computed using the liability method and were provided on all temporary differences between the financial basis and the tax basis of Magellan Pipelines assets and liabilities. Magellan Pipelines federal provision was computed at existing statutory rates as though a separate federal tax return were filed. Magellan Pipeline paid its tax liability to Williams pursuant to its tax sharing arrangement with Williams. No recognition has been given to income taxes associated with Magellan Pipeline for financial reporting purposes for periods subsequent to its acquisition by the Partnership.
The tax on Partnership net income is borne by the individual partners through the allocation of taxable income. Net income for financial statement purposes may differ significantly from taxable income of unitholders as a result of differences between the tax basis and financial reporting basis of assets and liabilities and the taxable income allocation requirements under the Partnerships partnership agreement. The aggregate difference in the basis of the Partnerships net assets for financial and tax reporting purposes cannot be readily determined because information regarding each partners tax attributes in the Partnership is not available to the Partnership.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Allocation of Net Income
Net income is allocated to the General Partner and limited partners based on their respective proportional cash distributions declared and paid following the close of each quarter. The General Partner is also directly charged with specific Partnership costs that it has individually assumed and for which the limited partners are not responsible.
Earnings Per Unit
Basic earnings per unit are based on the average number of common, class B common and subordinated units outstanding. Diluted earnings per unit include any dilutive effect of phantom unit grants. Limited partners earnings are determined after the net income allocation to the General Partner consistent with its distribution under the incentive distribution rights declared for each period presented.
Recent Accounting Standards
In December 2003, the Financial Accounting Standards Board (FASB) issued a revision to SFAS No. 132, Employers Disclosures about Pensions and Other Post-Retirement Benefits. This revision requires that companies provide more details about their plan assets, benefit obligations, cash flows, benefit costs and other relevant information. A description of investment policies and strategies and target allocation percentages, or target ranges, for these asset categories also are required in financial statements. Cash flows will include projections of future benefit payments and an estimate of contributions to be made in the next year to fund pension and other post-retirement benefit plans. In addition to expanded annual disclosures, the FASB is requiring companies to report the various elements of pension and other post-retirement benefit costs on a quarterly basis. The guidance is effective for fiscal years ending after December 15, 2003, and for quarters beginning after December 15, 2003.
In May 2003, the FASB issued SFAS No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity. This Statement is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. This Statement establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify a financial instrument that is within its scope as a liability (or an asset in some circumstances). Many of those instruments were previously classified as equity. This statement had no impact on the Partnerships financial position, results of operations or cash flows upon its initial adoption.
In April 2003, the FASB issued SFAS No. 149, Amendment of Statement 133 on Derivative Instruments and Hedging Activities. This Statement is effective for contracts entered into or modified after June 30, 2003, and for hedging relationships designated after June 30, 2003. In addition all provisions of this Statement must be applied prospectively. This Statement amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts (collectively referred to as derivatives) and for hedging activities under FASB Statement No. 133, Accounting for Derivative Instruments and Hedging Activities. The initial application of this Statement did not have a material impact on the Partnerships financial position, results of operations or cash flows upon its initial adoption.
In December 2002, the FASB issued SFAS No. 148, Accounting for Stock-Based CompensationTransition and Disclosurean amendment of FASB Statement No. 123. This Statement amends FASB Statement No. 123, Accounting for Stock-Based Compensation, to provide alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation. In
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
addition, this Statement amends the disclosure requirements of Statement 123 to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. This Statement improves the prominence and clarity of the pro forma disclosures required by Statement 123 by prescribing a specific tabular format and by requiring disclosure in the Summary of Significant Accounting Policies or its equivalent. The standard is effective for fiscal periods ending after December 15, 2002. Although the Partnership accounts for stock-based compensation for employees assigned to the Partnership under provisions of Accounting Principles Board (APB) Opinion No. 25, the structure of the awards is such that the Partnership fully recognizes compensation expense associated with unit awards. Hence, had the Partnership adopted this standard, it would not have had a material impact on the Partnerships operations or financial position.
In June 2002, the FASB issued SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities. This Statement addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies Emerging Issues Task Force (EITF) Issue No. 94-3, Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring). The provisions of this Statement are effective for exit or disposal activities that are initiated after December 31, 2002, with early application encouraged. The Partnership adopted this standard in January 2003, and it did not have a material impact on the Partnerships results of operations or financial position.
In the second quarter of 2002, the FASB issued SFAS No. 145, Rescission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement 13 and Technical Corrections. The rescission of SFAS No. 4 Reporting Gains and Losses from Extinguishment of Debt, and SFAS No. 64, Extinguishment of Debt Made to Satisfy Sinking-Fund Requirements, requires that gains or losses from extinguishment of debt only be classified as extraordinary items in the event they meet the criteria in APB No. 30, Reporting the Results of Operations Reporting the Effects of Disposal of a Segment of a Business and Extraordinary, Unusual and Infrequently Occurring Events and Transactions. SFAS No. 44, Accounting for Intangible Assets of Motor Carriers, established accounting requirements for the effects of transition to the Motor Carriers Act of 1980 and is no longer required now that the transitions have been completed. Finally, the amendments to SFAS No. 13, Accounting for Leases, are effective for transactions occurring after May 15, 2002. All other provisions of this Statement will be effective for financial statements issued on or after May 15, 2002. The Partnership adopted this standard in January 2003, and it did not have a material impact on our results of operations or financial position. However, in subsequent reporting periods, any gains and losses from debt extinguishments will not be accounted for as extraordinary items.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
4. Consolidated Statements of Cash Flows
Changes in the components of operating assets and liabilities excluding certain assets and liabilities of Magellan Pipeline which were not acquired by the Partnership (see Note 1Organization and Presentation) are as follows (in thousands):
Year Ended December 31,
|
||||||||||||
2001
|
2002
|
2003
|
||||||||||
Accounts receivable and other accounts receivable |
$ | 10,393 | $ | (5,007 | ) | $ | (6,096 | ) | ||||
Affiliate accounts receivable |
15,758 | (8,876 | ) | 3,040 | ||||||||
Inventory |
(12,919 | ) | 5,361 | (6,812 | ) | |||||||
Accounts payable |
2,456 | 4,332 | 3,938 | |||||||||
Affiliate accounts payable |
1,175 | 8,247 | (9,977 | ) | ||||||||
Affiliate income taxes payable |
3,079 | 487 | | |||||||||
Accrued affiliate payroll and benefits |
(822 | ) | 1,702 | 8,260 | ||||||||
Accrued taxes other than income |
(364 | ) | 3,749 | 589 | ||||||||
Accrued interest payable |
277 | 3,788 | 4,131 | |||||||||
Accrued product purchases |
(725 | ) | 214 | 8,660 | ||||||||
Restricted cash |
| (4,942 | ) | (3,281 | ) | |||||||
Current and noncurrent environmental liabilities |
2,669 | 7,542 | 4,485 | |||||||||
Other current and noncurrent assets and liabilities |
3,548 | 684 | 5,378 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Total |
$ | 24,525 | $ | 17,281 | $ | 12,315 | ||||||
|
|
|
|
|
|
|
|
|
5. Allocation of Net Income
The allocation of net income between the General Partner and limited partners is as follows (in thousands):
2001
|
2002
|
2003
|
||||||||||
Allocation of net income to General Partner: |
||||||||||||
Portion of net income applicable to partnership interest |
$ | 21,443 | $ | 85,115 | $ | 88,169 | ||||||
Direct charges to General Partner: |
||||||||||||
Write-off of property, plant and equipment |
| | 1,788 | |||||||||
General and administrative portion of paid-time off accrual |
| | 2,108 | |||||||||
Transition charges |
| | 1,233 | |||||||||
Charges in excess of the general and administrative expense cap charged against income |
| | 5,974 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Total direct charges to General Partner |
| | 11,103 | |||||||||
|
|
|
|
|
|
|
|
|
||||
Income before direct charges to General Partner |
21,443 | 85,115 | 99,272 | |||||||||
General Partners share of distributions |
1.054 | % | 5.172 | % | 9.147 | % | ||||||
|
|
|
|
|
|
|
|
|
||||
General Partners allocated share of net income before direct charges |
226 | 4,402 | 9,081 | |||||||||
Direct charges to General Partner |
| | (11,103 | ) | ||||||||
|
|
|
|
|
|
|
|
|
||||
Net income (loss) allocated to General Partner |
$ | 226 | $ | 4,402 | $ | (2,022 | ) | |||||
|
|
|
|
|
|
|
|
|
||||
Portion of net income applicable to partnership interest |
$ | 21,443 | $ | 85,115 | $ | 88,169 | ||||||
Less: net income (loss) allocated to General Partner |
226 | 4,402 | (2,022 | ) | ||||||||
|
|
|
|
|
|
|
|
|
||||
Net income allocated to limited partners |
$ | 21,217 | $ | 80,713 | $ | 90,191 | ||||||
|
|
|
|
|
|
|
|
|
76
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The write-off of property, plant and equipment relates to Magellan Pipelines asset balances prior to its acquisition by the Partnership; hence, it is charged directly against the General Partners allocation of net income. The general and administrative portion of the paid-time off accrual of $2.1 million during 2003 represents charges that will be reimbursed to the Partnership by the General Partner under the terms of the new Omnibus Agreement (see Note 3Summary of Significant Accounting Policies); consequently, this amount has been charged directly against the General Partners allocation of net income. Transition charges of $1.2 million during 2003 represent the amount of costs for transitioning the Partnership from Williams in excess of the amount contractually required to be paid by the Partnership. The Partnership recorded these excess transition costs as an equity contribution. Costs in excess of the general and administrative expense cap were $6.0 million during 2003. These amounts represent general and administrative expenses charged against Partnership income after June 17, 2003 that will be reimbursed by the General Partner to the Partnership under the terms of the new Omnibus Agreement. The Partnership has recorded the general and administrative costs in excess of the cap as an equity contribution.
6. Acquisitions and Divestitures
Magellan Pipeline
On April 11, 2002, the Partnership acquired all of the membership interests of Magellan Pipeline from an affiliate of Williams for approximately $1.0 billion. The Partnership remitted to an affiliate of Williams consideration in the amount of $674.4 million and Williams retained $15.0 million of Magellan Pipelines receivables. The $310.6 million balance of the consideration consisted of $304.4 million of class B common units representing limited partner interests in the Partnership issued to affiliates of Williams and Williams contribution to the Partnership of $6.2 million to maintain its 2% general partner interest. The Partnership borrowed $700.0 million from a group of financial institutions, paid an affiliate of Williams $674.4 million and used $10.6 million of the funds to pay debt fees and other transaction costs (see Note 13Debt). The Partnership retained $15.0 million of the funds to meet working capital needs.
Magellan Pipeline primarily provides petroleum products transportation, storage and distribution services and is reported as a separate business segment of the Partnership. Because Magellan Pipeline was an affiliate of the Partnership at the time of the acquisition, the transaction was between entities under common control and, as such, has been accounted for similarly to a pooling of interest. Accordingly, the consolidated financial statements and notes of the Partnership have been restated to reflect the historical results of operations, financial position and cash flows as if the companies had been combined throughout the periods presented.
77
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The results of operations for the separate companies and the combined amounts presented in the Consolidated Income Statement follow (in thousands):
Years Ended
December 31, |
||||||
2001
|
2002
|
|||||
Revenues: |
||||||
Pre-acquisition: |
||||||
Magellan Midstream Partners |
$ | 86,054 | $ | 27,249 | ||
Magellan Pipeline |
362,545 | 86,119 | ||||
Post-acquisition: |
||||||
Magellan Midstream Partners |
| 65,329 | ||||
Magellan Pipeline |
| 255,780 | ||||
|
|
|
|
|||
Combined |
$ | 448,599 | $ | 434,477 | ||
|
|
|
|
|||
Net Income: |
||||||
Pre-acquisition: |
||||||
Magellan Midstream Partners |
$ | 21,443 | $ | 9,362 | ||
Magellan Pipeline |
46,429 | 14,038 | ||||
Post-acquisition: |
||||||
Magellan Midstream Partners |
| 17,722 | ||||
Magellan Pipeline |
| 58,031 | ||||
|
|
|
|
|||
Combined |
$ | 67,872 | $ | 99,153 | ||
|
|
|
|
Because Magellan Pipelines assets and liabilities were recorded on the Partnerships consolidated financial statements at their historical values, despite their having been acquired at market value, the General Partners capital account was decreased by $474.5 million, which equaled the difference between the historical and market values of Magellan Pipeline. The effect of this treatment on the Partnerships overall capital balance resulted in a debt-to-total capitalization ratio of 56% and 53% at December 31, 2002 and 2003, respectively.
Other Acquisitions and Divestitures
In July 2003, the Partnership acquired certain rights to a petroleum products management operation from an affiliate of Williams for $10.1 million plus inventory costs of approximately $5.2 million. The $10.1 million acquisition costs were allocated to other intangibles and are being amortized over a 105-month period. The operating results associated with this acquisition have been included with the petroleum products pipeline system segment (see Note 16Segment Disclosures) from the acquisition date.
During the fourth quarter of 2002, the Partnership sold its Mobile, Alabama and Jacksonville, Florida inland terminals. Total cash proceeds of approximately $1.3 million were received, with a gain of approximately $1.1 million recognized.
78
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
7. Inventory
Inventories at December 31, 2002 and 2003 were as follows (in thousands):
December 31,
|
||||||
2002
|
2003
|
|||||
Refined petroleum products |
$ | 3,863 | $ | 3,435 | ||
Natural gas liquids |
| 12,362 | ||||
Additives |
897 | 977 | ||||
Other |
464 | 508 | ||||
|
|
|
|
|||
Total inventories |
$ | 5,224 | $ | 17,282 | ||
|
|
|
|
The increase in the natural gas liquids inventory is the result of the acquisition of certain rights and related inventories pertaining to a petroleum product management operation from an affiliate of Williams in July 2003 (see Note 6Acquisitions and Divestitures).
8. Property, Plant and Equipment
Property, plant and equipment consists of the following (in thousands):
December 31,
|
Estimated Depreciable Lives |
|||||||
2002
|
2003
|
|||||||
Construction work-in-progress |
$ | 4,909 | $ | 14,657 | ||||
Land and rights-of-way |
30,199 | 30,172 | ||||||
Carrier property |
898,829 | 893,660 | 6 59 years | |||||
Buildings |
8,281 | 8,306 | 30 56 years | |||||
Storage tanks |
172,865 | 178,984 | 30 40 years | |||||
Pipeline and station equipment |
57,551 | 72,096 | 30 69 years | |||||
Processing equipment |
138,180 | 139,724 | 30 years | |||||
Other |
23,713 | 34,248 | 3 30 years | |||||
|
|
|
|
|||||
Total |
$ | 1,334,527 | $ | 1,371,847 | ||||
|
|
|
|
Carrier property is defined as pipeline assets regulated by the FERC. Other includes capitalized interest at December 31, 2003 and 2002 of $18.1 million and $18.6 million, respectively. Depreciation expense for the years ended December 31, 2001, 2002 and 2003 was $35.2 million, $34.9 million and $35.5 million, respectively.
9. Major Customers and Concentration of Risk
No customer accounted for more than 10% of total revenues during 2002 and 2003. Williams Energy Marketing & Trading, LLC ( WEM&T), a former affiliate customer, and Customer A accounted for more than 10% of total revenues during 2001. Customer A is and WEM&T was a customer of the petroleum products terminals segment and the petroleum products pipeline system segment. The percentage of revenues derived by customer is provided below:
2001
|
2002
|
2003
|
|||||||
Customer A |
10 | % | 9 | % | 9 | % | |||
WEM&T |
17 | % | 9 | % | 2 | % | |||
|
|
|
|
|
|
||||
Total |
27 | % | 18 | % | 11 | % | |||
|
|
|
|
|
|
79
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Accounts receivable from WEM&T accounted for 7% and 0% of total accounts and affiliate receivables at December 31, 2002 and 2003, respectively.
Magellan Pipeline transports petroleum products for refiners and marketers in the petroleum industry. The major concentration of Magellan Pipelines revenues is derived from activities conducted in the central United States. The size and quality of the companies with which the Partnership conducts its businesses hold our credit losses to a minimum. Sales to our customers are generally unsecured and the financial condition and creditworthiness of customers are periodically evaluated. The Partnership has the ability with many of its terminals contracts to sell stored customer products to recover unpaid receivable balances, if necessary. The concentration of ammonia revenues is derived from customers with plants in Oklahoma and Texas and sales are generally unsecured. Issues impacting the petroleum refining and marketing and anhydrous ammonia industries could impact the Partnerships overall exposure to credit risk.
To conduct the Partnerships operations, an affiliate of the Partnerships general partner employes approximately 823 employees. Magellan Pipelines labor force of 435 employees is concentrated in the central United States. At December 31, 2003, 50% of the employees were represented by a union and covered by collective bargaining agreements that extend through January 31, 2006. The petroleum products terminals operations labor force of 174 people is concentrated in the southeastern and Gulf Coast regions of the United States. None of the terminal operations employees are represented by labor unions. The employees at the Partnerships Galena Park marine terminal facility were previously represented by a union, but indicated in 2000 their unanimous desire to terminate their union affiliation. Nevertheless, the National Labor Relations Board (NLRB) ordered the Partnership to bargain with the union as the exclusive collective bargaining representative of the employees at the facility. Subsequently, the NLRB reversed its decision and withdrew its order. Our general partners affiliate considers its employee relations to be good.
10. Employee Benefit Plans
On June 17, 2003, Williams sold its interest in the Partnership (see Note 1Organization and Presentation). Employees dedicated to or otherwise supporting the Partnership remained employees of Williams through December 31, 2003 and many participated in Williams sponsored employee benefit plans. For the period from June 18, 2003 through December 31, 2003, Williams charged the Partnership for the services of the employees in accordance with the TSA as defined in Note 1 Organization and Presentation.
Williams offered certain of these employees non-contributory defined-benefit plans that provided pension, retiree medical and life insurance benefits. Cash contributions to the plans were made by Williams and were not specifically identifiable to the dedicated employees participation. Affiliate expense charges from Williams to the Partnership related to the dedicated employees participation in the plans totaled $1.5 million, $2.9 million and $1.8 million, for the years ended December 31, 2001 and 2002, and for the period from January 1, 2003 to June 17, 2003, respectively. Expense charges from Williams to the Partnership under the transition service agreement related to the period from June 18, 2003 through December 31, 2003 are not specifically identifiable to the dedicated employees participation in the plan.
Employees dedicated to or otherwise supporting the Partnership also participated in a Williams defined-contribution plan. The plan provided for matching contributions within specified limits. Affiliate charges from Williams to the Partnership related to the dedicated employees participation in the plan totaled $2.4 million, $2.3 million, and $0.7 million, for the years ended December 31, 2002 and 2001 and for the period from January 1, 2003 to June 17, 2003, respectively. Expense charges from Williams to the Partnership under the TSA related to the period from June 18, 2003 through December 31, 2003 are not specifically identifiable to the dedicated employees participation in the plan.
80
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
The employees previously assigned by Williams to the Partnership became employees of MMH on January 1, 2004. MMH committed to provide for certain employee benefits as of the employee transfer date. The Partnership has recognized in its Consolidated Balance Sheet an obligation related to this commitment. The following table presents the Partnerships recognition of the benefit obligations and plan assets for the pension plans and other post-retirement benefit plans for which MMH assumed sponsorship or created on January 1, 2004 (in thousands):
Pension
|
Other
Retirement
|
|||||||
Benefit obligation |
$ | 26,294 | $ | 18,266 | ||||
Fair value of plan assets |
19,453 | | ||||||
|
|
|
|
|
|
|||
Funded status |
(6,841 | ) | (18,266 | ) | ||||
Unrecognized prior service cost |
6,841 | 18,266 | ||||||
|
|
|
|
|
|
|||
Prepaid benefit cost |
$ | | $ | | ||||
|
|
|
|
|
|
|||
Accumulated benefit obligation |
$ | 18,252 | N/A | |||||
|
|
|
|
|
|
|||
Weighted-average assumptions used to determine benefit obligations: |
||||||||
Discount rate |
6.3 | % | 6.3 | % | ||||
Rate of compensation increase |
5.0 | % | N/A | |||||
Estimated contributions in 2004 |
$ | 1,200 | $ | | ||||
|
|
|
|
|
|
The Partnership used a January 1, 2004, measurement date for these plans. For benefits incurred by participants prior to age 65, the annual assumed rate of increase in the health care cost trend rate for 2004 is 8.6% and systematically decreases to 5.0% by 2009. The annual assumed rate of increase in the health care cost trend rate for post-65 benefits for 2004 is 12.0%, and systematically decreases to 5.0 % by 2016. The health care cost trend rate assumption has a significant effect on the amounts reported. A 1.0% change in assumed health care cost trend rates would have the following effect (in thousands):
Point
Increase |
Point
Decrease |
||||||
Effect on post-retirement benefit obligation |
$ | 2,428 | $ | (1,971 | ) |
The Medicare Prescription Drug Improvement and Modernization Act of 2003 (the Act) was enacted on December 8, 2003. The effect of the Act has not been reflected in the post-retirement benefit obligation disclosed above. Authoritative guidance on the accounting for the federal subsidy is pending and that guidance, when issued, could require the Partnership to change previously reported information.
11. Related Party Transactions
Williams ownership interest in the Partnership was sold to MMH on June 17, 2003 (see Note 1Organization and Presentation). As a result of that sale, transactions with Williams and its affiliates subsequent to that date were recorded as third-party transactions.
The Partnership had agreements with WEM&T which provided for: (i) the lease of a Carthage, Missouri propane storage cavern and (ii) access and utilization of storage on the Magellan Pipeline system. Magellan Pipeline had entered into pipeline lease agreements and tank storage agreements with Mid-America Pipeline
81
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Company (MAPL) and Williams Bio-Energy, LLC (Williams Bio-Energy), respectively. MAPL was an affiliate entity until its sale by Williams in July 2002 and Williams Bio-Energy was an affiliate entity until its sale by Williams in May 2003. The Partnership also had a lease storage contract with Williams Bio-Energy at its Galena Park, Texas marine terminal facility.
The Partnership also had an agreement with WEM&T, which provided for storage and other ancillary services at the Partnerships marine terminal facilities. This agreement was cancelled during the first quarter of 2003 in exchange for a $3.0 million payment to the Partnership from WEM&T. Both WEM&T and Williams Refining & Marketing had agreements for the access and utilization of the inland terminals.
The Partnership had an agreement with Williams Petroleum Services, LLC to perform services related to petroleum products asset management activities for an annual fee in 2003 of approximately $4.0 million. In July 2003, the Partnership acquired from Williams and its affiliates the rights to these activities (see Note 6Acquisitions and Divestitures).
The Partnership also had affiliate agreements with WEM&T and Williams Refining & Marketing, LLC for the non-exclusive and non-transferable sub-license to use the ATLAS 2000 software system. The rights to this system were contributed to the Partnership on June 17, 2003 (see Change in Ownership of General Partner under Note 1Organization and Presentation).
Payment terms for affiliate entity transactions were generally the same as for third-party companies. Generally, at each month-end, the Partnership was in a net payable position with Williams. The Partnership deducted any amounts owed to it by Williams before making its monthly remittances to Williams.
The following table reflects revenues from various Williams subsidiaries through June 17, 2003 (in thousands):
Year Ended December 31,
|
|||||||||
2001
|
2002
|
2003
|
|||||||
Williams 100%-Owned Affiliates: |
|||||||||
Williams Energy Marketing & Trading |
$ | 75,717 | $ | 40,119 | $ | 7,425 | |||
Williams Refining & Marketing |
13,519 | 8,164 | 306 | ||||||
Williams Bio-Energy |
3,448 | 4,842 | 2,366 | ||||||
Midstream Marketing & Risk Management |
| 1,719 | 598 | ||||||
Mid-America Pipeline |
285 | 165 | | ||||||
Williams Petroleum Services, LLC |
| 2,625 | 2,992 | ||||||
Other |
| 749 | | ||||||
Williams Partially-Owned Affiliates: |
|||||||||
Longhorn Pipeline Partners |
1,301 | 210 | | ||||||
Rio Grande Pipeline |
| | 225 | ||||||
|
|
|
|
|
|
||||
Total |
$ | 94,270 | $ | 58,593 | $ | 13,912 | |||
|
|
|
|
|
|
82
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Costs and expenses related to activities between Williams and its affiliates and the Partnership after June 17, 2003, have been accounted for as unaffiliated third-party transactions. Transactions between the Partnership and MMH and its affiliates were accounted for as affiliate transactions after June 17, 2003. The following are costs and expenses from various affiliate companies to the Partnership and are reflected in the cost and expenses in the accompanying consolidated statements of income (in thousands):
Year Ended December 31,
|
||||||||
2001
|
2002
|
2003
|
||||||
Williams Energy Servicesdirect and directly allocable expenses |
$ | 29,242 | $ | 8,231 | | |||
Williamsallocated general and administrative expenses |
18,123 | 34,951 | 23,880 | |||||
Williamsallocated operating and maintenance expenses |
160,880 | 155,146 | 68,079 | |||||
Williams Energy Marketing & Tradingproduct purchases |
80,959 | 22,268 | 472 | |||||
Mid-America Pipelineoperating and maintenance expenses |
2,730 | 1,318 | | |||||
MMHallocated operating and maintenance expenses |
| | 98,804 | |||||
MMHallocated general and administrative expenses |
| | 32,966 |
In 2001, 2002 and for the period January 1, 2003 through June 17, 2003, Williams allocated both direct and indirect general and administrative expenses to the Partnerships general partner. Direct expenses allocated by Williams were primarily salaries and benefits of employees and officers associated with the business activities of the affiliate. Indirect expenses include legal, accounting, treasury, engineering, information technology and other corporate services. Williams allocated these expenses to the General Partner based on the expense limitation provided for in the Omnibus Agreement. The Partnership reimbursed the General Partner and its affiliates for expenses charged to the Partnership by the General Partner on a monthly basis. On June 17, 2003, Williams ownership in the Partnership was sold to MMH. As a result, the Partnership entered into a new services agreement with MMH pursuant to which MMH agreed to perform specified services required for the operation of the Partnership. Consequently, the Partnerships general and administrative expenses are now provided by MMH and reimbursed by the Partnership, subject to the limitations as defined in the new Omnibus Agreement (see Change in Ownership of General Partner under Note 1Organization and Presentation). In addition, in 2001, 2002 and for the period January 1, 2003 through June 17, 2003, Williams allocated operating and maintenance expenses to the Partnerships general partner. Expenses included all costs directly associated with the operations of the Partnerships businesses. From June 17, 2003 through December 31, 2003 operating expenses were allocated to the Partnerships general partner from MMH.
Beginning with the closing date of the initial public offering, the General Partner, through provisions included in the Omnibus Agreement, agreed that for the assets associated with the petroleum products terminals and ammonia pipeline system operations, the Partnership would reimburse the General Partner for general and administrative costs up to a specified expense limitation. In addition, beginning with the acquisition of Magellan Pipeline, the General Partner agreed that for these assets, the Partnership would reimburse the General Partner for general and administrative costs up to a specified expense limitation. The additional general and administrative costs incurred but not reimbursed by the Partnership totaled $10.4 million for the period February 10, 2001 through December 31, 2001, $19.7 million in 2002, $5.2 million for the period January 1, 2003 through June 17, 2003 and $6.0 million for the period June 18, 2003 through December 31, 2003. The general and administrative costs allocated from Williams for the periods of February 10, 2001 through December 31, 2001, 2002 and January 1, 2003 through June 17, 2003 included a number of costs that were not specific to the Partnerships business and therefore cannot be used as an estimate of our general and administrative costs during those periods.
The Partnership and MAPL had an operating agreement whereby MAPL operated the ammonia pipeline system for the Partnership for a fee. On July 31, 2002, Williams sold 98% of Mapletree LLC, which owned
83
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
MAPL, to Enterprise Products Partners L.P. (Enterprise). All transactions between the Partnership, MAPL and Enterprise after July 31, 2002 have been recorded as unaffiliated third-party transactions.
Historically, Magellan Pipeline had an agreement with WEM&T to purchase transmix for fractionation and product to settle shortages. For the periods that MAPL was an affiliate of the Partnership, MAPL provided operating and maintenance support, to the ammonia pipeline and leased storage space to Magellan Pipeline.
Williams agreed to reimburse the Partnership for maintenance capital expenditures incurred in 2001 and 2002 in excess of $4.9 million per year related to our initial public offering assets. This reimbursement obligation was subject to a maximum combined reimbursement for both years of $15.0 million. During 2001 and 2002, the Partnership recorded reimbursements from Williams associated with these assets of $3.9 million and $11.0 million, respectively. In connection with our acquisition of Magellan Pipeline, Williams agreed to reimburse the Partnership for maintenance capital expenditures incurred in 2002, 2003 and 2004 in excess of $19.0 million per year related to the Magellan Pipeline system, subject to a maximum combined reimbursement for all years of $15.0 million. The Partnerships maintenance capital expenditure related to the Magellan Pipeline system in 2002 and 2003 were less than $19.0 million per year, and no amounts were collected from Williams under this agreement.
Williams and certain of its affiliates and MMH have indemnified the Partnership against certain environmental costs. Receivables from Williams or its affiliates associated with these environmental costs were $22.9 million and $7.8 million at December 31, 2002 and December 31, 2003, respectively, and are included with accounts receivable amounts presented in the Consolidated Balance Sheets. Receivables from MMH were $19.0 million at December 31, 2003 and are included with the affiliate accounts receivable in the Consolidated Balance Sheets (see Note 1Presentation and Organization and 17Commitments and Contingencies).
Historically, Williams charged interest expense to its affiliates based on their inter-company debt balances. The Partnership entities also participated in employee benefit plans and long-term incentive plans sponsored by Williams (see Note 10Employee Benefit Plans).
12. Income Taxes
The Partnership does not currently pay income taxes due to its legal structure. However, earnings generated prior to the Partnerships initial public offering in 2001, and earnings of Magellan Pipeline prior to the Partnerships acquisition of it in April 2002, were subject to income taxes. The provision for income taxes is as follows (in thousands):
Year Ended December 31, |
||||||
2001
|
2002
|
|||||
Current: |
||||||
Federal |
$ | 19,405 | $ | 6,313 | ||
State |
3,669 | 874 | ||||
Deferred: |
||||||
Federal |
5,597 | 987 | ||||
State |
841 | 148 | ||||
|
|
|
|
|||
$ | 29,512 | $ | 8,322 | |||
|
|
|
|
84
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Reconciliations from the provision for income taxes at the U.S. federal statutory rate to the effective tax rate for the provision for income taxes are as follows (in thousands):
Year Ended December 31, |
||||||||
2001
|
2002
|
|||||||
Income taxes at statutory rate |
$ | 34,084 | $ | 37,616 | ||||
Less: income taxes at statutory rate on income applicable to partners interest |
(7,504 | ) | (29,790 | ) | ||||
Increase resulting from: |
||||||||
State taxes, net of federal income tax benefit |
2,931 | 496 | ||||||
Other |
1 | | ||||||
|
|
|
|
|
|
|||
Provision for income taxes |
$ | 29,512 | $ | 8,322 | ||||
|
|
|
|
|
|
13. Debt
Debt for the Partnership at December 31, 2002 and 2003 was as follows (in thousands):
December 31,
|
||||||
2002
|
2003
|
|||||
Magellan OLP term loan and revolving credit facility, long-term portion |
$ | 90,000 | $ | | ||
Magellan term loan and revolving credit facility: |
||||||
Long-term portion |
| 89,100 | ||||
Current portion |
| 900 | ||||
|
|
|
|
|||
Total |
| 90,000 | ||||
Magellan Pipeline Senior Secured Notes, long-term portion |
480,000 | 480,000 | ||||
|
|
|
|
|||
Total debt |
$ | 570,000 | $ | 570,000 | ||
|
|
|
|
Magellan term loan and revolving credit facility
In August 2003, the Partnership entered into a new credit agreement with a syndicate of banks. This facility, which replaced the term loan and revolving credit facility of Magellan OLP, L.P. (Magellan OLP), formerly Williams OLP L.P., a subsidiary of the Partnership, is comprised of a $90.0 million term loan and an $85.0 million revolving credit facility of which $10.0 million is available for letters of credit. Indebtedness under the term loan initially bore interest at the Eurodollar rate plus a margin of 2.4%. The facility was amended in December 2003 to reduce the margin on the term loan borrowings to 2.0%. Indebtedness under the revolving credit facility bears interest at the Eurodollar rate plus a margin of 1.8%. The Partnership also incurs a commitment fee on the un-drawn portion of the revolving credit facility. The facility provides for the establishment of up to $100.0 million in additional term loans, which would bear interest at a rate agreed to at the time of borrowing. The Partnership incurred debt placement fees of $2.6 million associated with this credit facility, which are being amortized over the life of the credit facility.
The new revolving credit facility terminates on August 6, 2007, and the new term loan terminates on August 6, 2008. Scheduled prepayments equal to 1.0% of the initial term loan balance are due on August 6th of each year until maturity. As of December 31, 2003, the $90.0 million term loan was outstanding with $0.2 million of the $85.0 million revolving credit facility being used for a letter of credit, with the balance
85
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
available for future borrowings. Obligations under the facility are secured by the Partnerships equity interests in Magellan GP, Inc. and Magellan OLP and their subsidiaries, including the entities which hold our petroleum products terminals and ammonia pipeline system. Magellan GP, Inc., a Delaware corporation, is the general partner of Magellan OLP. Those entities are also guarantors of the Partnerships obligations under the facility. Magellan Pipeline is a separate operating subsidiary of the Partnership and is not a guarantor under this facility. The weighted-average interest rate for this facility for the period August 6, 2003 through December 31, 2003 was 3.4% and the interest rate at December 31, 2003 was 3.2%.
Under the terms of the above-named facility, a change in control results in an event of default, in which case the maturity date of the obligations under the facility may be accelerated. For this facility, a change of control is defined in a variety of ways, each of which involve the current owners of MMH no longer maintaining majority control of the management of MMH, the Partnership or the General Partner. This facility contains various operational and financial covenants. The Partnership is in compliance with all of these covenants.
At December 31, 2002, Magellan OLP, had a $175.0 million bank credit facility which was comprised of a $90.0 million term loan facility and an $85.0 million revolving credit facility. On February 9, 2001, the OLP borrowed $90.0 million under the term loan facility, which remained outstanding until August 2003, when the facility was repaid. Borrowings under the credit facility carried an interest rate equal to the Eurodollar rate plus a spread from 1.0% to 1.5%, depending on the OLPs leverage ratio. Interest was also assessed on the unused portion of the credit facility at a rate from 0.2% to 0.4%, depending on the OLPs leverage ratio. Closing fees associated with the initiation of the credit facility were $0.9 million and were amortized over the life of the facility. Weighted-average interest rates were 5.0% for the period February 10, 2001 through December 31, 2001, 3.3% for the twelve months ended December 31, 2002 and 2.6% for the period January 1, 2003 through August 6, 2003 (when the facility was repaid). The interest rates for amounts borrowed against this facility on December 31, 2001 and 2002 were 3.2% and 2.8%, respectively.
Magellan Pipeline Senior Secured Notes
During October 2002, Magellan Pipeline entered into a private placement debt agreement with a group of financial institutions for up to $200.0 million aggregate principal amount of Floating Rate Series A-1 and Series A-2 Senior Secured Notes and up to $340.0 million aggregate principal amount of Fixed Rate Series B-1 and Series B-2 Senior Secured Notes. Both notes are secured with the Partnerships membership interest in and assets of Magellan Pipeline. The maturity date of both notes is October 7, 2007; however, the Partnership will be required on each of October 7, 2005 and October 7, 2006, to repay 5.0% of the then outstanding principal amount of the Senior Secured Notes. Two borrowings have occurred in relation to these notes. The first borrowing was completed in November 2002 and was for $420.0 million, of which $156.0 million was borrowed under the Series A-1 notes and $264.0 million under the Series B-1 notes. The proceeds from this initial borrowing were used to repay Williams Pipe Lines $411.0 million short-term loan and pay related debt placement fees. The second borrowing was completed in December 2002 for $60.0 million, of which $22.0 million was borrowed under the Series A-2 notes and $38.0 million under the Series B-2 notes. $58.0 million of the proceeds from this second borrowing were used to repay the acquisition sub-facility of the OLP and $2.0 million were used for general partnership purposes.
The Series A-1 and Series A-2 notes bear interest at a rate equal to the six month Eurodollar rate plus 4.3%. The Series B-1 notes bear interest at a fixed rate of 7.7%, while the Series B-2 notes bear interest at a fixed rate of 7.9%. The weighted-average rate for the Magellan Pipeline Senior Secured Notes at December 31, 2003 and 2002 was 6.9% and 7.0%, respectively. The Partnership incurred debt placement fees associated with these notes of $10.5 million in 2002 and $0.3 million in 2003, which are being amortized over the life of the notes. Payment
86
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
of interest and repayment of the principal is guaranteed by the Partnership. Monthly deposits in the amount of interest due the lenders are made to a cash escrow account from which interest payments on the Magellan Pipeline notes are made semi-annually. These deposits are reflected as restricted cash on the Partnerships Consolidated Balance Sheets and were $4.9 million and $8.2 million at December 31, 2002 and 2003, respectively.
The debt agreement imposes certain restrictions on Magellan Pipeline and the Partnership. Generally, the agreement restricts the amount of additional indebtedness Magellan Pipeline can incur, prohibits Magellan Pipeline from creating or incurring any liens on its property, and restricts Magellan Pipeline from disposing of its property, making any debt or equity investments, or making any loans or advances of any kind. The agreement also requires transactions between Magellan Pipeline and any of its affiliates to be on terms no less favorable than those Magellan Pipeline would receive in an arms-length transaction. In the event of a change in control of the General Partner, each holder of the notes would have thirty days within which they could exercise a right to put their notes to Magellan Pipeline unless the new owner of the General Partner has (i) a net worth of at least $500.0 million and (ii) long-term unsecured debt rated as investment grade by both Moodys Investor Service Inc. and Standard & Poors Rating Service. If this put right were exercised, Magellan Pipeline would be obligated to repurchase any such notes and repay any accrued interest within sixty days.
In April 2002, the Partnership borrowed $700.0 million from a group of financial institutions. This short-term loan was used to help finance the Partnerships acquisition of Magellan Pipeline. During the second quarter of 2002 the Partnership repaid $289.0 million of the short-term loan with net proceeds from an equity offering. Debt placement fees associated with the note were $7.1 million and were amortized over the life of the note. In October 2002, the Partnership negotiated an extension to the maturity of this note from October 8, 2002, to November 27, 2002 and the Partnership paid additional fees of approximately $2.1 million associated with this maturity date extension. The Partnership repaid the remaining outstanding balance of the note on November 15, 2002. The weighted-average interest rate on this note was 5.1% for the period April 11, 2002 through November 15, 2002.
During September 2002, in anticipation of a new debt placement to replace the short-term debt assumed to acquire Magellan Pipeline, the Partnership entered into an interest rate hedge. The effect of this interest rate hedge was to set the coupon rate on a portion of the fixed-rate debt at 7.8% prior to actual execution of the debt agreement. The loss on the hedge, approximately $1.0 million, was recorded in accumulated other comprehensive loss and is being amortized over the five-year life of the fixed-rate debt secured during October 2002.
During the years ending December 31, 2001, 2002 and 2003, total cash payments for interest on all indebtedness, net of amounts capitalized, were $13.7 million, $18.0 million and $32.5 million, respectively.
87
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
14. Leases
LeasesLessee
The Partnership leases land, office buildings, tanks and terminal equipment at various locations to conduct its business operations. Future minimum annual rentals under non-cancelable operating leases as of December 31, 2003, are as follows (in thousands):
2004 |
$ | 2,435 | |
2005 |
2,290 | ||
2006 |
2,215 | ||
2007 |
2,167 | ||
2008 |
1,661 | ||
Thereafter |
7,740 | ||
|
|
||
Total |
$ | 18,508 | |
|
|
LeasesLessor
On December 31, 2001, the Partnership purchased an 8.5-mile, 8-inch natural gas liquids pipeline in northeastern Illinois from Aux Sable Liquid Products L.P. (Aux Sable) for $8.9 million. The Partnership then entered into a long-term lease arrangement under which Aux Sable is the sole lessee of these assets. The Partnership has accounted for this transaction as a direct financing lease. The lease expires in December 2016 and has a purchase option after the first year. Aux Sable has the right to re-acquire the pipeline at the end of the lease for a de minimis amount. The Partnership also has two five-year pipeline capacity leases with Farmland Industries, Inc. The first agreement, which is accounted for as a direct financing lease, will expire on November 30, 2005 and the second agreement, which is accounted for as an operating lease, will expire on April 30, 2007. Both leases contain options to extend the agreement for another five years. In addition, the Partnership has nine other capacity operating leases with terms of one to thirteen years. All of the agreements provide for negotiated extensions.
Future minimum lease payments receivable under operating-type leasing arrangements as of December 31, 2003, are as follows (in thousands):
2004 |
$ | 8,336 | |
2005 |
4,904 | ||
2006 |
4,372 | ||
2007 |
4,062 | ||
2008 |
3,907 | ||
Thereafter |
19,172 | ||
|
|
||
Total |
$ | 44,753 | |
|
|
88
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Future minimum lease payments receivable under direct-financing-type leasing arrangements as of December 31, 2003, were $2.5 million in 2004, $1.3 million during each year from 2005 through 2008 and $10.1 million cumulatively for all periods after 2008. The net investment under direct financing leasing arrangements as of December 31, 2002 and 2003, are as follows (in thousands):
December 31,
|
||||||
2002
|
2003
|
|||||
Total minimum lease payments receivable |
$ | 20,154 | $ | 17,699 | ||
Less: Unearned income |
9,923 | 8,469 | ||||
|
|
|
|
|||
Recorded net investment in direct financing leases |
$ | 10,231 | $ | 9,230 | ||
|
|
|
|
As of December 31, 2003, the net investment in direct financing leases is classified in the Consolidated Balance Sheet as $0.4 million current accounts receivable, $0.2 million current deferred revenue and $9.0 million noncurrent receivable. As of December 31, 2002, the net investment in direct financing leases is classified in the Consolidated Balance Sheet as $1.4 million current accounts receivable, $0.4 million current deferred revenue, $9.4 million non-current receivable and $0.2 non-current deferred revenue.
15. Long-Term Incentive Plan
In February 2001, the General Partner adopted the Williams Energy Partners Long-Term Incentive Plan, which was amended and restated on February 3, 2003, on July 22, 2003, and on February 3, 2004, for employees who perform services for the Partnership and directors of the General Partner. The Long-Term Incentive Plan consists of two components: phantom units and unit options. The Long-Term Incentive Plan permits the grant of awards covering an aggregate of 700,000 common units. The Compensation Committee of the General Partners Board of Directors administers the Long-Term Incentive Plan.
In April 2001, the General Partner issued grants of 92,500 phantom units to certain key employees associated with the Partnerships initial public offering in February 2001. These awards allowed for early vesting if established performance measures were met prior to February 9, 2004. The Partnership met all of these performance measures and all of the awards vested during 2002. The Partnership recognized compensation expense of $0.7 million and $2.1 million associated with these awards in 2001 and 2002, respectively.
In April 2001, the General Partner granted 64,200 phantom units pursuant to the Long-Term Incentive Plan. With the change in control of the General Partner, which occurred on June 17, 2003, these awards vested at their maximum award level, resulting in 128,400 unit awards. The Partnership elected to settle these awards with cash payments instead of common units. The Partnership recognized compensation expense associated with these awards of $1.3 million, $1.5 million and $3.4 million during 2001, 2002 and 2003, respectively.
During 2002, the General Partner granted 22,650 phantom units pursuant to the Long-Term Incentive Plan. With the change in control of the General Partner, which occurred on June 17, 2003, these awards vested at their maximum award level, resulting in 45,300 unit awards. The Partnership elected to settle these awards with cash payments instead of common units. The Partnership recognized compensation expense associated with these awards of $0.2 million and $2.0 million in 2002 and 2003, respectively.
In February 2003, the General Partner granted 52,825 phantom units pursuant to the Long-Term Incentive Plan. The actual number of units that will be awarded under this grant are based on certain performance metrics, which were determined by the Partnership at the end of 2003, and a personal performance component that will be determined at the end of 2005, with vesting to occur at that time. Because 3,080 unit grants vested early (see
89
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
discussion below), the remaining number of units that could be awarded, excluding the personal performance component will range from zero units up to a total of 99,490 units. These units are subject to forfeiture if employment is terminated prior to the vesting date. These awards do not have an early vesting feature, except for: (i) the death or disability of a participant, or (ii) a change in control of the Partnerships general partner where the participant is terminated for reasons other than cause within the two years following the change in control of the General Partner, in which case the awards will vest and payout immediately at the highest performance level under the Plan. Subsequent to the change in control of the General Partner on June 17, 2003, certain awards under this grant vested at their maximum award level (two times the original grant), resulting in a cash payout associated with 6,160 unit awards. Until the payout of these awards, the Partnership was expensing compensation costs associated with the non-vested portion of these awards assuming 52,825 units would vest. Subsequent to the vesting of 6,160 awards previously mentioned, the Partnership began accruing compensation expense assuming 49,745 units would vest; however, during 2003, the Partnership increased the associated accrual to an expected payout of 95,271 units. Accordingly, the Partnership recorded incentive compensation expense of $1.7 million associated with these awards during 2003. The value of the 95,271 unit awards on December 31, 2003 was $4.8 million.
In October 2003, the General Partner granted 10,640 phantom units pursuant to the Long-Term Incentive Plan. Of these awards, 4,850 units vested on December 31, 2003. The remaining units will vest as follows: 470 units on July 31, 2004, 4,850 units on December 31, 2004 and 470 units on July 31, 2005. There are no performance metrics associated with these awards and the payouts cannot exceed the face amount of the units awarded. These units are subject to forfeiture if employment is terminated prior to the vesting date. These awards do not have an early vesting feature, except for: (i) the death or disability of a participant, or (ii) a change in control of the Partnerships general partner where the participant is terminated for reasons other than cause or the employee voluntarily terminates for good reason within the two years following the change in control of the General Partner. The Partnership recorded $0.3 million of compensation expense associated with these awards during 2003. The value of the 5,790 unvested awards at December 31, 2003 was $0.3 million.
Our equity-based incentive compensation costs for 2001, 2002 and 2003 are summarized as follows (in millions):
2001
|
2002
|
2003
|
Total
|
|||||||||
IPO awards |
$ | 0.7 | $ | 2.1 | $ | | $ | 2.8 | ||||
2001 awards |
1.3 | 1.5 | 3.4 | 6.2 | ||||||||
2002 awards |
| 0.2 | 2.0 | 2.2 | ||||||||
2003 awards |
| | 2.0 | 2.0 | ||||||||
|
|
|
|
|
|
|
|
|||||
Total |
$ | 2.0 | $ | 3.8 | $ | 7.4 | $ | 13.2 | ||||
|
|
|
|
|
|
|
|
16. Segment Disclosures
Management evaluates performance based upon segment operating margin, which includes revenues from affiliate and external customers, operating expenses, environmental expense and environmental reimbursements. The accounting policies of the segments are the same as those described in Note 3Summary of Significant Accounting Policies.
On June 17, 2003, Williams sold its interest in the Partnership to MMH. Prior to June 17, 2003, affiliate revenues from Williams were accounted for as if the sales were to unaffiliated third parties. Subsequent to June 17, 2003, the Partnership had no affiliate revenues. Also, prior to June 17, 2003, affiliate general and administrative costs, other than equity-based incentive compensation, were based on the expense limitations
90
COMPANY NAME
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
provided for in the Omnibus Agreement and were allocated to the business segments based on their proportional percentage of revenues. After June 17, 2003, all affiliate general and administrative costs were charged to the Partnership and allocated to the business segments based on a three-factor formula which considers total salaries, property, plant and equipment and operating revenue less cost of sales.
The Partnerships reportable segments are strategic business units that offer different products and services. The segments are managed separately because each segment requires different marketing strategies and business knowledge. Operating expenses and depreciation and amortization do not agree with the reported amounts on the income statements for the 2003 period due to the allocation of corporate depreciation charges to the segments as an operating expense.
Twelve Months Ended December 31, 2003
|
||||||||||||||||
Petroleum
Products Pipeline System |
Petroleum
Products Terminals |
Ammonia
Pipeline System |
Total
|
|||||||||||||
(in thousands) | ||||||||||||||||
Revenues: |
||||||||||||||||
Third-party customers |
$ | 381,094 | $ | 77,546 | $ | 12,608 | $ | 471,248 | ||||||||
Affiliate customers |
7,906 | 6,006 | | 13,912 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Total revenues |
389,000 | 83,552 | 12,608 | 485,160 | ||||||||||||
Operating expenses |
126,246 | 34,677 | 4,562 | 165,485 | ||||||||||||
Environmental |
13,256 | 389 | 444 | 14,089 | ||||||||||||
Environmental reimbursements |
(10,967 | ) | (359 | ) | (492 | ) | (11,818 | ) | ||||||||
Product purchases |
97,971 | 1,936 | | 99,907 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Operating margin |
162,494 | 46,909 | 8,094 | 217,497 | ||||||||||||
Depreciation and amortization |
22,320 | 11,804 | 1,084 | 35,208 | ||||||||||||
Affiliate general and administrative expenses |
39,214 | 15,179 | 2,453 | 56,846 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Segment profit |
$ | 100,960 | $ | 19,926 | $ | 4,557 | $ | 125,443 | ||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Segment assets |
$ | 670,229 | $ | 359,927 | $ | 28,936 | $ | 1,059,092 | ||||||||
Corporate assets |
135,532 | |||||||||||||||
|
|
|
||||||||||||||
Total assets |
$ | 1,194,624 | ||||||||||||||
|
|
|
||||||||||||||
Goodwill |
| 22,057 | | 22,057 | ||||||||||||
Additions to long-lived assets |
12,698 | 12,383 | 315 | 25,396 |
During 2003, the Partnership recorded a $5.5 million liability for paid-time off benefits associated with the employees supporting the Partnership. These costs, charged to 2003 operating and affiliate general and administrative expenses, resulted from MMHs acquisition of the Partnership and the Partnerships subsequent assumption of MMHs employee-related liabilities. These costs were charged to the Partnerships business segments as follows (in millions):
Petroleum
Products Pipeline System |
Petroleum
Products Terminals |
Ammonia
Pipeline System |
Total
|
|||||||||
Operating expense |
$ | 2.6 | $ | 0.8 | $ | | $ | 3.4 | ||||
Affiliate general and administrative expense |
1.5 | 0.5 | 0.1 | 2.1 | ||||||||
|
|
|
|
|
|
|
|
|||||
Total |
$ | 4.1 | $ | 1.3 | $ | 0.1 | $ | 5.5 | ||||
|
|
|
|
|
|
|
|
91
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
Also, as a result of Williams sale of its ownership interests in the Partnership to MMH, the Partnership was responsible for $5.9 million of costs to separate from Williams. Of these costs, $3.7 million was charged to affiliate general and administrative expense and was allocated to the business units as follows: $2.7 million to petroleum products pipeline, $0.9 million to petroleum products terminals and $0.1 million to the ammonia pipeline system.
Twelve Months Ended December 31, 2002
|
||||||||||||||||
Petroleum
Products Pipeline System |
Petroleum
Products Terminals |
Ammonia
Pipeline System |
Total
|
|||||||||||||
(in thousands) | ||||||||||||||||
Revenues: |
||||||||||||||||
Third-party customers |
$ | 299,875 | $ | 62,874 | $ | 13,135 | $ | 375,884 | ||||||||
Affiliate customers |
42,024 | 16,569 | | 58,593 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Total revenues |
341,899 | 79,443 | 13,135 | 434,477 | ||||||||||||
Operating expenses |
112,346 | 35,619 | 4,867 | 152,832 | ||||||||||||
Environmental |
17,514 | (788 | ) | 88 | 16,814 | |||||||||||
Environmental reimbursements |
(15,176 | ) | 768 | (92 | ) | (14,500 | ) | |||||||||
Product purchases |
63,982 | | | 63,982 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Operating margin |
163,233 | 43,844 | 8,272 | 215,349 | ||||||||||||
Depreciation and amortization |
22,992 | 11,447 | 657 | 35,096 | ||||||||||||
Affiliate general and administrative expenses |
32,779 | 8,921 | 1,482 | 43,182 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Segment profit |
$ | 107,462 | $ | 23,476 | $ | 6,133 | $ | 137,071 | ||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Segment assets |
$ | 647,771 | $ | 346,221 | $ | 37,646 | $ | 1,031,638 | ||||||||
Corporate assets |
88,721 | |||||||||||||||
|
|
|
||||||||||||||
Total assets |
$ | 1,120,359 | ||||||||||||||
|
|
|
||||||||||||||
Goodwill |
| 22,295 | | 22,295 | ||||||||||||
Additions to long-lived assets |
16,013 | 20,792 | 443 | 37,248 | ||||||||||||
Twelve Months Ended December 31, 2001
|
||||||||||||||||
Petroleum
Products Pipeline System |
Petroleum
Products Terminals |
Ammonia
Pipeline System |
Total
|
|||||||||||||
(in thousands) | ||||||||||||||||
Revenues: |
||||||||||||||||
Third-party customers |
$ | 284,174 | $ | 55,611 | $ | 14,544 | $ | 354,329 | ||||||||
Affiliate customers |
78,371 | 15,899 | | 94,270 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Total revenues |
362,545 | 71,510 | 14,544 | 448,599 | ||||||||||||
Operating expenses |
116,080 | 33,170 | 3,807 | 153,057 | ||||||||||||
Environmental |
7,486 | 3,477 | 596 | 11,559 | ||||||||||||
Environmental reimbursements |
| (3,377 | ) | (359 | ) | (3,736 | ) | |||||||||
Product purchases |
95,268 | | | 95,268 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Operating margin |
143,711 | 38,240 | 10,500 | 192,451 | ||||||||||||
Depreciation and amortization |
24,019 | 11,099 | 649 | 35,767 | ||||||||||||
Affiliate general and administrative expenses |
38,410 | 7,641 | 1,314 | 47,365 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Segment profit |
$ | 81,282 | $ | 19,500 | $ | 8,537 | $ | 109,319 | ||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Segment assets |
$ | 705,115 | $ | 354,579 | $ | 31,035 | $ | 1,090,729 | ||||||||
Corporate assets |
13,830 | |||||||||||||||
|
|
|
||||||||||||||
Total assets |
$ | 1,104,559 | ||||||||||||||
|
|
|
||||||||||||||
Goodwill |
| 22,282 | | 22,282 | ||||||||||||
Additions to long-lived assets |
24,232 | 64,590 | 330 | 89,152 |
92
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
17. Commitments and Contingencies
Williams has agreed to indemnify the Partnership against any covered environmental losses up to $15.0 million relating to assets it contributed to the Partnership at the time of the initial public offering. We refer to this indemnity in the table below as the IPO Indemnity. See Change in Ownership of General Partner in Note 1 for details regarding this indemnity. That same section of Note 1 further describes certain right-of-way indemnities associated with the ammonia pipeline easements and right-of-way defects or failures associated with the marine terminal facilities at Galena Park and Corpus Christi, Texas and Marrero, Louisiana.
In connection with the acquisition of Magellan Pipeline, Williams agreed to indemnify the Partnership for any breaches of representations or warranties, environmental liabilities and failures to comply with environmental laws as described below that result in losses and damages up to $110.0 million after the payment of an applicable $2.0 million deductible. With respect to any amount exceeding $110.0 million, Williams will be responsible for one-half of that amount up to $140.0 million. Williams liability under this indemnity is capped at $125.0 million. We refer to this indemnity in the table below as the Magellan Pipeline Indemnity. This indemnification obligation survived for one year, except for those obligations relating to employees, title, taxes and environmental. Obligations relating to employees and employee benefits will survive for the applicable statute of limitations and those obligations relating to real property, including asset titles, will survive for ten years after April 11, 2002, the date the Partnership acquired Magellan Pipeline. This indemnity also provides that the Partnership will be indemnified for an unlimited amount of losses and damages related to tax liabilities. In addition, any losses and damages related to environmental liabilities caused by events that occurred prior to the acquisition and for which claims are made within six years of the Partnerships acquisition of Magellan Pipeline will be subject to a $2.0 million deductible, which was met during 2002. Covered environmental losses include those losses arising from the correction of violations of, or performance of remediation required by, environmental laws in effect at April 11, 2002.
Williams has also indemnified the Partnership against environmental losses that occurred from February 2001 through June 17, 2003 for assets included in the Partnership at the time of its initial public offering and from April 2002 through June 17, 2003 for Magellan Pipeline assets as well as other items not covered by Williams preexisting indemnifications of the Partnership. See Change in Ownership of General Partner under Note 1Organization and Presentation for additional discussion of this matter. We refer to this indemnity in the table below as the Acquisition Indemnity.
Maximum
Indemnity Amount |
Claims
Against Indemnity |
Amount of
Indemnity Remaining |
|||||||
IPO Indemnity |
$ | 15.0 | $ | 3.4 | $ | 11.6 | |||
Magellan Pipeline Indemnity |
125.0 | 18.0 | 107.0 | ||||||
Acquisition Indemnity |
175.0 | 0.7 | 174.3 | ||||||
|
|
|
|
|
|
||||
Total |
$ | 315.0 | $ | 22.1 | $ | 292.9 | |||
|
|
|
|
|
|
Estimated liabilities for environmental costs were $22.3 million and $26.8 million at December 31, 2002 and 2003, respectively. These estimates, provided on an undiscounted basis, were determined based primarily on data provided by a third-party environmental evaluation service and internal environmental personnel. These liabilities have been classified as current or non-current based on managements estimates regarding the timing of actual payments. Management estimates that expenditures associated with these environmental remediation liabilities will be paid over the next five to ten years. As described in Change in Ownership of General Partner under Note 1, MMH assumed Williams obligations for $21.9 million of environmental liabilities, and the Partnership recorded a receivable from MMH for this amount. MMH reduced the amount it paid for Williams
93
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
ownership interest in the Partnership by the present value of the cash flows associated with the $21.9 million of environmental liabilities. To the extent the environmental and other Williams indemnity claims against MMH are not $21.9 million and to the extent no other indemnity obligations exist with Williams, MMH will pay to Williams the remaining difference between $21.9 million and the indemnity claims paid by MMH. Receivables from Williams or its affiliates associated with indemnified environmental costs were $7.8 million at December 31, 2003 and $22.9 million at December 31, 2002, and receivables from MMH at December 31, 2003 were $19.0 million. The Partnership invoices MMH, Williams and its affiliates or other third-party entities for its environmental indemnities as remediation work is performed.
In conjunction with the 1999 acquisition of the Gulf Coast marine terminals from Amerada Hess Corporation (Hess), Hess represented that it has disclosed to the Partnership all suits, actions, claims, arbitrations, administrative, governmental investigation or other legal proceedings pending or threatened, against or related to the assets acquired by the Partnership, which arise under environmental law. In the event that any pre-acquisition releases of hazardous substances at the Partnerships Corpus Christi and Galena Park, Texas and Marrero, Louisiana marine terminal facilities were unknown at closing but subsequently identified by the Partnership prior to July 30, 2004, the Partnership will be liable for the first $2.5 million of environmental liabilities, Hess will be liable for the next $12.5 million of losses and the Partnership will assume responsibility for any losses in excess of $15.0 million subject to Williams indemnities to the Partnership. Also, Hess agreed to indemnify the Partnership through July 30, 2014 against all known and required environmental remediation costs at the Corpus Christi and Galena Park, Texas marine terminal facilities from any matters related to pre-acquisition actions. Hess has indemnified the Partnership for a variety of pre-acquisition fines and claims that may be imposed or asserted against the Partnership under certain environmental laws.
During 2001, the Environmental Protection Agency (EPA), pursuant to Section 308 of the Clean Water Act, preliminarily determined that Williams may have systemic problems with petroleum discharges from pipeline operations. The inquiry primarily focused on Magellan Pipeline. The response to the EPAs information request was submitted during November 2001. The EPA has recently informed us that they have initiated a review of the response submitted in 2001. The Partnership believes any claims the EPA may assert relative to this inquiry is covered by Williams indemnifications to the Partnership.
During the fourth quarter of 2003, the Partnership experienced a line break and product spill on its petroleum products pipeline near Shawnee, Kansas, which resulted in the Partnership recognizing environmental liabilities of $4.3 million. The Partnership recorded a receivable from its insurance carrier of $2.6 million associated with this spill. This break occurred in a section of line near a previous break site that had been remediated by Williams. The Partnership believes the current break is covered by indemnifications from Williams and has filed a claim against Williams for the total amount of the estimated liability associated with this spill. Williams is currently evaluating our claim.
The Partnership is party to various other claims, legal actions and complaints arising in the ordinary course of business. In the opinion of management, the ultimate resolution of all claims, legal actions and complaints after consideration of amounts accrued insurance coverage or other indemnification arrangements will not have a material adverse effect upon the Partnerships future financial position, results of operations or cash flows.
94
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
18. Quarterly Financial Data (unaudited)
Summarized quarterly financial data is as follows (in thousands, except per unit amounts).
First
Quarter |
Second
Quarter |
Third
Quarter |
Fourth
Quarter |
|||||||||
2003 |
||||||||||||
Revenues |
$ | 119,715 | $ | 107,925 | $ | 122,176 | $ | 135,344 | ||||
Total costs and expenses |
81,605 | 79,833 | 90,329 | 107,950 | ||||||||
Net income |
29,058 | 18,859 | 22,271 | 17,981 | ||||||||
Basic net income per limited partner unit |
0.99 | 0.75 | 0.84 | 0.73 | ||||||||
Diluted net income per limited partner unit |
0.99 | 0.75 | 0.84 | 0.73 | ||||||||
2002 |
||||||||||||
Revenues |
$ | 102,648 | $ | 104,124 | $ | 113,376 | $ | 114,329 | ||||
Total costs and expenses |
73,896 | 67,433 | 79,077 | 77,000 | ||||||||
Net income |
21,126 | 24,628 | 25,833 | 27,566 | ||||||||
Basic net income per limited partner unit |
0.73 | 1.05 | 0.90 | 0.95 | ||||||||
Diluted net income per limited partner unit |
0.72 | 1.05 | 0.90 | 0.95 |
First-quarter 2003 results were favorably impacted by a $3.0 million contract settlement. Second-quarter 2003 results included the impact of costs associated with the change in the Partnerships general partner which included: (i) paid-time off accruals of $4.9 million, early vesting of equity-based incentive compensation awards of $2.9 million and transition costs of $0.6 million. Third-quarter 2003 results included $1.4 million of transition costs. Fourth quarter 2003 results included $1.8 million of pipeline remediation costs associated with a product spill, $2.3 million of transition costs and $1.6 million of asset write-offs.
Basic and diluted net income for the second, third and fourth quarters of 2002 include the impact of the Partnerships ownership of Magellan Pipeline. Fourth quarter 2002 net income included a gain of $1.1 million on the sale of the inland terminals. Second, third and fourth quarter net income for 2002 was impacted by the amortization of debt placement costs of $7.1 million associated with the short-term note assumed at the time of the Magellan Pipeline acquisition by the Partnership and interest expense associated with that note. Fourth quarter results were impacted by the amortization of the $2.1 million debt placement costs associated with the extension of the maturity date of the Magellan short-term note and interest expense on the new $480.0 million borrowings by Magellan Pipeline.
19. Fair Value of Financial Instruments
The following methods and assumptions were used by the Partnership in estimating its fair value disclosure for financial instruments:
Cash and cash equivalents and restricted cash: The carrying amounts reported in the balance sheet approximate fair value due to the short-term maturity of these instruments.
Long-term affiliate receivables: Fair value is determined by discounting estimated cash flows by the Partnerships incremental borrowing rates.
Long-term receivables: Generally, fair value is determined by discounting estimated future cash flows by the rates inherent in the long-term instruments plus/minus the change in the risk-free rate since inception of the instrument.
Long-term debt: During 2002, the Partnership had all variable-rate debt until late in the year, when part of the debt was replaced with fixed-rate debt, consequently, the carrying amount of debt approximated fair
95
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
value at December 31, 2002. For 2003, the carrying amount of the Partnerships variable-rate debt approximates fair value and the fair value of the Partnerships fixed-rate debt was determined by discounting estimated future cash flows using the Partnerships incremental borrowing rate.
The following table reflects the carrying amounts and fair values of the Partnerships financial instruments as of December 31, 2002 and 2003 (in thousands):
December 31, 2002
|
December 31, 2003
|
|||||||||||
Carrying
Amount |
Fair Value
|
Carrying
Amount |
Fair Value |
|||||||||
Cash and cash equivalents |
$ | 75,151 | $ | 75,151 | $ | 111,357 | $ | 111,357 | ||||
Restricted cash |
4,942 | 4,942 | 8,223 | 8,223 | ||||||||
Long-term affiliate receivables |
11,656 | 9,716 | 13,472 | 11,408 | ||||||||
Long-term receivables |
9,268 | 7,910 | 9,077 | 8,032 | ||||||||
Long-term debt |
570,000 | 570,000 | 570,000 | 577,510 |
20. Distributions
Distributions paid by the Partnership during 2001, 2002 and 2003 are as follows (in thousands, except per unit amounts):
Date Cash Distribution Paid |
Per Unit Cash
Amount |
Common Units |
Subordinated Units |
Class B Common Units |
General Partner Equivalent Units |
Total Cash Distribution |
||||||||||||
05/15/01(a) |
$ | 0.2920 | $ | 1,658 | $ | 1,658 | $ | | $ | 69 | $ | 3,385 | ||||||
08/14/01 |
0.5625 | 3,195 | 3,195 | | 130 | 6,520 | ||||||||||||
11/14/01 |
0.5775 | 3,281 | 3,281 | | 132 | 6,694 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Total |
$ | 1.4320 | $ | 8,134 | $ | 8,134 | $ | | $ | 331 | $ | 16,599 | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
02/14/02 |
$ | 0.5900 | $ | 3,351 | $ | 3,351 | $ | | $ | 159 | $ | 6,861 | ||||||
05/15/02 |
0.6125 | 3,479 | 3,479 | | 204 | 7,162 | ||||||||||||
08/14/02 |
0.6750 | 9,234 | 3,834 | 5,286 | 868 | 19,222 | ||||||||||||
11/14/02 |
0.7000 | 9,576 | 3,978 | 5,482 | 1,092 | 20,128 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Total |
$ | 2.5775 | $ | 25,640 | $ | 14,642 | $ | 10,768 | $ | 2,323 | $ | 53,373 | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
02/14/03 |
$ | 0.7250 | $ | 9,918 | $ | 4,118 | $ | 5,677 | $ | 1,321 | $ | 21,034 | ||||||
05/15/03 |
0.7500 | 10,260 | 4,260 | 5,873 | 1,548 | 21,941 | ||||||||||||
08/14/03 |
0.7800 | 10,670 | 4,430 | 6,108 | 1,820 | 23,028 | ||||||||||||
11/14/03 |
0.8100 | 11,081 | 4,601 | 6,343 | 2,499 | 24,524 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Total |
$ | 3.0650 | $ | 41,929 | $ | 17,409 | $ | 24,001 | $ | 7,188 | $ | 90,527 | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
(a) | This distribution represented the prorated minimum quarterly distribution for the 50-day period following the initial public offering closing date, which included February 10, 2001 through March 31, 2001. |
On February 13, 2004, the Partnership paid cash distributions of $0.83 per unit on its outstanding common and subordinated units to unitholders of record at the close of business on February 6, 2004. The total distribution, including distributions paid to the General Partner on its equivalent units, was $25.8 million.
96
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
21. Net Income Per Unit
The following table provides details of the basic and diluted net income per unit computations (in thousands, except per unit amounts):
For The Year Ended December 31, 2003
|
||||||||
Income (Numerator) |
Units (Denominator) |
Per Unit Amount |
||||||
Limited partners interest in income |
$ | 90,191 | ||||||
Basic net income per limited partner unit |
$ | 90,191 | 27,195 | $ | 3.32 | |||
Effect of dilutive restrictive unit grants |
| 40 | .01 | |||||
|
|
|
|
|
||||
Diluted net income per limited partner unit |
$ | 90,191 | 27,235 | $ | 3.31 | |||
|
|
|
|
|
||||
For The Year Ended December 31, 2002
|
||||||||
Income (Numerator) |
Units (Denominator) |
Per Unit Amount |
||||||
Limited partners interest in income |
$ | 80,713 | ||||||
Basic net income per limited partner unit |
$ | 80,713 | 21,911 | $ | 3.68 | |||
Effect of dilutive restrictive unit grants |
| 57 | 0.01 | |||||
|
|
|
|
|
||||
Diluted net income per limited partner unit |
$ | 80,713 | 21,968 | $ | 3.67 | |||
|
|
|
|
|
For The Year Ended December 31, 2001
|
||||||||
Income
(Numerator) |
Units
(Denominator) |
Per Unit
Amount |
||||||
Limited partners interest in income applicable to the period after February 9, 2001 |
$ | 21,217 | ||||||
Basic net income per limited partner unit |
$ | 21,217 | 11,359 | $ | 1.87 | |||
Effect of dilutive restrictive unit grants |
| 11 | | |||||
|
|
|
|
|
||||
Diluted net income per limited partner unit |
$ | 21,217 | 11,370 | $ | 1.87 | |||
|
|
|
|
|
Units reported as dilutive securities are related to restricted unit grants associated with the one-time initial public offering award (see Note 15Long-Term Incentive Plan).
22. Partners Capital
Of the 21,710,618 common units outstanding at December 31, 2003, the public holds 17,775,000, with the remaining 3,935,618 held by affiliates of the Partnership. All of the 5,679,694 subordinated units are held by affiliates of the Partnership. The 7,830,924 class B common units that were outstanding at December 31, 2002, were converted to common units during 2003.
During the subordination period, the Partnership can issue up to 2,839,847 additional common units without obtaining unitholder approval. In December 2003, the Partnership issued 200,000 units to the public, which reduced the number of additional common units it can issue without unitholder approval to 2,639,847. The General Partner can issue an unlimited number of common units as follows:
| upon exercise of the underwriters over-allotment option; |
| upon conversion of the subordinated units; |
| under employee benefit plans; |
97
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
| upon conversion of the general partner interest and incentive distribution rights as a result of a withdrawal of the General Partner; |
| in the event of a combination or subdivision of common units; |
| in connection with an acquisition or a capital improvement that increases cash flow from operations per unit on a pro forma basis; or |
| if the proceeds of the issuance are used exclusively to repay up to $40.0 million of our indebtedness. |
The subordination period will end when the Partnership meets certain financial tests provided for in the Partnership agreement but it generally cannot end before December 31, 2005.
The limited partners holding common units of the Partnership have the following rights, among others:
| right to receive distributions of the Partnerships available cash within 45 days after the end of each quarter; |
| right to elect the board members of the Partnerships general partner; |
| right to remove Magellan GP, LLC as the General Partner upon a 66.7% majority vote of outstanding unitholders; |
| right to transfer common unit ownership to substitute limited partners; |
| right to receive an annual report, containing audited financial statements and a report on those financial statements by our independent public accountants within 120 days after the close of the fiscal year end; |
| right to receive information reasonably required for tax reporting purposes within 90 days after the close of the calendar year; |
| right to vote according to the limited partners percentage interest in the Partnership on any meeting that may be called by the General Partner; and |
| right to inspect our books and records at the unitholders own expense. |
Net income is allocated to the General Partner and limited partners based on their proportionate share of cash distributions for the period. Cash distributions to the General Partner and limited partners are made based on the following table:
Percentage of
Distributions |
||||
Quarterly Distribution Amount (per unit) |
Limited
Partners |
General
Partner |
||
Up to $0.578 |
98 | 2 | ||
Above $0.578 up to $0.656 |
85 | 15 | ||
Above $0.656 up to $0.788 |
75 | 25 | ||
Above $0.788 |
50 | 50 |
In the event of liquidation, all property and cash in excess of that required to discharge all liabilities will be distributed to the partners in proportion to the positive balances in their respective tax-basis capital accounts. The limited partners liability is generally limited to their investment.
23. Subsequent Events
In January 2004, the underwriters exercised their over-allotment option associated with MMHs unit offering completed in December 2003. As a result, MMH sold an additional 675,000 common units that they held of the Partnership, with all of the proceeds from this sale going to MMH.
98
MAGELLAN MIDSTREAM PARTNERS, L.P.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
On January 29, 2004, the Partnership announced that it had acquired ownership in 14 refined petroleum products terminals located in the southeastern United States for $24.8 million. The partnership previously owned a 79% interest in eight of these terminals and purchased the remaining interest from Murphy Oil USA, Inc. In addition, the acquisition includes sole ownership of six terminals that were previously jointly owned by Murphy Oil USA, Inc. and Colonial Pipeline Company.
On February 13, 2004, the Partnership paid cash distributions of $0.83 per unit on its outstanding common and subordinated units to unitholders of record at the close of business on February 6, 2004. The total distribution was approximately $25.8 million.
Also, associated with the declaration and payment of the cash distributions in February 2004, 25% of the partnerships subordinated units, or 1,419,923 units, converted to common units on the record date of February 6, 2004. Magellans partnership agreement provides for the conversion because quarterly distributions have equaled or exceeded the Partnerships $0.525 per unit minimum quarterly distribution for three consecutive years.
In February 2004, the Partnership entered into three separate agreements with two different banks for forward interest rate swaps totaling $150.0 million. The swaps begin in October 2007, when the Partnership expects to refinance the majority of Magellan Pipelines $480.0 million senior secured notes. Under the swap agreements, the Partnership will pay fixed interest rates and will receive LIBOR in return for a ten-year period, which is the assumed tenure of replacement debt. The average fixed rate on the swap is 5.9%.
On March 2, 2004, the Partnership acquired a 50% ownership in Osage Pipe Line Company, LLC, which owns the Osage pipeline, for $25.0 million from National Cooperative Refinery Association (NCRA). The 135-mile Osage pipeline transports crude oil from Cushing, Oklahoma to El Dorado, Kansas and has connections to the NCRA refinery in McPherson, Kansas and the Frontier refinery in El Dorado, Kansas. The remaining 50% interest in the Osage Pipe Line Company, LLC will continue to be owned by NCRA.
99
ITEM 9. | Changes in and Disagreement with Accountants on Accounting and Financial Disclosure |
None
ITEM 9A. | Controls and Procedures |
An evaluation of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in rule 13a-14(c) of the Securities Exchange Act) was performed as of the end of the period covered by the date of this report. This evaluation was performed under the supervision and with the participation of our management, including the General Partners Chief Executive Officer and Chief Financial Officer. Based upon that evaluation, the General Partners Chief Executive Officer and Chief Financial Officer concluded that these disclosure controls and practices are effective in providing reasonable assurance that all required disclosures are included in the current report.
The Partnerships management, including the General Partners Chief Executive Officer and Chief Financial Officer, does not expect that the Partnerships disclosure controls or its internal controls over financial reporting (internal controls) will prevent all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, controls may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected. The Partnership monitors its disclosure controls and internal controls and makes modifications as necessary; the Partnerships intent in this regard is that the disclosure controls and the internal controls will be maintained as systems change and conditions warrant.
We have furnished as a correspondence filing to the Securities and Exchange Commission the certifications of this report by the General Partners Chief Executive Officer and Chief Financial Officer as required pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
PART III
ITEM 10. | Directors and Executive Officers of the Registrant |
The information regarding the directors and executive officers of our general partner required by Item 401 of Regulation S-K will be presented in our proxy statement prepared for the solicitation of proxies in connection with our Annual Meeting of Limited Partners for 2004 (our Proxy Statement) under the captions Names and Business Experience of the Class II Nominees and Other Directors and Executive Officers of our General Partner, which information is incorporated by reference herein. Information required by Item 405 of Regulation S-K will be presented under the caption Compliance with Section 16(a) of the Exchange Act in our Proxy Statement, which information is incorporated by reference herein. Information required by Item 406 of Regulation S-K will be presented under the caption Code of Ethics in our Proxy Statement, which information is incorporated by reference herein.
ITEM 11. | Executive Compensation |
The information regarding executive compensation required by Item 402 of Regulation S-K will be presented in our Proxy Statement under the caption Executive Compensation, which information is incorporated by reference herein.
100
ITEM 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
The information regarding securities authorized for issuance under equity compensation plans required by Item 201(d) of Regulation S-K will be presented in our Proxy Statement under the caption Equity Compensation Plans, which information is incorporated by reference herein. Information required by Item 403 of Regulation S-K will be presented under the caption Security Ownership of Certain Beneficial Owners and Management in our Proxy Statement, which information is incorporated by reference herein.
ITEM 13. | Certain Relationships and Related Transactions |
The information regarding certain relationships and related transactions required by Item 404 of Regulation S-K will be presented in our Proxy Statement under the caption Certain Relationships and Related Transactions, which information is incorporated by reference herein.
ITEM 14. | Principal Accountant Fees and Services |
The information regarding principal accountant fees and services required by Item 9(e) of Schedule 14A of the Securities Exchange Act of 1934 will be presented in our Proxy Statement under the caption Independent Public Accountants, which information is incorporated by reference herein.
PART IV
ITEM 15. | Exhibits, Financial Statement Schedules and Reports on Form 8-K |
(a) 1 and 2.
Page
|
||
Covered by reports of independent auditors: |
||
Consolidated statements of income for the three years ended December 31, 2003 |
61 | |
Consolidated balance sheets at December 31, 2003 and 2002 |
62 | |
Consolidated statements of cash flows for the three years ended December 31, 2003 |
63 | |
Consolidated statement of partners capital |
64 | |
Notes 1 through 23 to consolidated financial statements |
65 | |
Not covered by reports of independent auditors: |
||
Quarterly financial data (unaudited)see Note 18 to consolidated financial statements |
95 |
All other schedules have been omitted since the required information is not present or is not present in amounts sufficient to require submission of the schedule, or because the information required is included in the financial statements and notes thereto.
(a) 3 and (c). The exhibits listed below are filed as part of this annual report.
Exhibit No. |
Description |
|
Exhibit 2 | ||
*(a) | Purchase Agreement dated April 18, 2003 among Williams Energy Services, LLC, Williams Natural Gas Liquids, Inc., Williams GP LLC and WEG Acquisitions, L.P. (filed as Exhibit 99.1 to Form 8-K of The Williams Companies, Inc. filed April 21, 2003). |
101
102
103
Exhibit No. |
Description |
|
Exhibit 14 | ||
(a) | Code of Ethics dated September 1, 2003 by Don R. Wellendorf, principal executive officer. | |
(b) | Code of Ethics dated September 1, 2003 by John D. Chandler, principal financial and accounting officer. | |
Exhibit 21 | Subsidiaries of Magellan GP, LLC and Magellan Midstream Partners, L.P. | |
Exhibit 23 | Consent of Independent Auditor. | |
Exhibit 24 | Power of Attorney together with certified resolution. | |
Exhibit 31 | ||
(a) | Certification of Don R. Wellendorf, principal executive officer. | |
(b) | Certification of John D. Chandler, principal financial officer. | |
Exhibit 32 | ||
(a) | Section 1350 Certification of Don R. Wellendorf, Chief Executive Officer. | |
(b) | Section 1350 Certification of John D. Chandler, Chief Financial Officer. | |
Exhibit 99 | Magellan GP, LLC consolidated balance sheet at December 31, 2003 and notes thereto. |
* | Each such exhibit has heretofore been filed with the Securities and Exchange Commission as part of the filing indicated and is incorporated herein by reference. |
(b) Reports on Form 8-K.
On October 15, 2003, we filed a report on Form 8-K under Item 7, which set forth our general partners consolidated balance sheet as of July 31, 2003 and December 31, 2002 with accompanying notes.
On October 27, 2003, we furnished a report on Form 8-K under Items 9 and 12, which discussed our earnings press release for the third quarter of 2003.
On November 24, 2003, we filed a report on Form 8-K dated November 21, 2003 under Items 5 and 7, which announced the approval by our common unitholders at our Annual Meeting of Limited Partners of the conversion of our class B common units into common units.
On December 11, 2003, we filed a report on Form 8-K under Item 5, which reiterated our 2003 earnings guidance and provided earnings guidance for 2004.
On December 19, 2003, we filed a report on Form 8-K dated December 18, 2003 under Items 5 and 7, which discussed a primary and secondary offering of our common units and attached certain agreements material to the offering.
On December 23, 2003, we filed a report on Form 8-K/A dated December 19, 2003 under Item 5, which amended the Form 8-K filed December 19, 2003 in order to correct a typographical error in our press release provided as an exhibit thereto.
(d) At December 31, 2003, we had no partially owned entities.
104
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
M AGELLAN M IDSTREAM P ARTNERS , L.P. (Registrant) |
||
By: | MAGELLAN GP, LLC, its General Partner | |
By: | / S / L ONNY E. T OWNSEND | |
|
||
Lonny E. Townsend, General Counsel Attorney-in-fact |
Date: March 10, 2004
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacity and on the dates indicated.
Name |
Title |
Date |
||
/ S / D ON R. W ELLENDORF * Don R. Wellendorf |
Chairman of the Board, President Chief Executive Officer and Director of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 | ||
/ S / J OHN D. C HANDLER * John D. Chandler |
Treasurer and Chief Financial Officer of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 | ||
/ S / P ATRICK C. E ILERS * Patrick C. Eilers |
Director of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 | ||
/ S / J USTIN S. H USCHER * Justin S. Huscher |
Director of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 | ||
/ S / P IERRE F. L APEYRE , J R .* Pierre F. Lapeyre, Jr. |
Director of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 | ||
/ S / D AVID M. L EUSCHEN * David M. Leuschen |
Director of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 | ||
/ S / J AMES R. M ONTAGUE * James R. Montague |
Director of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 |
105
Name |
Title |
Date |
||
/ S / G EORGE A. OB RIEN , J R .* George A. OBrien, Jr. |
Director of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 | ||
/ S / M ARK G. P APA * Mark G. Papa |
Director of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P. |
March 10, 2004 |
*By: |
/ S / L ONNY E. T OWNSEND Lonny E. Townsend, General Counsel Attorney-in-fact |
March 10, 2004 |
106
INDEX TO EXHIBITS
Exhibit No. |
Description |
|
Exhibit 2 | ||
*(a) | Purchase Agreement dated April 18, 2003 among Williams Energy Services, LLC, Williams Natural Gas Liquids, Inc., Williams GP LLC and WEG Acquisitions, L.P. (filed as Exhibit 99.1 to Form 8-K of The Williams Companies, Inc. filed April 21, 2003). | |
*(b) | Amendment No. 1 dated May 5, 2003 to Purchase Agreement dated April 18, 2003 among Williams Energy Services, LLC, Williams Natural Gas Liquids, Inc., Williams GP LLC and WEG Acquisitions, L.P. (filed as Exhibit 99.2 to Schedule 13D/A filed June 20, 2003). | |
(c) | Amendment No. 2 dated January 6, 2004, to Purchase Agreement dated April 18, 2003, among Williams Energy Services, LLC, Williams Natural Gas Liquids, Inc., Williams GP LLC and WEG Acquisitions, L.P. | |
Exhibit 3 | ||
*(a) | Certificate of Limited Partnership of Williams Energy Partners L.P. dated August 30, 2000, as amended on November 15, 2002 and August 12, 2003 (filed as Exhibit 3.1 to Form 10-Q filed November 10, 2003). | |
*(b) | Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P. dated September 30, 2002 (filed as Exhibit 10.3 to Form 10-Q filed November 14, 2002). | |
*(c) | Amendment No. 1 to Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P. dated November 15, 2002 (filed as Exhibit 3.1 to Form 8-K filed November 19, 2002). | |
*(d) | Amendment No. 2 to Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P. dated November 15, 2002 (filed as Exhibit 3.2 to Form 8-K filed November 19, 2002). | |
(e) | Amendment No. 3 to Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P. dated December 12, 2003. | |
(f) | Amended and Restated Certificate of Formation of WEG GP LLC dated November 15, 2002, as amended on August 12, 2003. | |
(g) | Amended & Restated Limited Liability Company Agreement of Magellan GP, LLC dated December 1, 2003. | |
(h) | Amendment No. 1 dated February 3, 2004 to Amended & Restated Limited Liability Company Agreement of Magellan GP, LLC dated December 1, 2003. | |
*(i) | Reorganization Agreement dated March 4, 2002, among Williams Energy Partners L.P., Williams OLP, L.P., Williams GP LLC and Williams GP Inc. (filed as Exhibit 3(d) to Form 10-K filed March 7, 2002). | |
*(j) | Contribution Agreement dated April 11, 2002 between Williams Energy Partners L.P., Williams GP LLC and Williams Energy Services, LLC (filed as Exhibit 10 to Form 8-K filed April 19, 2002). | |
Exhibit 4 | ||
*(a) | Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P. dated September 30, 2002 (filed as Exhibit 10.3 to Form 10-Q filed November 14, 2002). | |
*(b) | Amendment No. 1 to Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P. dated November 15, 2002 (filed as Exhibit 3.1 to Form 8-K filed November 19, 2002). | |
*(c) | Amendment No. 2 to Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P. dated November 15, 2002 (filed as Exhibit 3.2 to Form 8-K filed November 19, 2002). |
107
108
Exhibit No. |
Description |
|
*(q) | Collateral Agency Agreement dated October 1, 2002 (filed as Exhibit 10.8 to Form 10-Q filed November 14, 2002). | |
Exhibit 14 | ||
(a) | Code of Ethics dated September 1, 2003 by Don R. Wellendorf, principal executive officer. | |
(b) | Code of Ethics dated September 1, 2003 by John D. Chandler, principal financial and accounting officer. | |
Exhibit 21 | Subsidiaries of Magellan GP, LLC and Magellan Midstream Partners, L.P. | |
Exhibit 23 | Consent of Independent Auditor. | |
Exhibit 24 | Power of Attorney together with certified resolution. | |
Exhibit 31 | ||
(a) | Certification of Don R. Wellendorf, principal executive officer. | |
(b) | Certification of John D. Chandler, principal financial officer. | |
Exhibit 32 | ||
(a) | Section 1350 Certification of Don R. Wellendorf, Chief Executive Officer. | |
(b) | Section 1350 Certification of John D. Chandler, Chief Financial Officer. | |
Exhibit 99 | Magellan GP, LLC consolidated balance sheet at December 31, 2003 and notes thereto. |
* | Each such exhibit has heretofore been filed with the Securities and Exchange Commission as part of the filing indicated and is incorporated herein by reference. |
109
Exhibit 2(c)
Execution Copy
AMENDMENT NO. 2
to
PURCHASE AGREEMENT,
dated as of April 18, 2003,
by and among
WILLIAMS ENERGY SERVICES, LLC,
WILLIAMS NATURAL GAS LIQUIDS, INC. and
WILLIAMS GP LLC
collectively, as Selling Parties,
and
WEG ACQUISITIONS, L.P.
a Delaware limited partnership,
as Buyer,
for the purchase and sale of
(i) all the membership interests of
WEG GP LLC
a Delaware limited liability company,
(ii) all of the Common Units and Subordinated Units of
WILLIAMS ENERGY PARTNERS L.P.
a Delaware limited partnership
owned by Williams Energy Services, LLC and Williams Natural Gas Liquids, Inc.
and
(iii) all the Class B Common Units of
WILLIAMS ENERGY PARTNERS L.P.
a Delaware limited partnership
dated as of January 6, 2004
AMENDMENT NO. 2
to
PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO PURCHASE AGREEMENT (this Amendment No. 2 ) is made and entered into as of this 6th day of January 2004, by and among WILLIAMS ENERGY SERVICES, LLC, a Delaware limited liability company ( WES ), WILLIAMS NATURAL GAS LIQUIDS, INC., a Delaware corporation ( WNGL ), and WILLIAMS GP LLC, a Delaware limited liability company (the Old Company, and collectively with WES and WNGL, the Selling Parties ), and MAGELLAN MIDSTREAM HOLDINGS, L.P., formerly WEG Acquisitions, L.P., a Delaware limited partnership ( Buyer ).
W I T N E S S E T H:
WHEREAS, the Selling Parties and Buyer entered into the Purchase Agreement, dated as of April 18, 2003 (the Purchase Agreement ), pursuant to which, on the terms and subject to the conditions set forth therein, the Selling Parties sold, and Buyer purchased, at the Closing the Securities (as such terms are defined in the Purchase Agreement); and
WHEREAS, in accordance with Section 9.8 of the Purchase Agreement, the Selling Parties and Buyer have agreed to enter into this Amendment No. 2 to amend the Purchase Agreement to the extent, and only to the extent, specified below;
NOW, THEREFORE, in consideration of the mutual terms, conditions and other agreements set forth herein and in the Purchase Agreement, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
Section 1.1. Amendment. The Purchase Agreement is hereby amended by deleting Schedule 1.3 attached thereto and replacing it with Schedule 1.3 attached to this Amendment No. 2.
ARTICLE I I
MISCELLANEOUS
Section 2.1. Signatures and Counterparts. Facsimile transmissions of any signed original document and/or retransmission of any signed facsimile transmission shall be the same as delivery of an original. At the request of Buyer or the Selling Parties, the parties will confirm facsimile transmission by signing a duplicate original document. This Amendment No. 2 may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same document.
Section 2.2. Governing Law. This Amendment No. 2 shall be governed by and construed in accordance with the internal and substantive laws of New York and without regard to any conflicts of laws concepts that would apply the substantive law of some other jurisdiction.
Section 2.3. Continuation of Purchase Agreement. To the extent not amended hereby, the Purchase Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 as of the date first above written.
SELLING PARTIES: |
WILLIAMS ENERGY SERVICES, LLC |
|||
By: |
/s/ Travis N. Campbell |
|||
Name: |
Travis N. Campbell |
|||
Title: |
Treasurer |
|||
WILLIAMS NATURAL GAS LIQUIDS, INC. |
||||
By: |
/s/ Travis N. Campbell |
|||
Name: |
Travis N. Campbell |
|||
Title: |
Assistant Treasurer |
|||
WILLIAMS GP LLC |
||||
By: |
WILLIAMS ENERGY SERVICES, LLC and |
|||
WILLIAMS NATURAL GAS LIQUIDS, INC., |
||||
Its Members |
||||
By: |
/s/ Travis N. Campbell |
|||
Name: |
Travis N. Campbell |
|||
Title: |
Treasurer/Assistant Treasurer |
|||
BUYER: |
MAGELLAN MIDSTREAM HOLDINGS, L.P. |
|||
By: |
MAGELLAN MIDSTREAM MANAGEMENT, LLC |
|||
Its General Partner |
||||
By: |
/s/ Don R. Wellendorf |
|||
Name: |
Don R. Wellendorf |
|||
Title: |
President and CEO |
Schedule 1.3
Purchase Price Allocation
(dollars in table in millions)
(1) | Allocated purchase price of $530.6 million includes (i) First Payment of approximately $509.9 million, (ii) Second Payment of approximately $1.9 million and (iii) the assumption under the Fourth Payment of certain environmental indemnity obligations valued at approximately $18.9 million on the Closing Date, and excludes financing and other transaction fees and expenses. The Third Payment will, to the extent required to be paid, be allocated on a pro rata basis to the Common Units and the Class B Common units at the time of any such payment. |
(2) | Includes the assumption under the Fourth Payment of certain environmental indemnity obligations valued at approximately $18.9 million on the Closing Date. |
Exhibit 3(e)
AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
WILLIAMS ENERGY PARTNERS L.P.
THIS AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF WILLIAMS ENERGY PARTNERS L.P. (this Amendment), dated as of December 12, 2003, is entered into and effectuated by Magellan GP, LLC (formerly known as WEG GP LLC), a Delaware limited liability company, as the General Partner, pursuant to authority granted to it in Article 13 of the Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P. dated as of September 27, 2002, as amended (the Partnership Agreement). Capitalized terms used but not defined herein are used as defined in the Partnership Agreement.
WHEREAS, Section 13.1 of the Partnership Agreement provides that the General Partner, without the approval of any Partner, may amend any provision of the Partnership Agreement to reflect a change that, in the discretion of the General Partner, 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; and
WHEREAS, the General Partner deems it to be in the best interest of the Partnership to effect this Amendment in order to (1) simplify the Partnerships accounting and tax reporting for (A) the required reimbursement by the Partnership of certain general and administrative expenses to the General Partner and (B) the obligation of certain Affiliates of the General Partner to fund the satisfaction of certain Assumed Environmental Indemnification Obligations (as defined below) of the Partnership, (2) clarify the certain circumstances under which Parity Units may be issued during the Subordination Period and (3) reflect various name changes.
NOW, THEREFORE, the Partnership Agreement is hereby amended as follows:
Section 1. The following definitions shall be added to Section 1.1 of the Partnership Agreement:
(a) Assumed Environmental Indemnification Obligations means the obligation of Holdings to indemnify the Partnership Group for certain environmental remedial obligations pursuant to the Purchase Agreement dated as of April 18, 2003, as amended, among WEG Acquisitions, L.P., Williams Energy Services, LLC, Williams Natural Gas Liquids, Inc. and Williams GP LLC pursuant to which Holdings purchased all of the General Partner Interests, Class B Common Units and Subordinated Units and certain Common Units.
(b) Excess G&A Expenses means the excess of (i) the amount of any general and administrative expenses required to be reimbursed to the General Partner pursuant to Section 7.4, over (ii) the amount of such expenses permitted to be reimbursed by the Partnership Group pursuant to Article VII of the Omnibus Agreement.
(c) Holdings means Magellan Midstream Holdings, L.P. (formerly known as WEG Acquisitions, L.P. prior to September 1, 2003), a Delaware limited partnership.
Section 2. The following definitions in Section 1.1 of the Partnership Agreement shall be amended and restated in their entirety to read as follows:
(a) General Partner means Magellan GP, LLC (formerly known as WEG GP LLC prior to September 1, 2003), a Delaware limited liability company, and its successors and permitted assigns as general partner of the Partnership.
(b) Operating General Partner means Magellan GP, Inc. (formerly known as Williams GP Inc. prior to September 1, 2003), a Delaware corporation and wholly owned subsidiary of the Partnership, and any successors and permitted assigns as the general partner of the Operating Partnership.
(c) Operating Partnership means Magellan OLP, L.P. (formerly known as Williams OLP, L.P. prior to September 1, 2003), a Delaware limited partnership, and such other Persons that are treated as partnerships for federal income tax purposes that are majority-owned by the Partnership and controlled by the Partnership (whether by direct or indirect ownership of the general partner of such Person or otherwise) and established or acquired for the purpose of conducting the business of the Partnership.
(d) Partnership means Magellan Midstream Partners, L.P. (formerly known as Williams Energy Partners L.P. prior to September 1, 2003), a Delaware limited partnership, and any successors thereto.
Section 3. Section 5.2(c) is hereby added to the Partnership Agreement and shall read in its entirety as follows:
(c) On each date provided for reimbursement of expenses to the General Partner pursuant to Section 7.4(b), the General Partner shall contribute an amount to the Partnership, as a Capital Contribution, equal to the amount of any Excess G&A Expenses outstanding on such date.
Section 4. Section 5.2(d) is hereby added to the Partnership Agreement and shall read in its entirety as follows:
(d) Each payment by the General Partner or an Affiliate (other than a Group Member) in satisfaction of all or any portion of the Assumed Environmental Indemnification Obligations shall be treated as a Capital Contribution to the Partnership by the General Partner in the amount of such payment.
Section 5. Section 6.1(d)(xiii) is hereby added to the Partnership Agreement and shall read in its entirety as follows:
(xiii) Any deduction or loss attributable to the Partnerships obligation to reimburse the General Partner for, or incurred by the Partnership and constituting, Excess G&A Expenses, which the General Partner has funded or agreed to fund pursuant to Section 5.2(c), and any deduction or loss attributable to environmental losses, costs, damages and expenses suffered or incurred by a Group Member, which the General Partner or an Affiliate (other than a Group Member) has reimbursed or agreed to reimburse and which constitute Assumed Environmental Indemnification Obligations, shall be allocated to the General Partner.
2
Section 6. Section 7.4(b) is hereby amended and restated to read in its entirety as follows:
(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 payments made for the benefit of the Partnership to or on behalf of the Operating General Partner and including salary, bonus, incentive compensation and other amounts paid to any Person including Affiliates of the General Partner to perform services for the Partnership, any Group Member 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 Partnerships 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. To the extent the Partnership is obligated to reimburse the General Partner for expenses pursuant to this Section 7.4(b), such reimbursements may be offset against any Capital Contributions to the Partnership that the General Partner is obligated to make pursuant to Section 5.2(c).
Section 7. The following typographical errors shall be corrected:
(a) Section 5.5(b)(v) is hereby amended to remove the period (.) appearing between the words same and method in the tenth line of such clause.
(b) Section 6.1(d)(i) is hereby amended to substitute 1.704-2(j)(2)(i) for 1.704-20)(2)(i) where the latter appears in the sixth line of such clause.
(c) Section 6.1(d)(ii) is hereby amended to substitute 1.704-2(j)(2)(ii) for 1.704-20)(2)(ii) where the latter appears in the eighth line of such clause.
(d) Section 6.1(d)(ix) is hereby amended to substitute 743(b) for 743(c) where the latter appears in the second line of such clause.
Section 8. Section 5.7(b) is hereby amended and restated to read in its entirety as follows:
(b) During the Subordination Period, the Partnership may also issue an unlimited number of Parity Units without the prior approval of the Unitholders, if such issuance occurs (i) in connection with an Acquisition or Capital Improvement or (ii) within 365 days of, and the net proceeds from such issuance are used to repay debt incurred in connection with, an Acquisition or a Capital Improvement, in each case where such Acquisition or Capital Improvement involves assets that, if acquired (or in the case of a Capital Improvement, put into commercial service) by the Partnership as of the date that is one year prior to the first day of the
3
Quarter in which such Acquisition was consummated or such Capital Improvement was put into commercial service (One Year Test Period), would have resulted, on a pro forma or estimated pro forma basis (as described below), in an increase in:
(A) the amount of Adjusted Operating Surplus generated by the Partnership on a per-Unit basis (for all Outstanding Units) with respect to the One Year Test Period (on a pro forma or estimated pro forma basis as described below) as compared to
(B) the actual amount of Adjusted Operating Surplus generated by the Partnership on a per-Unit basis (for all Outstanding Units) with respect to the One Year Test Period as adjusted as provided below.
The General Partners good faith determination that such an increase would have resulted shall be conclusive. The amount in clause (A) shall be determined on a pro forma or estimated pro forma basis assuming that (1) all of the Parity Units to be issued in connection with or within 365 days of such Acquisition or Capital Improvement had been issued and outstanding as of the commencement of such One Year Test Period, (2) all indebtedness for borrowed money to be incurred or assumed in connection with such Acquisition or Capital Improvement (other than any such indebtedness that is to be repaid with the proceeds of such issuance of Parity Units) had been incurred or assumed, in each case as of the commencement of the One Year Test Period, (3) the personnel expenses that would have been incurred by the Partnership in the operation of the acquired assets are the personnel expenses for employees to be retained by the Partnership in the operation of the acquired assets, and (4) the personnel expenses that would have been incurred by the Partnership in the operation of the constructed asset and the non-personnel costs and expenses that would have been incurred by the Partnership in the operation of the acquired or constructed assets are computed on the same basis as those incurred by the Partnership in the operation of the Partnerships business at similarly situated Partnership facilities or, if there are no such similarly situated facilities, as estimated by the General Partner in good faith using such assumptions as in its sole discretion it believes are reasonable. If (1) the Partnership makes a Capital Improvement or (2) the Partnership makes an Acquisition for which no financial statements are required to be furnished pursuant to Regulation S-X under the Securities Exchange Act of 1934, then the amount of Adjusted Operating Surplus in clause (A) attributable to such Acquisition or Capital Improvement shall be estimated by the General Partner in good faith using such assumptions as in its sole discretion it believes are reasonable. In determining Adjusted Operating Surplus attributable to a Capital Improvement, there shall be excluded from the amount in clause (B) above (i) any Operating Surplus attributable to such Capital Improvement (regardless of whether such Operating Surplus is positive or negative), and (ii) for the purpose of calculating the number of outstanding Units, any Units issued to finance the Capital Improvement. The number of Units, excluding any Parity Units to be issued in connection with or within 365 days of such Acquisition or Capital Improvement, deemed to be Outstanding for the purpose of calculating the amounts in clause (A) and clause (B) shall be the weighted average number of Units Outstanding during the One Year Test Period. For the purposes of this Section 5.7(b), the term debt shall be deemed to include the indebtedness used to extend, refinance, renew, replace or defease debt originally incurred in connection with an Acquisition or Capital Improvement; provided, that, the amount of such extended, refinanced, renewed, replaced or defeased indebtedness does not exceed the principal sum of, plus accrued interest on, the indebtedness so extended, refinanced, renewed, replaced or defeased.
4
Section 9. Section 5.7(f) is hereby added to the Partnership Agreement and shall read in its entirety as follows:
(f) During the Subordination Period, the Partnership may issue an unlimited number of Common Units and other Parity Units without the prior approval of the Unitholders if the net proceeds of such issuance are used to redeem an equal number of Common Units at a price per unit equal to the net proceeds per unit, before expenses, that the Partnership receives from such issuance.
Section 10. Except as hereby amended, the Partnership Agreement shall remain in full force and effect.
Section 11. 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 laws.
Section 12. Each provision of this Amendment shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Amendment that are valid, enforceable and legal.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first above written.
GENERAL PARTNER: MAGELLAN GP, LLC |
||||
By: |
/s/ Don R. Wellendorf |
|||
Name: |
Don R. Wellendorf |
|||
Title: |
President and Chief Executive Officer |
5
Exhibit 3(f)
CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
WEG GP LLC
1. The name of the limited liability company is WEG GP LLC.
2. The Amended and Restated Certificate of Formation of the limited liability company is hereby amended as follows:
1. The name of the limited liability company is Magellan GP, LLC.
3. This Certificate of Amendment of Amended and Restated Certificate of Formation of WEG GP LLC shall be effective September 1, 2003.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of Amended and Restated Certificate of Formation of WEG GP LLC this 12 th day of August, 2003.
WEG GP LLC |
||
By: |
/s/ Suzanne H. Costin |
|
Name: |
Suzanne H. Costin |
|
Title: |
Secretary |
AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
WEG GP, LLC
(Originally filed under the name New GP, LLC)
This Amended and Restated Certificate of Formation of WEG GP, LLC (the Company), dated November 15, 2002, has been duly executed and is being filed pursuant to Section 19-208 of the Delaware Limited Liability Company Act (the Act) to amend and restate the Certificate of Formation of the Company, which was filed on November 12, 2002 with the Secretary of State of the State of Delaware, as heretofore amended.
1. Name. The name of the Company is:
WEG GP LLC
2. Registered Office; Registered Agent. The Address of the registered office required to be maintained by Section 18-104 of the Act is:
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801.
The name and address of the registered agent for service of process required to be maintained by Section 18-104 of the Act are:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801.
EXECUTED as of the date written first above.
By: |
/s/ Craig R. Rich |
|
Name: |
Craig R. Rich |
|
Authorized Person |
Exhibit 3(g)
Execution Copy
AMENDED & RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
MAGELLAN GP, LLC
This AMENDED & RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this Agreement) of Magellan GP, LLC (the Company), dated as of December 1, 2003, is adopted, executed and agreed to for good and valuable consideration by Magellan Midstream Holdings, L.P., a Delaware limited partnership (MMH), as the member (Member).
RECITALS
1. The name of the Company is Magellan GP, LLC.
2. The Company was originally formed as a Delaware limited liability company with the name New GP, LLC by the filing of a Certificate of Formation (the Delaware Certificate), dated as of November 12, 2002 (the Original Filing Date), with the Secretary of State of the State of Delaware pursuant to the Delaware Limited Liability Company Act, with NEW GP Holding Company, Inc., a Delaware corporation (Holding), as the sole member.
3. Holding assigned, transferred and conveyed all of its limited liability company interests in the Company to Williams Energy Services, LLC (WES) and Williams Natural Gas Liquids, Inc. (WNGL) on November 14, 2002, and thereafter the name of the Company was changed to WEG GP, LLC on November 14, 2002, and changed again to WEG GP LLC on November 15, 2002.
4. On June 17, 2003, WES and WNGL assigned, transferred and conveyed all their limited liability company interests in the Company to MMH (formerly known as WEG Acquisitions, L.P. prior to September 1, 2003), and thereafter the name of the Company was changed to Magellan GP, LLC on August 12, 2003, and effective on September 1, 2003.
5. The Member now desires to enter into this Agreement to set forth the organization as to the affairs of the Company, the conduct of its business and the other matters provided for herein.
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions.
(a) As used in this Agreement, the following terms have the respective meanings set forth below or set forth in the Sections referred to below:
Act means the Delaware Limited Liability Company Act, as amended from time to time.
Adjusted Capital Account Deficit means, with respect to any Member, the deficit balance, if any, in such Members Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(c) or is deemed to be obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
Affiliate means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person, it being understood that a Limited Partner shall not be deemed to be an Affiliate of the Company solely based on such Limited Partners rights pursuant to Section 7.02. For the purposes of this definition, control when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Agreement has the meaning given such term in the Recitals, as the same may be amended from time to time.
Applicable Law means (a) any United States Federal, state or local law, statute, rule, regulation, order, writ, injunction, judgment, decree or permit of any Governmental Authority and (b) any rule or listing requirement of any applicable national stock exchange or listing requirement of any national stock exchange or Commission recognized trading market on which securities issued by the Partnership are listed or quoted.
Assignee means any Person that acquires a Members share of the income, gain, loss, deduction and credits of, and the right to receive distributions from, the Company or any portion thereof through a Disposition; provided, however, that, an Assignee shall have no right to be admitted to the Company as a Member except in accordance with Article IV. The Assignee of a dissolved Member is the shareholder, partner, member or other equity owner or owners of the dissolved Member to whom such Members Membership Interest is assigned by the Person conducting the liquidation or winding up of such Member.
Bankruptcy or Bankrupt means, with respect to any Person, that (a) such Person (i) makes a general assignment for the benefit of creditors; (ii) files a voluntary bankruptcy petition; (iii) becomes the subject of an order for relief or is declared insolvent in any federal or state bankruptcy or insolvency proceedings; (iv) files a petition or answer seeking for such Person a
2
reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Applicable Law; (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against such Person in a proceeding of the type described in subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of such Person or of all or any substantial part of such Persons properties; or (b) a proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Applicable Law has been commenced against such Person and 120 Days have expired without dismissal thereof or with respect to which, without such Persons consent or acquiescence, a trustee, receiver, or liquidator of such Person or of all or any substantial part of such Persons properties has been appointed and 90 Days have expired without the appointments having been vacated or stayed, or 90 Days have expired after the date of expiration of a stay, if the appointment has not previously been vacated. The foregoing definition of Bankruptcy is intended to replace and shall supercede and replace the definition of Bankruptcy set forth in the Act.
Board has the meaning given such term in Section 7.01.
Business Day means any day other than a Saturday, a Sunday, or a day when banks in New York, New York are authorized or required by Applicable Law to be closed.
Capital Account means, with respect to any Member, the Capital Account maintained for such Member in accordance with the following provisions:
(i) To each Members Capital Account there shall be credited such Members Capital Contributions, such Members distributive share of Profits and any items in the nature of income or gain which are specially allocated pursuant to Section 6.03 hereof, and the amount of any Company liabilities assumed by such Member or which are secured by any property (other than money) distributed to such Member.
(ii) To each Members Capital Account there shall be debited the amount of cash and the Gross Asset Value of any property (other than money) distributed to such Member pursuant to any provision of this Agreement, such Members distributive share of Losses and any items in the nature of expenses or losses which are specially allocated pursuant to Section 6.03 hereof, and the amount of any liabilities of such Member assumed by the Company or which are secured by any property (other than money) contributed by such Member to the Company.
(iii) In the event all or a portion of a Membership Interest is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the Membership Interest so transferred.
(iv) In determining the amount of any liability for purposes of the foregoing subparagraphs (i) and (ii) of this definition of Capital Account, there shall be taken into account Section 752(c) of the Code and any other applicable provisions of the Code and Treasury Regulations.
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The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner consistent with such Treasury Regulations.
Capital Contribution means, with respect to any Member, the amount of money and the net agreed value of any property (other than money) contributed to the Company by such Member. Any reference in this Agreement to the Capital Contribution of a Member shall include a Capital Contribution of its predecessors in interest.
Certified Public Accountants means a firm of independent public accountants selected from time to time by the Board.
Claim means any and all judgments, claims, causes of action, demands, lawsuits, suits, proceedings, Governmental investigations or audits, losses, assessments, fines, penalties, administrative orders, obligations, costs, expenses, liabilities and damages (whether actual, consequential or punitive), including interest, penalties, reasonable attorneys fees, disbursements and costs of investigations, deficiencies, levies, duties and imposts.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Company has the meaning given such term in the Recitals.
Compensation Committee has the meaning given such term in Section 7.10(e).
Conflicts Committee has the meaning given such term in Section 7.10(c).
Day means a calendar day; provided, however, that if any period of Days referred to in this Agreement shall end on a Day that is not a Business Day, then the expiration of such period shall be automatically extended until the end of the next succeeding Business Day.
Delaware Certificate has the meaning given such term in the Recitals.
Depreciation means, for each fiscal year or other period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for Federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the Federal income tax depreciation, amortization, or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the Federal income tax depreciation, amortization, or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Tax Matters Officer.
Director or Directors has the meaning given such term in Section 7.02.
Dispose, Disposing or Disposition means with respect to any asset (including a Membership Interest or any portion thereof), a sale, assignment, transfer, conveyance, gift, exchange or other disposition of such asset, whether such disposition be voluntary, involuntary or by operation of Applicable Law.
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Disposing Member has the meaning given such term in Section 4.02.
Dissolution Event has the meaning given such term in Section 12.01(a).
Encumber, Encumbering, or Encumbrance means the creation of a security interest, lien, pledge, mortgage or other encumbrance, whether such encumbrance be voluntary, involuntary or by operation of Applicable Law.
GAAP means generally accepted accounting principles.
Governmental Authority or Governmental means any Federal, state or local court or governmental or regulatory agency or authority or any arbitration board, tribunal or mediator having jurisdiction over the Company or its assets or Members.
Gross Asset Value means, with respect to any asset, the assets adjusted basis for Federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of said asset, as determined by the contributing Member and the Board, in a manner that is consisted with Section 7701(g) of the Code;
(ii) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Board, in a manner that is consistent with Section 7701(g) of the Code, as of the following times: (a) the acquisition of an additional Membership Interest by any new or existing Member in exchange for more than a de minimis Capital Contribution; (b) the distribution by the Company to a Member of more than a de minimis amount of property other than money as consideration for an Membership Interest; and (c) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses (a) and (b) above shall be made only if the Tax Matters Officer reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;
(iii) The Gross Asset Value of any Company asset distributed to any Member shall be the gross fair market value (taking Section 7701(g) of the Code into account) of such asset on the date of distribution; and
(iv) The Gross Asset Values of any Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Section 734(b) of the Code or Section 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1 (b)(2)(iv)(m) and the definition of Capital Account hereof; provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to the extent the Tax Matter Officer determines that an adjustment
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pursuant to the foregoing subparagraph (ii) of this definition is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to the foregoing subparagraphs (i), (ii) or (iv), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses.
Holding has the meaning given such term in the Recitals.
Incentive Plan means any plan or arrangement pursuant to which the Company may compensate its employees, consultants, directors and/or service providers.
Indemnitee means (a) any Person who is or was an Affiliate of the Company, (b) any Person who is or was a member, partner, officer, director, employee, agent or trustee of the Company or any Affiliate of the Company and (c) any Person who is or was serving at the request of the Company or any Affiliate of the Company as an officer, director, employee, member, partner, agent, fiduciary or trustee of another Person; provided, however, that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services.
Independent Director has the meaning given such term in Section 7.10(b).
Limited Partner and Limited Partners shall have the meaning given such terms in the Partnership Agreement.
Majority Interest means greater than 50% of the Sharing Ratios.
Member means any Person executing this Agreement as of the date of this Agreement as a member of the Company or hereafter admitted to the Company as a member as provided in this Agreement, but such term does not include any Person who has ceased to be a member in the Company.
Membership Interest means, with respect to any Member, (a) that Members status as a Member; (b) that Members share of the income, gain, loss, deduction and credits of, and the right to receive distributions from, the Company; (c) all other rights, benefits and privileges enjoyed by that Member (under the Act, this Agreement, or otherwise) in its capacity as a Member, including that Members rights to vote, consent and approve and otherwise to participate in the management of the Company, including through the Board; and (d) all obligations, duties and liabilities imposed on that Member (under the Act, this Agreement or otherwise) in its capacity as a Member, including any obligations to make Capital Contributions.
MMH means Magellan Midstream Holdings, L.P., a Delaware limited partnership.
Notices has the meaning given such term in Section 13.02.
NYSE has the meaning given such term in Section 7.10(b).
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Omnibus Agreement means that New Omnibus Agreement dated as of June 17, 2003, among MMH, WES, WNGL and The Williams Companies, Inc., as such agreement may be amended, supplemented or restated from time to time.
Operating Partnership has the meaning given such term in the Partnership Agreement.
Original Filing Date has the meaning given such term in the Recitals.
Partnership means Magellan Midstream Partners, L.P., a Delaware limited partnership (formerly known as Williams Energy Partners L.P. prior to September 1, 2003).
Partnership Agreement means the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated September 27, 2002, as amended by Amendment Nos. 1 and 2 thereto, each dated as of November 15, 2002, as may be further amended, or any successor agreement.
Person means any individual, firm, partnership, corporation, limited liability company, association, joint-stock company, unincorporated organization, joint venture, trust, court, governmental agency or any political subdivision thereof, or any other entity.
Profits and Losses means, for each fiscal year or other period, an amount equal to the Companys taxable income or loss for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments:
(i) Any income of the Company that is exempt from Federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be added to such taxable income or loss;
(ii) Any expenditures of the Company described in Section 705(a)(2)(B) of the Code, and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be subtracted from such taxable income or loss;
(iii) In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) or (iv) of the definition of Gross Asset Value hereof, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits or Losses;
(iv) Gain or loss resulting from any disposition of property (other than money) with respect to which gain or loss is recognized for Federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;
(v) In lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such fiscal year or other period, computed in accordance with the definition of Depreciation hereof; and
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(vi) Notwithstanding any other provision of this definition of Profits and Losses, any items which are specially allocated pursuant to Section 6.03(d) and Section 6.03(e) hereof shall not be taken into account in computing Profits or Losses.
Proper Officer or Proper Officers means those officers authorized by the Board to act on behalf of the Company.
Services Agreement means that Services Agreement dated as of June 17, 2003, among the Company, MMH and the Partnership, as such agreement may be amended, supplemented or restated from time to time.
Sharing Ratio means, subject in each case to adjustments in accordance with this Agreement or in connection with Dispositions of Membership Interests, (a) in the case of a Member executing this Agreement as of the date of this Agreement or a Person acquiring such Members Membership Interest, the percentage specified for that Member as its Sharing Ratio on Exhibit A, and (b) in the case of Membership Interests issued pursuant to Section 3.01, the Sharing Ratio established pursuant thereto; provided, however, that the total of all Sharing Ratios shall always equal 100%.
Special Approval means approval by a majority of the members of the Conflicts Committee.
Spring-Back Event has the meaning given such term in Section 7.02(b).
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 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.
Target Capital Account Amount means, with respect to a Member, the distribution the Member would receive pursuant to Section 6.02 if the amount to be distributed to the Member equaled the product of (i) the amount described in Section 12.02(a)(iii)(C) multiplied by (ii) the Members Sharing Ratio.
Tax Matters Officer has the meaning given such term in Section 10.03(a).
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Term has the meaning given such term in Section 2.06.
Treasury Regulations means the regulations (including temporary regulations) promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Code. All references herein to sections of the Treasury Regulations shall include any corresponding provision or provisions of succeeding, similar or substitute, temporary or final Treasury Regulations.
WES has the meaning given such term in the Recitals.
Williams Group means The Williams Companies, Inc., a Delaware corporation, and its Subsidiaries and Affiliates (other than the Company and the Partnership and its Subsidiaries).
Withdraw, Withdrawing or Withdrawal means the withdrawal, resignation or retirement of a Member from the Company as a Member. Such terms shall not include any Dispositions of Membership Interest (which are governed by Article IV), even though the Member making a Disposition may cease to be a Member as a result of such Disposition.
WNGL has the meaning given such term in the Recitals.
(b) Other terms defined herein have the meanings so given them.
Section 1.02 Construction .
Whenever the context requires, (a) the gender of all words used in this Agreement includes the masculine, feminine and neuter, (b) the singular forms of nouns, pronouns and verbs shall include the plural and vice versa, (c) all references to Articles and Sections refer to articles and sections in this Agreement, each of which is made a part for all purposes and (d) the term include or includes means includes, without limitation, and including means including, without limitation.
ARTICLE II.
ORGANIZATION
Section 2.01 Formation .
Holding formed the Company as a Delaware limited liability company by the filing of the Delaware Certificate, dated as of the Original Filing Date, with the Secretary of State of Delaware pursuant to the Act. Holding assigned, transferred and conveyed all of its limited liability company interest in the Company to WES and WNGL on November 15, 2002, and thereafter the name of the Company was changed to WEG GP, LLC on November 14, 2002 and changed again to WEG GP LLC on November 15, 2003. On June 17, 2003, WES and WNGL assigned, transferred and conveyed all of their limited liability company interests in the Company to MMH, and thereafter the name of the Company was changed to Magellan GP, LLC on August 12, 2003 and effective as of September 1, 2003.
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Section 2.02 Name .
The name of the Company is Magellan GP, LLC and all Company business must be conducted in that name or such other names that comply with Applicable Law as the Board may select.
Section 2.03 Registered Office; Registered Agent; Principal Office .
The name of the Companys registered agent for service of process is The Corporation Trust Company, and the address of the Companys registered office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801. The principal place of business of the Company shall be located at One Williams Center, Tulsa, Oklahoma 74172. The Members may change the Companys registered agent or the location of the Companys registered office or principal place of business as the Members may from time to time determine.
Section 2.04 Purposes .
(a) The Company may (i) act as the general partner of the Partnership (and acquire, hold and dispose of partnership interests and related rights in the Partnership) and only undertake activities that are ancillary or related thereto and (ii) in connection with acting in such capacity, carry on any lawful business or activity permitted by the Act.
(b) Subject to the limitations expressly set forth in this Agreement, the Company shall have the power and authority to do any and all acts and things deemed necessary or desirable by the Board to further the Companys purposes and carry on its business, including, without limitation, the following:
(i) acting as the general partner of the Partnership;
(ii) entering into any kind of activity and performing contracts of any kind necessary or desirable for the accomplishment of its business (including the business of the Partnership and the Operating Partnership);
(iii) acquiring any property, real or personal, in fee or under lease or license, or any rights therein or appurtenant thereto, necessary or desirable for the accomplishment of its business;
(iv) borrowing money and issuing evidences of indebtedness and securing any such indebtedness by mortgage or pledge of, or other lien on, the assets of the Company;
(v) entering into any such instruments and agreements as the Board may deem necessary or desirable for the ownership, management, operation, leasing and sale of the Companys property; and
(vi) negotiating and concluding agreements for the sale, exchange or other disposition of all or substantially all of the properties of the Company, or for the refinancing of any loan or payment obtained by the Company.
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Section 2.05 Foreign Qualification .
Prior to the Companys conducting business in any jurisdiction other than Delaware, the Proper Officers shall cause the Company to comply, to the extent procedures are available and those matters are reasonably within the control of such officers, with all requirements necessary to qualify the Company as a foreign limited liability company in that jurisdiction. At the request of the Proper Officers, the Members shall execute, acknowledge, swear to, and deliver all certificates and other instruments conforming with this Agreement that are necessary or appropriate to qualify, continue, and, if applicable, terminate the Company as a foreign limited liability company in all such jurisdictions in which the Company may conduct business or in which it has ceased to conduct business.
Section 2.06 Term .
The period of existence of the Company (the Term) commenced on the Original Filing Date and shall end at such time as a certificate of cancellation is filed with the Secretary of State of Delaware in accordance with Section 12.04.
Section 2.07 No State Law Partnership .
The Members intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member, for any purposes other than (if the Company has more than one Member) Federal and state income tax purposes, and this Agreement may not be construed to suggest otherwise.
Section 2.08 Certain Undertakings Relating to the Separateness of the Company and the Partnership .
(a) Separate Records . The Company shall, and shall cause the Partnership to, maintain (i) its books and records, (ii) its accounts, and (iii) its financial statements, separate from those of any other Person, except its consolidated Subsidiaries.
(b) Separate Assets. The Company shall not, and shall not permit the Partnership to, commingle or pool its funds or other assets with those of any other Person, except its consolidated Subsidiaries, and shall, and shall cause the Partnership to, maintain its assets in a manner that is not costly or difficult to segregate, ascertain or otherwise identify as separate from those of any other Person.
(c) Separate Name . The Company shall, and shall cause the Partnership to, (i) conduct its business in its own name, (ii) use separate stationery, invoices, and checks, (iii) correct any known misunderstanding regarding its separate identity, and (iv) generally hold itself out as a separate entity.
(d) Separate Credit . The Company shall not, and shall not permit the Partnership to, (i) pay its own liabilities from a source other than its own funds, (ii) guarantee or become obligated for the debts of any other Person, except its Subsidiaries and, in the case of the Company, the Partnership, (iii) hold out its credit as being available to satisfy the obligations of any other Person, except its Subsidiaries and, in the case of the Company, the Partnership, (iv)
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acquire obligations or debt securities of any member of the Williams Group, or (v) pledge its assets for the benefit of any Person or make loans or advances to any Person, except its Subsidiaries and, in the case of the Company, the Partnership; provided that the Company or the Partnership may engage in any transaction described in clauses (ii)-(v) of this Section 2.08(d) if prior Special Approval has been obtained for such transaction and either (A) in the case of transactions described in clauses (ii) and (iii), the Conflicts Committee has determined, or has obtained reasonable written assurance from a nationally recognized firm of independent public accounts or a nationally recognized investment banking or valuation firm, that the borrower or recipient of the credit extension is not then insolvent and will not be rendered insolvent as a result of such transaction or (B) in the case of transactions described in clause (iv), such transaction is completed through a public auction or a nationally recognized exchange.
(e) Separate Formalities . The Company shall, and shall cause the Partnership to, (i) observe all limited liability or partnership formalities, as the case may be, and other formalities required by its organizational documents, the laws of the jurisdiction of its formation, or other laws, rules, regulations and orders of governmental authorities exercising jurisdiction over it, (ii) engage in transactions with any member of the Williams Group in conformity with the requirements of Section 7.10(c), and (iii) subject to the terms of the Omnibus Agreement and the Services Agreement, promptly pay, from its own funds, and on a current basis, its allocable share of general and administrative expenses, capital expenditures, and costs for shared services performed by any Member of the Williams Group. Each material contract between the Company or the Partnership, on the one hand, and any member of the Williams Group, on the other hand, shall be in writing.
ARTICLE III.
MEMBERSHIP
Section 3.01 Membership Interests; Additional Members .
The Members own Membership Interests in the Company as reflected in Exhibit A attached hereto. Persons may be admitted to the Company as Members, on such terms and conditions as the Members, without any approval of the Board, determine at the time of admission. The terms of admission or issuance must specify the Sharing Ratios applicable thereto and may provide for the creation of different classes or groups of Members having different rights, powers, and duties. The Members may reflect the creation of any new class or group in an amendment to this Agreement indicating the different rights, powers, and duties, and such an amendment shall be approved and executed by the Members. Any such admission is effective only after such new Member has executed and delivered to the Members and the Company an instrument containing the notice address of the new Member, the new Members ratification of this Agreement and agreement to be bound by it.
Section 3.02 Access to Information .
Each Member shall be entitled to receive any information that it may request concerning the Company; provided, however, that this Section 3.02 shall not obligate the Company to create any information that does not already exist at the time of such request (other than to convert existing information from one medium to another, such as providing a printout of information
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that is stored in a computer database). Each Member shall also have the right, upon reasonable notice, and at all reasonable times during usual business hours to inspect the properties of the Company and to audit, examine and make copies of the books of account and other records of the Company. Such right may be exercised through any agent or employee of such Member designated in writing by it or by an independent public accountant, engineer, attorney or other consultant so designated. All costs and expenses incurred in any inspection, examination or audit made on such Members behalf shall be borne by such Member.
Section 3.03 Liability .
(a) No Member shall be liable for the debts, obligations or liabilities of the Company solely by reason of being a member of the Company.
(b) The Company and the Members agree that the rights, duties and obligations of the Members in their capacities as members of the Company are only as set forth in this Agreement and as otherwise arise under the Act. Furthermore, the Members agree that the existence of any rights of a Member, or the exercise or forbearance from exercise of any such rights shall not create any duties or obligations of the Member in their capacities as members of the Company, nor shall such rights be construed to enlarge or otherwise alter in any manner the duties and obligations of the Members.
Section 3.04 Withdrawal .
A Member does not have the right or power to Withdraw.
ARTICLE IV.
DISPOSITION OF MEMBERSHIP INTERESTS
Section 4.01 General Restriction .
A Member may not Dispose of all or any portion of its Membership Interests except in strict accordance with this Article IV. References in this Article IV to Dispositions of a Membership Interest shall also refer to Dispositions of a portion of a Membership Interest. Any attempted Disposition of a Membership Interest, other than in strict accordance with this Article IV, shall be, and is hereby declared, null and void ab initio. The Members agree that a breach of the provisions of this Article IV may cause irreparable injury to the Company and to the other Members for which monetary damages (or other remedy at law) are inadequate in view of (a) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with such provision and (b) the uniqueness of the business of the Company and the relationship among the Members. Accordingly, the Members agree that the provisions of this Article IV may be enforced by specific performance.
Section 4.02 Admission of Assignee as a Member .
An Assignee has the right to be admitted to the Company as a Member, with the Membership Interests (and attendant Sharing Ratio) so transferred to such Assignee, only if (a) the Member making the Disposition (a Disposing Member) has granted the Assignee either (i) all, but not less than all, of such Disposing Members Membership Interests or (ii) the express right to be so admitted; and (b) such Disposition is effected in strict compliance with this Article IV.
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Section 4.03 Requirements Applicable to All Dispositions and Admissions .
Any Disposition of Membership Interests and any admission of an Assignee as a Member shall also be subject to the following requirements, and such Disposition (and admission, if applicable) shall not be effective unless such requirements are complied with:
(a) Payment of Expenses. The Disposing Member and its Assignee shall pay, or reimburse the Company for, all reasonable costs and expenses incurred by the Company in connection with the Disposition and admission of the Assignee as a Member.
(b) No Release. No Disposition of Membership Interests shall effect a release of the Disposing Member from any liabilities to the Company or the other Members arising from events occurring prior to the Disposition, except as otherwise may be provided in any instrument or agreement pursuant to which a Disposition of Membership Interests is effected.
ARTICLE V.
CAPITAL CONTRIBUTIONS
Section 5.01 Initial Capital Contributions .
At the time of the formation of the Company or contemporaneously with the adoption by the Members of this Agreement, as appropriate, each Member shall be deemed to have made Capital Contributions as set forth next to the Members name on Exhibit A.
Section 5.02 Loans .
If the Company does not have sufficient cash to pay its obligations, any Member(s) that may agree to do so with the consent of the Board may advance all or part of the needed funds to or on behalf of the Company. An advance described in this Section 5.02 constitutes a loan from the Member to the Company, bears interest at a rate determined by the Board from the date of the advance until the date of payment, and is not a Capital Contribution.
Section 5.03 Return of Contributions .
Except as expressly provided herein, no Member is entitled to the return of any part of its Capital Contributions or to be paid interest in respect of either its Capital Account or its Capital Contributions. An unrepaid Capital Contribution is not a liability of the Company or of any Member. A Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return any Members Capital Contributions.
Section 5.04 Capital Accounts .
An individual Capital Account shall be established and maintained for each Member. A Member that has more than one class or series of Membership Interest shall have a single Capital Account that reflects all such classes or series of Membership Interests, regardless of the classes
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or series of Membership Interests owned by such Member and regardless of the time or manner in which such Membership Interests were acquired. Upon the Disposition of all or a portion of a Membership Interest, the Capital Account of the Disposing Member that is attributable to such Membership Interest shall carry over to the Assignee in accordance with the provisions of Treasury Regulation Section 1.704-1(b)(2)(iv)(l).
ARTICLE VI.
DISTRIBUTIONS AND ALLOCATIONS
Section 6.01 Distributions .
Except as otherwise provided in Section 6.02 and Section 6.05, distributions to the Members shall be made only to all Members simultaneously in proportion to their respective Sharing Ratios (at the time the amounts of such distributions are determined) and in such aggregate amounts and at such times as shall be determined by the Members representing a Majority Interest (at the time the amounts of such distributions are determined); provided, however, that any loans from Members pursuant to Section 5.02 shall be repaid prior to any distributions to Members pursuant to this Section 6.01.
Section 6.02 Distributions on Dissolution and Winding Up .
Upon the dissolution and winding up of the Company, after adjusting the Capital Accounts, if any, for all distributions made under Section 6.01 and all allocations under Article VI, all available proceeds distributable to the Members as determined under Section 12.02 shall be distributed (i) to all of the Members in amounts equal to the Members positive Capital Account balances, or (ii) if the obligation to maintain Capital Accounts has been suspended under Section 13.12 of this Agreement, to the sole Member.
Section 6.03 Allocations .
Subject to the allocation rules of Section 6.03(c), (d) and (e) hereof, Profits and Losses of the Company for any fiscal year shall be allocated as follows:
(a) Profits for any fiscal year shall be allocated in the following order of priority:
(i) First, to all Members, in proportion to the deficit balances (if any) in their Capital Accounts, in an amount necessary to eliminate any deficits in the Members Capital Accounts and restore such Capital Accounts balances to zero;
(ii) Second, to the Members until each Member has been allocated an amount equal to the amount distributed to such Member pursuant to Section 6.01 in the current and in all previous fiscal years in excess of amounts previously allocated to such Members pursuant to this Section 6.03(a)(ii);
(iii) Third, to the Members, to the greatest extent possible, an amount required to cause the positive Capital Account balances of each of the Members to be in the same proportion as the Members respective Sharing Ratios; and
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(iv) Thereafter, to the Members in proportion their respective Sharing Ratios.
(b) Losses for any fiscal year shall be allocated in the following order of priority:
(i) First, to the Members, to the greatest extent possible, an amount required to cause the positive Capital Account balances of each of the Members to be in the same proportion as the Members respective Sharing Ratios;
(ii) Next, to the Members in proportion to their respective Sharing Ratios until the Capital Account balances of such Members have been reduced to zero;
(iii) Next, to any Member that has a positive Capital Account balance until the Capital Account balances of all of the Members have been reduced to zero; and
(iv) Thereafter, to the Members in proportion to their respective Sharing Ratios.
(c) Notwithstanding the allocation provisions of Section 6.03(a) and (b), if the allocation of Profits or Losses to a Member pursuant to Sections 6.03(a) and (b) in the current fiscal year would cause a Member to have a positive Capital Account balance that is greater than or less than the amount that has been distributed to such Member in the current fiscal year pursuant to Section 6.01, then the allocations of Profits and Losses in the current fiscal year shall be adjusted, to the greatest extent possible, to cause the positive Capital Account balances of each Member to equal the amount of distributions made to such Member in the current fiscal year. In addition, in the event of the dissolution of the Company pursuant to Section 12.01 hereof, if the allocation of Profits or Losses to a Member pursuant to Sections 6.03(a) and (b) would cause a Member to have a Capital Account balance in an amount that is greater than or less than the Members Target Capital Account Amount, then the allocations of Profits and Losses shall be adjusted, to the greatest extent possible, to cause the positive Capital Account balances of each Member to equal such an amount.
(d) The following special allocations shall be made in the following order:
(i) Qualified Income Offset. In the event any Member 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 Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to restore, to the extent required by the Treasury Regulations, the Members Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section 6.03(d)(i) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article VI have been tentatively made as if this Section 6.03(d)(i) was not in this Agreement.
(ii) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Company fiscal year which is in excess of the sum of (x) the amount such Member is obligated to restore pursuant to any provision of this Agreement and (y) the amount such Member is deemed to be obligated to restore pursuant to the
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penultimate sentence of Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 6.03(d)(ii) shall be made only if and to the extent that such Member would have a deficit Capital Account balance in excess of such sum after all other allocations provided for in this Article VI have been made as if Section 6.03(d)(i) hereof and this Section 6.03(d)(ii) were not in this Agreement.
(iii) Section 754 Adjustments. To the extent an adjustment of the adjusted tax basis of any Company asset pursuant to Section 734(b) of the Code or Section 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(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 gain or loss shall be specially allocated to the Members 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.
(e) In accordance with Section 704(c) of the Code and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Gross Asset Value (computed in accordance with the definition of same under this Agreement). In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Gross Asset Value hereof, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Gross Asset Value in the same manner as under Section 704(c) of the Code and the Treasury Regulations thereunder. Any elections or other decisions relating to such allocations shall be made by the Tax Matters Officer in any manner that reasonably reflects the purpose and intention of this Agreement, provided that the Company shall use the remedial allocation method set forth in Treasury Regulation Section 1.704-3(d). Allocations pursuant to this Section 6.03(e) are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Members Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.
Section 6.04 Varying Interests .
All items of income, gain, loss, deduction or credit shall be allocated, and all distributions shall be made, to the Persons shown on the records of the Company to have been Members as of the last calendar day of the period for which the allocation or distribution is to be made. Notwithstanding the foregoing, if during any taxable year there is a change in any Members Sharing Ratio, the Members agree that their allocable shares of such items for the taxable year shall be determined on any method determined by the Board to be permissible under Code Section 706 and the related Treasury Regulations to take account of the Members varying Sharing Ratios.
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Section 6.05 Tax Distributions .
To the extent the Board, in good faith, determines the Company has sufficient funds, the Company shall make distributions on a quarterly basis after the end of each fiscal quarter of the Company, beginning with the fourth quarter for the fiscal year ending December 31, 2002, to each Member in an amount equal to (i) the total amount of taxable income allocated to such Member for such fiscal year which exceeds the aggregate allocation of Losses pursuant to Sections 6.03(b) and (c) for the succeeding fiscal years multiplied by (ii) a tax rate reasonably selected by the Board; provided, however, that subsequent distributions to the Members made during such fiscal year and subsequent fiscal years shall be adjusted as necessary to ensure that, over the entire Term of the Company, the aggregate cash distributed to a Member shall be equal to the amount to which such Member would have been entitled had there been no distributions made pursuant to this Section 6.05.
Section 6.06 Withheld Taxes .
All amounts withheld pursuant to the Code or any provision of any state or local tax law with respect to any payment, distribution or allocation to the Company or the Members shall be treated as amounts distributed to the Members pursuant to this Article VI for all purposes of this Agreement. The Board is authorized to withhold from distributions, or with respect to allocations, to the Members and to pay over to any federal, state or local government any amounts required to be so withheld pursuant to the Code or any provision of any other federal, state or local law and shall allocate such amounts to those Members with respect to which such amounts were withheld.
Section 6.07 Limitations on Distributions .
Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or other Applicable Law.
ARTICLE VII.
MANAGEMENT
Section 7.01 Management by Board of Directors and Executive Officers .
The business and affairs of the Company shall be fully vested in, and managed by, the Board and any executive officers elected pursuant to Article VIII hereof. The Directors and executive officers shall collectively constitute managers of the Company within the meaning of the Act. Except as otherwise specifically provided in this Agreement, the authority and functions of the Board, on the one hand, and the executive officers, on the other hand, shall be identical to the authority and functions of the board of directors and officers, respectively, of a corporation organized under the General Corporation Law of the State of Delaware. The executive officers shall be vested with such powers and duties as are set forth in Article VIII hereof and as are specified by the Board. Accordingly, except as otherwise specifically provided in this Agreement, the business and affairs of the Company shall be managed under the direction of the Board, and the day-to-day activities of the Company shall be conducted on the Companys behalf by the executive officers who shall be agents of the Company.
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In addition to the powers and authorities expressly conferred on the Board by this Agreement, the Board may exercise all such powers of the Company and do all such acts and things as are not restricted by this Agreement, the Act or Applicable Law.
Notwithstanding anything above seeming to the contrary, the Board will not take any action, without approval of the Members with respect to an extraordinary matter that would have, or would reasonably be expected to have, a material effect, directly or indirectly, on the Members interests in the Company. The type of extraordinary matter referred to in the prior sentence which requires approval of the Members shall include, but not be limited to the following: (i) commencement of any action relating to bankruptcy, insolvency, reorganization or relief of debtors by the Company, the Partnership or a material subsidiary of either; (ii) a merger, consolidation, recapitalization or similar transaction involving the Company, the Partnership or a material subsidiary of either; (iii) a sale, exchange or other transfer not in the ordinary course of business of a substantial portion of the assets of the Company or the Partnership, viewed in each case on a consolidated basis, in one or a series of related transactions; (iv) dissolution or liquidation of the Company or the Partnership; (v) a material amendment of the Partnership Agreement; and (vi) a material change in the amount of the quarterly distribution made on the common units of the Partnership or the payment of a material extraordinary distribution. An extraordinary matter will be deemed approved by a Member if the Board receives a written, facsimile or electronic instruction evidencing such approval from the Member or if a majority of the directors on the Board, affiliated with the Member, approve such matter. To the fullest extent permitted by law, a Director, acting as such, shall have no duty, responsibility or liability to the Members with respect to any action by the Board approved as required above by the Members.
Section 7.02 Adoption of Section 13.4(c) of the Partnership Agreement .
(a) The Members and the Company hereby adopt as part of the terms of this Agreement, and agree to be bound by, Section 13.4(c) of the Partnership Agreement as if such section were set forth in full herein and hereby delegate to the Limited Partners the right to elect the directors constituting the Board (each a Director and collectively, the Directors) at an annual meeting of the Limited Partners to be held by the Company in accordance with Section 13.4(c) of the Partnership Agreement. Such delegation shall not cause any Member to cease to be a member of the Company and shall not constitute a delegation of any other rights, powers, privileges or duties of the Members with respect to the Company. A Director need not be a Member or a Limited Partner.
(b) Section 13.4(c) of the Partnership Agreement shall govern the election of Directors and such other matters as set forth therein unless and until such section is given no further force or effect pursuant to Section 13.4(c)(xi) of the Partnership Agreement (a Spring-Back Event), in which case (i) Section 7.02 shall be deemed automatically amended and restated to provide in its entirety as follows: The number of directors constituting the Board shall be seven (each a Director and collectively, the Directors), unless otherwise fixed from time to time pursuant to a resolution adopted by a majority of the Directors. A Director need not
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be a Member. The Directors shall be elected or approved by the Members at an annual meeting of the Members and shall serve as Directors of the Company until their death or removal from office or until their successors are elected and qualified.; (ii) the Members representing a Majority Interest (at the time of such Spring-Back Event) shall be entitled to remove the Directors in office immediately prior to such Spring-Back Event and replace such Directors with other persons as they may agree upon, which newly elected Directors may be of the same class or of separate classes, as such Members may agree upon; (iii) the definition of Limited Partner in Section 1.01 shall be deemed automatically removed; and (iv) all references in this Agreement to the Limited Partners and to Section 13.4(c) of the Partnership Agreement shall be deemed automatically removed.
(c) The Limited Partners shall not be deemed to be Members or holders of Membership Interests as such terms are defined in this Agreement or to be members, managers or holders of limited liability company interests as such terms are defined in the Act. The exercise by a Limited Partner of the right to elect Directors and any other rights afforded to such Limited Partner hereunder and under Section 13.4(c) of the Partnership Agreement shall be in such Limited Partners capacity as a limited partner of the Partnership, and no Limited Partner shall be liable for any debts, obligations or liabilities of the Company by reason of the foregoing.
(d) The Members and the Company agree to use their commercially reasonable best efforts to take such action as shall be necessary or appropriate to give effect to and implement the provisions of Section 13.4(c) of the Partnership Agreement as adopted in this Article VII.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 13.05, the foregoing clauses in this Section 7.02 shall not be amended except as expressly provided in Section 7.02(b) or upon the requisite approval set forth in Section 13.4(c)(x) of the Partnership Agreement.
(f) If the Company delegates to an existing or newly formed wholly-owned subsidiary the power and authority to manage and control the business and affairs of the Partnership Group (as defined in the Partnership Agreement), the foregoing provisions of this Section 7.02 shall be applicable with respect to the board of directors or other governing body of such subsidiary and the Members and the Company agree to use their commercially reasonable best efforts to take such action as shall be necessary or appropriate to give effect to and implement such provisions with respect to such subsidiary.
(g) The classes of Directors and terms thereof are: (i) Class I, whose terms expire at the 2003 annual meeting of the Limited Partners and on each third succeeding annual meeting thereafter, (ii) Class II, whose terms expire at the 2004 annual meeting of the Limited Partners and on each third succeeding annual meeting thereafter, and (iii) Class III, whose terms expire at the 2005 annual meeting of the Limited Partners and on each third succeeding annual meeting thereafter. As of June 17, 2003, the members of each class of Directors of the Company are as set forth on Exhibit C hereto.
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Section 7.03 Regular Meetings .
The Board shall meet at least quarterly, and a regular meeting of the Board shall be held without notice other than this Section 7.03 immediately after, and at the same place as, the annual meeting referred to in Section 7.02. The Board may, by resolution, provide the time and place for the holding of additional regular meetings without other notice than such resolution.
Section 7.04 Special Meetings .
A special meeting of the Board may be called at any time at the request of (a) the Chairman of the Board or (b) a majority of the Directors then in office.
Section 7.05 Notice .
Written notice of all regular meetings of the Board, except for regular meetings scheduled by resolution as set forth in Section 7.03, must be given to all Directors at least 5 Days prior to the regular meeting of the Board and one Business Day prior to any special meeting of the Board. All notices and other communications to be given to Directors shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service or three days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or when received in the form of a telegram or facsimile, and shall be directed to the address or facsimile number as such Director shall designate by notice to the Company. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice of such meeting, except for amendments to this Agreement, as provided herein. A meeting may be held at any time without notice if all the Directors are present or if those not present waive notice of the meeting either before or after such meeting.
Section 7.06 Action by Consent of Board .
Except as otherwise required by Applicable Law, all decisions of the Board shall require the affirmative vote of a majority of the Directors present at a meeting at which a quorum, as described in Section 7.08, is present. To the extent permitted by Applicable Law, the Board may act without a meeting so long as the number of Directors who would be required to take such action at a duly held meeting shall have executed a written consent with respect to any Board action taken in lieu of a meeting.
Section 7.07 Conference Telephone Meetings .
Directors or members of any committee of the Board may participate in a meeting of the Board or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
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Section 7.08 Quorum.
A majority of Directors, present in person or participating in accordance with Section 7.07, shall constitute a quorum for the transaction of business, but if at any meeting of the Board there shall be less than a quorum present, a majority of the Directors present may adjourn the meeting from time to time without further notice. Any act of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board. The Directors present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough Directors to leave less than a quorum.
Section 7.09 Vacancies; Increases in the Number of Directors .
Unless and until there occurs a Spring-Back Event, this Section 7.09 shall state in its entirety as follows: [Reserved]. Upon the occurrence of a Spring-Back Event, this Section 7.09 shall be deemed automatically amended and restated to provide in its entirety as follows: Unless otherwise provided in this Agreement, vacancies and newly created directorships resulting from any increase in the authorized number of Directors may be filled by a majority of the Directors then in office, although less than a quorum, or a sole remaining Director; and any Director so chosen shall hold office until the next annual election and until his successor shall be duly elected and shall qualify, unless sooner displaced.
Section 7.10 Committees .
(a) The Board may establish committees of the Board and may delegate certain of its responsibilities to such committees.
(b) The Board shall have an audit committee comprised of three Directors, all of whom shall be Independent Directors. Such audit committee shall establish a written audit committee charter in accordance with the rules of the New York Stock Exchange, Inc. (the NYSE), as amended from time to time. Independent Director shall mean Directors meeting the independence and experience requirements as set forth most recently by the NYSE.
(c) The Board shall have a conflicts committee comprised of three or more Directors, all of whom shall be Independent Directors (the Conflicts Committee). Any matter approved by the Conflicts Committee in the manner provided for in the Partnership Agreement shall be conclusively deemed to be fair and reasonable to the Partnership, and not a breach by the Company of any fiduciary or other duties owed to the Partnership by the Company.
(i) Special Approval of the Conflicts Committee shall be required for the acquisition of any assets or business (including any equity interest in an entity) by the Partnership or any of its subsidiaries from the Company or any member of the Williams Group if the purchase price of such assets or business will exceed 5% of the gross (undepreciated) book value of property, plant and equipment as reflected on the Partnerships consolidated balance sheet as of the end of the calendar three-month or annual period next preceding the date of any such acquisition.
(ii) Special Approval of the Conflicts Committee shall be required for any action to cause the Company, or for the Company to cause the Partnership, to (1) make or
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consent to a general assignment for the benefit of the Companys or the Partnerships, as applicable, creditors; (2) file or consent to the filing of any bankruptcy, insolvency or reorganization petition for relief under the United States Bankruptcy Code naming the Company or the Partnership, as applicable, as debtor or otherwise institute bankruptcy or insolvency proceedings by or against the Company or the Partnership, as applicable, or otherwise seek, with respect to the Company or the Partnership, as applicable, relief from debts or protection from creditors generally; (3) file or consent to the filing of a petition or answer seeking for the Company or the Partnership, as applicable, a liquidation, dissolution, arrangement or similar relief under any law; (4) file an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Company or the Partnership, as applicable, in a proceeding of the type described in clauses (1) (3) of this Section 7.10(c); (5) seek, consent to or acquiesce in the appointment of a receiver, liquidator, conservator, assignee, trustee, sequestrator, custodian or any similar official for the Company or the Partnership, as applicable, or for all or any substantial portion of its properties; or (6) dissolve, liquidate, consolidate, merge, or sell all or substantially all of the assets of the Company or the Partnership, as applicable. In acting or otherwise voting on the matters referred to in this Section 7.10(c)(ii), to the fullest extent permitted by law, including Section 18-1101(c) of the Act and Section 17-1101(c) of the Delaware Revised Uniform Limited Partnership Act, as amended from time to time, the Directors constituting the Conflicts Committee shall consider only the interest of the Company or the Partnership, as applicable, including its respective creditors.
(d) Special Approval of the Conflicts Committee shall be required for any amendment to Section 7.10(c), or this subsection (d), to the definition of Independent Director in Section 7.10(b), and to Section 2.08.
(e) The Board shall have a compensation committee comprised of those Directors appointed thereto from time to time by the Board; provided, however, that if no Directors have been so appointed to the compensation committee, then the entire Board shall serve as the compensation committee (the Compensation Committee). The Compensation Committee shall be charged with setting compensation for officers of the Company and the Partnership, as well as administering any Incentive Plans put in place by the Company or the Partnership.
(f) A majority of any committee may determine its action and fix the time and place of its meetings unless the Board shall otherwise provide. Notice of such meetings shall be given to each member of the committee in the manner provided for in Section 7.05. The Board shall have power at any time to fill vacancies in, or to change the membership of, any committee, or to dissolve any such committee other than the Conflicts Committee. Nothing herein shall be deemed to prevent the Board from appointing one or more committees consisting in whole or in part of persons who are not Directors; provided, however, that no such committee shall have or may exercise any authority of the Board.
Section 7.11 Removal .
Unless and until there occurs a Spring-Back Event, this Section 7.11 shall state in its entirety as follows: [Reserved]. Upon the occurrence of a Spring-Back Event, this Section
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7.11 shall be deemed automatically amended and restated to provide in its entirety as follows: Any Director or the entire Board may be removed, with or without cause, by the holders of a Majority Interest then entitled to vote at an election of Directors.
ARTICLE VIII.
OFFICERS
Section 8.01 Elected Officers .
The executive officers of the Company shall serve at the pleasure of the Board. Such officers shall have the authority and duties delegated to each of them, respectively, by the Board from time to time. The elected officers of the Company shall be a Chairman of the Board, a President, a Secretary, a Treasurer, and such other officers (including, without limitation, Executive Vice Presidents, Senior Vice Presidents and Vice Presidents) as the Board from time to time may deem proper. The Chairman of the Board shall be chosen from among the Directors. All officers elected by the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article VIII. The Board or any committee thereof may from time to time elect such other officers (including one or more Vice Presidents, Controllers, Assistant Secretaries and Assistant Treasurers) as may be necessary or desirable for the conduct of the business of the Company. Such other officers and agents shall have such duties and shall hold their offices for such terms as shall be provided in this Agreement or as may be prescribed by the Board or such committee, as the case may be.
Section 8.02 Election and Term of Office .
The names and titles of the officers of the Company as of December 1, 2003 are set forth on Exhibit B hereto. Thereafter, the officers of the Company shall be elected annually by the Board at the regular meeting of the Board held after the annual meeting referred to in Section 7.02. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as convenient. Each officer shall hold office until such persons successor shall have been duly elected and shall have qualified or until such persons death or until he shall resign or be removed pursuant to Section 8.08.
Section 8.03 Chairman of the Board; Chief Executive Officer .
The Chairman of the Board shall preside at all meetings of the Limited Partners pursuant to Article VII, the Members and the Board and shall be the Chief Executive Officer of the Company. The Chairman of the Board shall be responsible for the general management of the affairs of the Company and shall perform all duties incidental to such persons office which may be required by law and all such other duties as are properly required of him by the Board. He shall make reports to the Board and the Members and shall see that all orders and resolutions of the Board and of any committee thereof are carried into effect. The Directors also may elect a Vice-Chairman to act in the place of the Chairman upon his or her absence or inability to act.
Section 8.04 President; Chief Operating Officer .
The President shall act as the Chief Operating Officer of the Company and shall assist the Chairman of the Board in the administration and operation of the Companys business and
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general supervision of its policies and affairs. The President, if he is also a director, shall, in the absence of or because of the inability to act of the Chairman of the Board, perform all duties of the Chairman of the Board and preside at all meetings of the Limited Partners pursuant to Article VII, the Members and the Board.
Section 8.05 Vice Presidents .
Each Executive Vice President and Senior Vice President and any Vice President shall have such powers and shall perform such duties as shall be assigned to him by the Board.
Section 8.06 Treasurer .
(a) The Treasurer shall exercise general supervision over the receipt, custody and disbursement of corporate funds. The Treasurer shall cause the funds of the Company to be deposited in such banks as may be authorized by the Board, or in such banks as may be designated as depositories in the manner provided by resolution of the Board. The Treasurer shall, in general, perform all duties incident to the office of the Treasurer and shall have such further powers and duties and shall be subject to such directions as may be granted or imposed from time to time by the Board.
(b) Assistant Treasurers shall have such of the authority and perform such of the duties of the Treasurer as may be provided in this Agreement or assigned to them by the Board or the Treasurer. Assistant Treasurers shall assist the Treasurer in the performance of the duties assigned to the Treasurer, and in assisting the Treasurer, each Assistant Treasurer shall for such purpose have the powers of the Treasurer. During the Treasurers absence or inability, the Secretarys authority and duties shall be possessed by such Assistant Treasurer or Assistant Treasurers as the Board may designate.
Section 8.07 Secretary .
(a) The Secretary shall keep or cause to be kept, in one or more books provided for that purpose, the minutes of all meetings of the Board, the committees of the Board and the Members and of the Limited Partners pursuant to Article VII. The Secretary shall see that all notices are duly given in accordance with the provisions of this Agreement and as required by law; shall be custodian of the records and the seal of the Company and affix and attest the seal to all documents to be executed on behalf of the Company under its seal; and shall see that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed; and in general, shall perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to the Secretary by the Board.
(b) Assistant Secretaries shall have such of the authority and perform such of the duties of the Secretary as may be provided in this Agreement or assigned to them by the Board or the Secretary. Assistant Secretaries shall assist the Secretary in the performance of the duties assigned to the Secretary, and in assisting the Secretary, each Assistant Secretary shall for such purpose have the powers of the Secretary. During the Secretarys absence or inability, the Secretarys authority and duties shall be possessed by such Assistant Secretary or Assistant Secretaries as the Board may designate.
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Section 8.08 Removal .
Any officer elected, or agent appointed, by the Board may be removed by the affirmative vote of a majority of the Board whenever, in their judgment, the best interests of the Company would be served thereby. No elected officer shall have any contractual rights against the Company for compensation by virtue of such election beyond the date of the election of such persons successor, such persons death, such persons resignation or such persons removal, whichever event shall first occur, except as otherwise provided in an employment contract or under an employee deferred compensation plan.
Section 8.09 Vacancies .
A newly created elected office and a vacancy in any elected office because of death, resignation or removal may be filled by the Board for the unexpired portion of the term at any meeting of the Board.
ARTICLE IX.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
Section 9.01 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 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 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 Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company 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 9.01 shall be made only out of the assets of the Company.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 9.01(a) in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company 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 9.01.
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(c) The indemnification provided by this Section 9.01 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law or otherwise, both as to actions in the Indemnitees 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 Company may purchase and maintain insurance on behalf of the Company, its Affiliates 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 Companys activities or such Persons activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 9.01, 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 9.01(a); and action taken or omitted by the Indemnitee 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 Company.
(f) An Indemnitee shall not be denied indemnification in whole or in part under this Section 9.01 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.
(g) The provisions of this Section 9.01 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.
(h) No amendment, modification or repeal of this Section 9.01 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 9.01 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 9.02 Liability of Indemnitees .
(a) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the Company or any other Persons who have acquired membership interests in the Company, for losses sustained or liabilities incurred as a result of any act or omission if such Indemnitee acted in good faith.
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(b) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company, such Indemnitee acting in connection with the Companys business or affairs shall not be liable to the Company or to any Member 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 Members to replace such other duties and liabilities of such Indemnitee.
(c) Any amendment, modification or repeal of this Section 9.02 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability to the Company, and the Companys directors, officers and employees under this Section 9.02 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.
ARTICLE X.
TAXES
Section 10.01 Tax Returns .
The Tax Matters Officer (as defined below) of the Company shall prepare and timely file (on behalf of the Company) all federal, state and local tax returns required to be filed by the Company. Each Member shall furnish to the Company all pertinent information in its possession relating to the Companys operations that is necessary to enable the Companys tax returns to be timely prepared and filed. The Company shall bear the costs of the preparation and filing of its returns.
Section 10.02 Tax Elections .
(a) The Company shall make the following elections on the appropriate tax returns:
(i) to adopt as the Companys fiscal year the calendar year;
(ii) to adopt the accrual method of accounting;
(iii) if a distribution of the Companys property as described in Section 734 of the Code occurs or upon a transfer of Membership Interest as described in Section 743 of the Code occurs, on request by notice from any Member, to elect, pursuant to Section 754 of the Code, to adjust the basis of the Companys properties;
(iv) to elect to amortize the organizational expenses of the Company ratably over a period of 60 months as permitted by Section 709(b) of the Code; and
(v) any other election the Board may deem appropriate.
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(b) Neither the Company nor any Member shall make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of applicable state law and no provision of this Agreement (including Section 2.07) shall be construed to sanction or approve such an election.
Section 10.03 Tax Matters Officer .
(a) The Board shall select the President or the Chief Financial Officer (or, if there are no officers serving under such titles, such other officer in a comparable position), of the Company to act as the tax matters partner of the Company pursuant to Section 6231(a)(7) of the Code (the Tax Matters Officer). The Tax Matters Officer shall take such action as may be necessary to cause to the extent possible each Member to become a notice partner within the meaning of Section 6223 of the Code. The Tax Matters Officer shall inform each Member of all significant matters that may come to its attention in its capacity as Tax Matters Officer by giving notice thereof on or before the fifth Business Day after becoming aware thereof and, within that time, shall forward to each Member copies of all significant written communications it may receive in that capacity.
(b) The Tax Matters Officer shall take no action without the authorization of the Board, other than such action as may be required by Applicable Law. Any cost or expense incurred by the Tax Matters Officer in connection with its duties, including the preparation for or pursuance of administrative or judicial proceedings, shall be paid by the Company.
(c) The Tax Matters Officer shall not enter into any extension of the period of limitations for making assessments on behalf of the Members without first obtaining the consent of the Board. The Tax Matters Officer shall not bind any Member to a settlement agreement without obtaining the consent of such Member. Any Member that enters into a settlement agreement with respect to any Company item (as described in Section 6231(a)(3) of the Code) shall notify the other Members of such settlement agreement and its terms within 90 Days from the date of the settlement.
(d) No Member shall file a request pursuant to Section 6227 of the Code for an administrative adjustment of Company items for any taxable year without first notifying the other Members. If the Board consents to the requested adjustment, the Tax Matters Officer shall file the request for the administrative adjustment on behalf of the Members. If such consent is not obtained within 30 Days from such notice, or within the period required to timely file the request for administrative adjustment, if shorter, any Member may file a request for administrative adjustment on its own behalf. Any Member intending to file a petition under Sections 6226, 6228 or other Section of the Code with respect to any item involving the Company shall notify the other Members of such intention and the nature of the contemplated proceeding. In the case where the Tax Matters Officer is intending to file such petition on behalf of the Company, such notice shall be given within a reasonable period of time to allow the Members to participate in the choosing of the forum in which such petition will be filed.
(e) If any Member intends to file a notice of inconsistent treatment under Section 6222(b) of the Code, such Member shall give reasonable notice under the circumstances to the other Members of such intent and the manner in which the Members intended treatment of an item is (or may be) inconsistent with the treatment of that item by the other Members.
29
ARTICLE XI.
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
Section 11.01 Maintenance of Books .
(a) The Board shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board and of the Members and of the Limited Partners pursuant to Article VII, appropriate registers and such books of records and accounts as may be necessary for the proper conduct of the business of the Company.
(b) The books of account of the Company shall be (i) maintained on the basis of a fiscal year that is the calendar year, (ii) maintained on an accrual basis in accordance with GAAP, consistently applied and (iii) audited by the Certified Public Accountants at the end of each calendar year.
Section 11.02 Reports .
With respect to each calendar year, the Board shall prepare, or cause to be prepared, and deliver, or cause to be delivered, to each Member:
(a) Within 120 Days after the end of such calendar year, a profit and loss statement and a statement of cash flows for such year, a balance sheet and a statement of each Members Capital Account as of the end of such year, together with a report thereon of the Certified Public Accountants; and
(b) Such federal, state and local income tax returns and such other accounting, tax information and schedules as shall be necessary for the preparation by each Member on or before June 15 following the end of each calendar year of its income tax return with respect to such year.
Section 11.03 Bank Accounts .
Funds of the Company shall be deposited in such banks or other depositories as shall be designated from time to time by the Board. All withdrawals from any such depository shall be made only as authorized by the Board and shall be made only by check, wire transfer, debit memorandum or other written instruction.
ARTICLE XII.
DISSOLUTION, WINDING-UP, TERMINATION AND CONVERSION
Section 12.01 Dissolution .
(a) The Company shall dissolve and its affairs shall be wound up on the first to occur of the following events (each a Dissolution Event):
30
(i) the unanimous consent of the Members; or
(ii) entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act; or
(iii) at any time there are no Members of the Company, unless the Company is continued in accordance with the Act or this Agreement.
(b) No other event shall cause a dissolution of the Company.
(c) Upon the occurrence of any event that causes there to be no Members of the Company, to the fullest extent permitted by law, the personal representative of the last remaining Member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such Member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute Member of the Company, effective as of the occurrence of the event that terminated the continued membership of such Member in the Company.
(d) Notwithstanding any other provision of this Agreement, the Bankruptcy of a Member shall not cause such Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
Section 12.02 Winding-Up and Termination .
(a) On the occurrence of a Dissolution Event, the Board shall act as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Act. The costs of winding up shall be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company properties with all of the power and authority of the Members. The steps to be accomplished by the liquidator are as follows:
(i) as promptly as possible after dissolution and again after final winding up, the liquidator shall cause a proper accounting to be made by a recognized firm of certified public accountants of the Companys assets, liabilities, and operations through the last Day of the month in which the dissolution occurs or the final winding up is completed, as applicable;
(ii) the liquidator shall discharge from Company funds all of the debts, liabilities and obligations of the Company (including all expenses incurred in winding up or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash escrow fund for contingent, conditional and unmatured liabilities in such amount and for such term as the liquidator may reasonably determine); and
(iii) all remaining assets of the Company shall be distributed to the Members as follows:
31
(A) the liquidator may sell any or all Company property, including to Members, and any resulting gain or loss from each sale shall be computed and allocated to the Capital Accounts of the Members in accordance with the provisions of Article VI;
(B) with respect to all Company property that has not been sold, the fair market value of that property shall be determined and the Capital Accounts of the Members shall be adjusted to reflect the manner in which the unrealized income, gain, loss, and deduction inherent in property that has not been reflected in the Capital Accounts previously would be allocated among the Members if there were a taxable disposition of that property for the fair market value of that property on the date of distribution; and
(C) Company property (including cash) shall be distributed among the Members in accordance with Section 6.02; and, to the extent practicable, those distributions shall be made by the end of the taxable year of the Company during which the liquidation of the Company occurs (or, if later, 90 Days after the date of the liquidation);
provided, however, that notwithstanding the foregoing provisions of clauses (A), (B) and (C) immediately above, if the obligation to maintain Capital Accounts has been suspended under Section 13.12 of this Agreement, no allocations shall be made and all Company property shall be distributed to the sole Member.
(b) The distribution of cash or property to a Member in accordance with the provisions of this Section 12.02 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its Membership Interest and all the Companys property and constitutes a compromise to which all Members have consented pursuant to Section 18-502(b) of the Act. To the extent that a Member returns funds to the Company, it has no claim against any other Member for those funds.
Section 12.03 Deficit Capital Accounts .
No Member will be required to pay to the Company, to any other Member or to any third party any deficit balance that may exist from time to time in the Members Capital Account.
Section 12.04 Certificate of Cancellation .
On completion of the distribution of Company assets as provided herein, the Members (or such other Person or Persons as the Act may require or permit) shall file a certificate of cancellation with the Secretary of State of Delaware, cancel any other filings made pursuant to Section 2.05, and take such other actions as may be necessary to terminate the existence of the Company. Upon the filing of such certificate of cancellation, the existence of the Company shall terminate (and the Term shall end), except as may be otherwise provided by the Act or by Applicable Law.
32
ARTICLE XIII.
GENERAL PROVISIONS
Section 13.01 Offset .
Whenever the Company is to pay any sum to any Member, any amounts that Member owes the Company may be deducted from that sum before payment.
Section 13.02 Notices .
Except as otherwise provided with respect to the annual meeting of the Limited Partners pursuant to Section 7.02, all notices, demands, requests, consents, approvals or other communications (collectively, Notices) required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by telegram, telex or facsimile. Notice otherwise sent as provided herein shall be deemed given upon delivery of such notice:
To the Company :
Magellan GP, LLC
One Williams Center, MD 28-1
Tulsa, Oklahoma 74172
Attn: Lonny E. Townsend, General Counsel
Telephone: (918) 573-2598
Fax: (918) 573-1055
To MMH :
c/o Magellan GP, LLC
One Williams Center, MD 28-1
Tulsa, Oklahoma 74172
Attn: Lonny E. Townsend, General Counsel
Telephone: (918) 573-2598
Fax: (918) 573-1055
Section 13.03 Entire Agreement; Superseding Effect .
This Agreement constitutes the entire agreement of the Members relating to the Company and the transactions contemplated hereby, and supersedes all provisions and concepts contained in all prior contracts or agreements between the Members with respect to the Company, whether oral or written.
33
Section 13.04 Effect of Waiver or Consent .
Except as otherwise provided in this Agreement, a waiver or consent, express or implied, to or of any breach or default by any Member in the performance by that Member of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Member of the same or any other obligations of that Member with respect to the Company. Except as otherwise provided in this Agreement, failure on the part of a Member to complain of any act of any Member or to declare any Member in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Member of its rights with respect to that default until the applicable statute-of-limitations period has run.
Section 13.05 Amendment or Restatement .
Subject to the provisions of Section 7.02(e) and Section 7.10(d), this Agreement or the Delaware Certificate may be amended or restated only by a written instrument executed (or, in the case of the Delaware Certificate, approved) by the Members; provided, however, that, subject to the provisions of Section 7.02(e) and Section 7.10(d), any amendment to the provisions of Article VII shall be approved by the Board; provided further, that, Section 7.01 may be amended or restated only by approval of the Board and the Members.
Section 13.06 Binding Effect .
Subject to the restrictions on Dispositions set forth in this Agreement, this Agreement is binding on and shall inure to the benefit of the Members and their respective successors and permitted assigns.
Section 13.07 Governing Law; Severability .
THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event of a direct conflict between the provisions of this Agreement and any mandatory, non-waivable provision of the Act, such provision of the Act shall control. If any provision of the Act may be varied or superseded in a limited liability company agreement (or otherwise by agreement of the members or managers of a limited liability company), such provision shall be deemed superseded and waived in its entirety if this Agreement contains a provision addressing the same issue or subject matter. If any provision of this Agreement or the application thereof to any Member or circumstance is held invalid or unenforceable to any extent, (a) the remainder of this Agreement and the application of that provision to other Members or circumstances is not affected thereby, and (b) the Members shall negotiate in good faith to replace that provision with a new provision that is valid and enforceable and that puts the Members in substantially the same economic, business and legal position as they would have been in if the original provision had been valid and enforceable.
34
Section 13.08 Further Assurances .
In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions.
Section 13.09 Waiver of Certain Rights .
Each Member irrevocably waives any right it may have to maintain any action for dissolution of the Company or for partition of the property of the Company.
Section 13.10 Counterparts .
This Agreement may be executed in any number of counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument.
Section 13.11 Jurisdiction .
Any and all Claims arising out of, in connection with or in relation to (i) the interpretation, performance or breach of this Agreement, or (ii) any relationship before, at the time of entering into, during the term of, or upon or after expiration or termination of this Agreement, between the parties hereto, shall be brought in any court of competent jurisdiction in the State of Delaware. Each party hereto unconditionally and irrevocably consents to the jurisdiction of any such court over any Claims and waives any objection that such party may have to the laying of venue of any Claims in any such court.
Section 13.12 Suspension of Certain Provisions If Only One Member .
(a) The following definitions in Article I of this Agreement shall be suspended and shall have no force or effect at any time that there is only one Member of the Company:
(i) Adjusted Capital Account Deficit,
(ii) Capital Account,
(iii) Depreciation,
(iv) Gross Asset Value,
(v) Profits and Losses,
(vi) Target Capital Account Amount, and
(vii) Treasury Regulations.
35
(b) The following provision of this Agreement shall be suspended and shall have no force or effect at any time that there is only one Member of the Company:
(i) Section 5.04 (Capital Accounts);
(ii) Section 6.03 (Allocations);
(iii) Section 6.04 (Varying Interests);
(iv) Section 6.05 (Tax Distributions);
(v) Section 6.06 (Withheld Taxes);
(vi) Section 10.01 (Tax Returns);
(vii) Section 10.02 (Tax Elections); and
(viii) Section 12.03 (Deficit Capital Accounts).
[SIGNATURE PAGE FOLLOWS]
36
IN WITNESS WHEREOF, the Member has executed this Agreement as of the date first set forth above.
MEMBER: | ||||
MAGELLAN MIDSTREAM HOLDINGS, L.P. |
||||
By: |
Magellan Midstream Management, LLC, its general partner | |||
By: |
/s/ Don R. Wellendorf |
|||
Name: |
Don R. Wellendorf |
|||
Title: |
President & Chief Executive Officer |
37
EXHIBIT A
Member |
Sharing Ratio
|
Effective Capital
Contribution |
||||
Magellan Midstream Holdings, L.P. |
100 | % | $ | 1,000.00 |
1
EXHIBIT B
John D. Chandler |
Vice President, Chief Financial Officer and Treasurer |
|
Suzanne H. Costin |
Secretary |
|
Michael N. Mears |
Vice President |
|
Richard A. Olson |
Vice President |
|
Brett C. Riley |
Vice President |
|
Lonny E. Townsend |
Vice President, General Counsel and Assistant Secretary |
|
Don R. Wellendorf |
Chairman of the Board, President and Chief Executive Officer |
|
Jay A. Wiese |
Vice President |
1
EXHIBIT C
DIRECTORS
Justin S. Huscher |
Class I | |
David M. Leuschen |
Class I | |
James R. Montague |
Class I | |
Patrick C. Eilers |
Class II | |
Pierre F. Lapeyre, Jr. |
Class II | |
Mark G. Papa |
Class III | |
Don R. Wellendorf |
Class III |
2
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS
Section 1.01 |
Definitions. |
1 | ||
Section 1.02 |
Construction. |
9 | ||
ARTICLE II. ORGANIZATION |
||||
Section 2.01 |
Formation. |
9 | ||
Section 2.02 |
Name |
10 | ||
Section 2.03 |
Registered Office; Registered Agent; Principal Office. |
10 | ||
Section 2.04 |
Purposes. |
10 | ||
Section 2.05 |
Foreign Qualification. |
11 | ||
Section 2.06 |
Term |
11 | ||
Section 2.07 |
No State Law Partnership. |
11 | ||
Section 2.08 |
Certain Undertakings Relating to the Separateness of the Company and the Partnership |
11 | ||
ARTICLE III. MEMBERSHIP |
||||
Section 3.01 |
Membership Interests; Additional Members. |
12 | ||
Section 3.02 |
Access to Information. |
12 | ||
Section 3.03 |
Liability. |
13 | ||
Section 3.04 |
Withdrawal. |
13 | ||
ARTICLE IV. DISPOSITION OF MEMBERSHIP INTERESTS |
||||
Section 4.01 |
General Restriction. |
13 | ||
Section 4.02 |
Admission of Assignee as a Member. |
13 | ||
Section 4.03 |
Requirements Applicable to All Dispositions and Admissions. |
14 | ||
ARTICLE V. CAPITAL CONTRIBUTIONS |
||||
Section 5.01 |
Initial Capital Contributions. |
14 | ||
Section 5.02 |
Loans |
14 | ||
Section 5.03 |
Return of Contributions. |
14 | ||
Section 5.04 |
Capital Accounts. |
14 | ||
ARTICLE VI. DISTRIBUTIONS AND ALLOCATIONS |
||||
Section 6.01 |
Distributions. |
15 |
Section 6.02 |
Distributions on Dissolution and Winding Up. |
15 | ||
Section 6.03 |
Allocations. |
15 | ||
Section 6.04 |
Varying Interests. |
17 | ||
Section 6.05 |
Tax Distributions. |
18 | ||
Section 6.06 |
Withheld Taxes. |
18 | ||
Section 6.07 |
Limitations on Distributions. |
18 | ||
ARTICLE VII. MANAGEMENT |
||||
Section 7.01 |
Management by Board of Directors and Executive Officers. |
18 | ||
Section 7.02 |
Adoption of Section 13.4(c) of the Partnership Agreement. |
19 | ||
Section 7.03 |
Regular Meetings. |
21 | ||
Section 7.04 |
Special Meetings. |
21 | ||
Section 7.05 |
Notice |
21 | ||
Section 7.06 |
Action by Consent of Board. |
21 | ||
Section 7.07 |
Conference Telephone Meetings. |
21 | ||
Section 7.08 |
Quorum. |
22 | ||
Section 7.09 |
Vacancies; Increases in the Number of Directors. |
22 | ||
Section 7.10 |
Committees. |
22 | ||
Section 7.11 |
Removal. |
23 | ||
ARTICLE VIII. OFFICERS |
||||
Section 8.01 |
Elected Officers. |
24 | ||
Section 8.02 |
Election and Term of Office. |
24 | ||
Section 8.03 |
Chairman of the Board; Chief Executive Officer. |
24 | ||
Section 8.04 |
President; Chief Operating Officer. |
24 | ||
Section 8.05 |
Vice Presidents. |
25 | ||
Section 8.06 |
Treasurer. |
25 | ||
Section 8.07 |
Secretary. |
25 | ||
Section 8.08 |
Removal. |
26 | ||
Section 8.09 |
Vacancies. |
26 | ||
ARTICLE IX. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS |
||||
Section 9.01 |
Indemnification. |
26 | ||
Section 9.02 |
Liability of Indemnitees. |
27 | ||
ARTICLE X. TAXES |
||||
Section 10.01 |
Tax Returns. |
28 | ||
Section 10.02 |
Tax Elections. |
28 |
Section 10.03 |
Tax Matters Officer. |
29 | ||
ARTICLE XI. BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS |
||||
Section 11.01 |
Maintenance of Books. |
30 | ||
Section 11.02 |
Reports. |
30 | ||
Section 11.03 |
Bank Accounts. |
30 | ||
ARTICLE XII. DISSOLUTION, WINDING-UP, TERMINATION AND CONVERSION |
||||
Section 12.01 |
Dissolution. |
30 | ||
Section 12.02 |
Winding-Up and Termination. |
31 | ||
Section 12.03 |
Deficit Capital Accounts. |
32 | ||
Section 12.04 |
Certificate of Cancellation. |
32 | ||
ARTICLE XIII. GENERAL PROVISIONS |
||||
Section 13.01 |
Offset |
33 | ||
Section 13.02 |
Notices. |
33 | ||
Section 13.03 |
Entire Agreement; Superseding Effect. |
33 | ||
Section 13.04 |
Effect of Waiver or Consent. |
34 | ||
Section 13.05 |
Amendment or Restatement. |
34 | ||
Section 13.06 |
Binding Effect. |
34 | ||
Section 13.07 |
Governing Law; Severability. |
34 | ||
Section 13.08 |
Further Assurances. |
35 | ||
Section 13.09 |
Waiver of Certain Rights. |
35 | ||
Section 13.10 |
Counterparts. |
35 | ||
Section 13.11 |
Jurisdiction |
35 | ||
Section 13.12 |
Suspension of Certain Provisions If Only One Member. |
35 |
AMENDED & RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
MAGELLAN GP, LLC
A Delaware Limited Liability Company
Dated as of
December 1, 2003
Exhibit 3(h)
FIRST AMENDMENT TO
AMENDED & RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
MAGELLAN GP, LLC
This First Amendment (this Amendment ) dated as of February 3, 2004, to the Amended & Restated Limited Liability Company Agreement (the Agreement ) of Magellan GP, LLC (the Company ), a Delaware limited liability company, dated as of December 1, 2003, is adopted, executed and agreed to by Magellan Midstream Holdings, L.P., a Delaware limited partnership, as the sole member ( Member ) of the Company, pursuant to authority granted in Section 13.05 of the Agreement. Capitalized terms used but not defined herein are used as defined in the Agreement.
WHEREAS , Section 13.05 of the Agreement provides that the Agreement may only be amended by a written instrument executed by the Member (except in the case of amendments to certain provisions contained in Article VII that must be approved by the Board and are otherwise subject to the restrictions on amendment contained in such Article);
WHEREAS , the Board of Directors of the Company approved the form of this Amendment at a meeting held February 3, 2004 at which a quorum was present and acting throughout;
WHEREAS , the Member deems it to be in the best interest of the Company to amend Section 7.05 to allow notices of meetings to be delivered by e-mail.
NOW, THEREFORE , the Agreement is hereby amended as follows:
1. The second sentence of Section 7.05 is hereby amended and restated to read in its entirety as follows:
All notices and other communications to be given to Directors shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service or three days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or when received in the form of an e-mail, telegram or facsimile, and shall be directed to the address, e-mail address or facsimile number as such Director shall designate by notice to the Company.
2. Except as hereby amended, the Agreement shall remain in full force and effect.
3. 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 laws.
4. Each provision of this Amendment shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Amendment that are valid, enforceable and legal.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.
Magellan Midstream Holdings, L.P., Member |
||
By: Magellan Midstream Management, LLC, its general partner | ||
By: |
/s/ Don R. Wellendorf |
|
Name: |
Don R. Wellendorf |
|
Title: |
Chief Executive Officer & President |
2
Exhibit 10(a)
FOURTH AMENDED AND RESTATED
MAGELLAN MIDSTREAM PARTNERS
LONG-TERM INCENTIVE PLAN
February 3, 2004
SECTION 1. Purpose of the Plan .
The Magellan Midstream Partners Long-Term Incentive Plan (the Plan) is intended to promote the interests of Magellan Midstream Partners, L.P., a Delaware limited partnership (the Partnership), by providing to employees providing services to and directors of Magellan GP, LLC, a Delaware limited liability company (the Company), the general partner of the Partnership, and its Affiliates who perform services for the Partnership incentive compensation awards for superior performance that are based on Units. Solely for the purposes of determining those employees eligible for participation in the Plan, Magellan Midstream Management, LLC and its Affiliates shall be deemed to be Affiliates of the Company for so long as Magellan Midstream Management, LLC and/or its Affiliates own a 50% or greater membership interest in the Company. The Plan is also contemplated to enhance the ability of the Company and its Affiliates to attract and retain the services of individuals who are essential for the growth and profitability of the Partnership and to encourage them to devote their best efforts to the business of the Partnership, thereby advancing the interests of the Partnership and its partners.
SECTION 2. Definitions .
As used in the Plan, the following terms shall have the meanings set forth below:
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.
Award means an Option, Phantom Unit or Performance Award granted under the Plan, and shall include any tandem DERs granted with respect to a Phantom Unit.
Award Agreement means the written agreement by which an Award shall be evidenced.
Board means the Board of Directors of the Company.
Committee means the Compensation Committee of the Board or such other committee of the Board appointed by the Board to administer the Plan.
DER means a contingent right, granted in tandem with a specific Phantom Unit, to receive an amount in cash equal to the cash distributions made by the Partnership with respect to a Unit during the period such Phantom Unit is outstanding.
Director means a member of the Board who is not an Employee.
Disability shall have the meaning ascribed to such term in the Companys governing long-term disability plan, or if no such plan is applicable to the Participant, at the discretion of the Board.
Employee means any employee of the Company or an Affiliate who performs services for the Partnership, as determined by the Committee.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fair Market Value means the closing sales price of a Unit on the applicable date (or if there is no trading in the Units on such date, on the next preceding date on which there was trading) as reported in The Wall Street Journal (or other reporting service approved by the Committee). In the event Units are not publicly traded at the time a determination of fair market value is required to be made hereunder, the determination of fair market value shall be made in good faith by the Committee.
MMM, LLC means Magellan Midstream Management, LLC.
Option means an option to purchase Units granted under the Plan.
Participant means any Employee or Director granted an Award under the Plan.
Partnership Agreement means the Second Amended and Restated Agreement of Limited Partnership of Williams Energy Partners L.P, as it may be amended or amended and restated from time to time.
Performance Award means a right, granted under Section 6(c) hereof, to receive Awards based upon performance criteria specified by the Committee.
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.
Phantom Unit means a phantom (notional) Unit granted under the Plan which upon vesting entitles the Participant to receive a Unit or an amount of cash equal to the Fair Market Value of a Unit, whichever is determined by the Committee.
Restricted Period means the period established by the Committee with respect to an Award during which the Award remains subject to forfeiture and is not exercisable by or payable to the Participant.
Retirement shall have the meaning ascribed to such term in the Companys governing tax-qualified retirement plan applicable to the Participant, or if no such plan is applicable to the Participant, at the discretion of the Committee.
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Rule 16b-3 means Rule 16b-3 promulgated by the SEC under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time.
SEC means the Securities and Exchange Commission, or any successor thereto.
Unit means a Common Unit of the Partnership.
SECTION 3. Administration .
The Plan shall be administered by the Committee. A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing, shall be the acts of the Committee. Subject to the following and any applicable law, the Committee, in its sole discretion, may delegate any or all of its powers and duties under the Plan, including the power to grant Awards under the Plan, to the Chief Executive Officer of the Company, subject to such limitations on such delegated powers and duties as the Committee may impose, if any. Upon any such delegation all references in the Plan to the Committee, other than in Section 7, shall be deemed to include the Chief Executive Officer; provided, however, that such delegation shall not limit the Chief Executive Officers right to receive Awards under the Plan. Notwithstanding the foregoing, the Chief Executive Officer may not grant Awards to, or take any action with respect to any Award previously granted to, a person who is an officer subject to Rule 16b-3 or a member of the Board. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Units to be covered by Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled, exercised, canceled, or forfeited; (vi) interpret and administer the Plan and any instrument or agreement relating to an Award made under the Plan; (vii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (viii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons, including the Company, the Partnership, any Affiliate, any Participant, and any beneficiary of any Award.
SECTION 4. Units .
(a) Units Available . Subject to adjustment as provided in Section 4(c), the number of Units with respect to which Awards may be granted under the Plan is 700,000. If any Option or Phantom Unit is forfeited or otherwise terminates or is canceled without the delivery of Units, then the Units covered by such Award, to the extent of such forfeiture, termination or cancellation, shall again be Units with respect to which Awards may be granted.
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(b) Sources of Units Deliverable Under Awards . Any Units delivered pursuant to an Award shall consist, in whole or in part, of Units acquired in the open market, from any Affiliate, the Partnership or any other Person, or any combination of the foregoing.
(c) Adjustments . In the event that the Committee determines that any distribution (whether in the form of cash, Units, other securities, or other property), recapitalization, split, reverse split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Units or other securities of the Partnership, issuance of warrants or other rights to purchase Units or other securities of the Partnership, or other similar transaction or event affects the Units such that an adjustment is determined by the Committee to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number and type of Units (or other securities or property) with respect to which Awards may be granted, (ii) the number and type of Units (or other securities or property) subject to outstanding Awards, and (iii) the grant or exercise price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award; provided, that the number of Units subject to any Award shall always be a whole number.
SECTION 5. Eligibility .
Any Employee or Director shall be eligible to be designated a Participant and receive an Award under the Plan.
SECTION 6. Awards .
(a) Options . The Committee shall have the authority to determine the Employees and Directors to whom Options shall be granted, the number of Units to be covered by each Option, the purchase price therefor and the conditions and limitations applicable to the exercise of the Option, including the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Plan.
(i) Exercise Price . The purchase price per Unit purchasable under an Option shall be determined by the Committee at the time the Option is granted and may be more or less than its Fair Market Value as of the date of grant.
(ii) Time and Method of Exercise . The Committee shall determine the Restricted Period, i.e., the time or times at which an Option may be exercised in whole or in part, which may include, without limitation, accelerated vesting upon the achievement of specified performance goals, and the method or methods by which payment of the exercise price with respect thereto may be made or deemed to have been made, which may include, without limitation, cash, check acceptable to the Company, a cashless-broker exercise through procedures approved by the Company, other securities or other property, or any combination thereof, having a Fair Market Value on the exercise date equal to the relevant exercise price.
(iii) Forfeiture . Except as otherwise provided in the terms of the Option grant, upon termination of a Participants employment with the Company and its Affiliates or
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membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all Options shall be forfeited by the Participant. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participants Options.
(b) Phantom Units . The Committee shall have the authority to determine the Employees and Directors to whom Phantom Units shall be granted, the number of Phantom Units to be granted to each such Participant, the Restricted Period, the conditions under which the Phantom Units may become vested or forfeited, which may include, without limitation, the accelerated vesting upon the achievement of specified performance goals, and such other terms and conditions as the Committee may establish with respect to such Awards, including whether DERs are granted with respect to such Phantom Units.
(i) DERs . To the extent provided by the Committee, in its discretion, a grant of Phantom Units may include a tandem DER grant, which may provide that such DERs shall be paid directly to the Participant, be credited to a bookkeeping account (with or without interest in the discretion of the Committee) subject to the same vesting restrictions as the tandem Award, or be subject to such other provisions or restrictions as determined by the Committee in its discretion.
(ii) Forfeiture . Except as otherwise provided in the terms of the Phantom Units grant, upon termination of a Participants employment with the Company and its Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all Phantom Units shall be forfeited by the Participant. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participants Phantom Units.
(iii) Lapse of Restrictions . Upon or as soon as reasonably practical following the vesting of each Phantom Unit, subject to the provisions of Section 8(b), the Participant shall be entitled to receive from the Company one Unit or cash equal to the Fair Market Value of a Unit, as determined by the Committee in its discretion.
(c) Performance Awards . The Committee is authorized to grant Performance Awards to Participants on the following terms and conditions:
(i) Right to Payment . A Performance Award shall confer upon Participant rights, valued as determined by the Committee, and payable to, or exercisable by, the Participant to whom the Performance Award is granted, in whole or in part, as the Committee shall establish at grant or thereafter. The performance criteria and all other terms and conditions of the Performance Award shall be determined by the Committee upon the grant of each Performance Award or thereafter.
(ii) Other Terms . A Performance Award may be denominated or payable in cash, deferred cash, Units, other Awards or other property, and other terms of Performance Awards shall be, as determined by the Committee.
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(d) General .
(i) Awards May Be Granted Separately or Together . Awards may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution for any other Award granted under the Plan or any award granted under any other plan of the Company or any Affiliate. Awards granted in addition to or in tandem with other Awards or awards granted under any other plan of the Company or any Affiliate may be granted either at the same time as or at a different time from the grant of such other Awards or awards.
(ii) Limits on Transfer of Awards .
(A) Except as provided in (C) below, each Option shall be exercisable only by the Participant during the Participants lifetime, or by the person to whom the Participants rights shall pass by will or the laws of descent and distribution.
(B) Except as provided in (C) below, no Award and no right under any such Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate.
(C) To the extent specifically provided by the Committee with respect to an Option grant, an Option may be transferred by a Participant without consideration to immediate family members or related family trusts, limited partnerships or similar entities or on such terms and conditions as the Committee may from time to time establish. In addition, Awards may be transferred by will and the laws of descent and distribution.
(iii) Term of Awards . The term of each Award shall be for such period as may be determined by the Committee.
(iv) Unit Certificates . All certificates for Units or other securities of the Partnership delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Units or other securities are then listed, and any applicable federal or state laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
(v) Consideration for Grants . Awards may be granted for such consideration, including services, as the Committee determines.
(vi) Delivery of Units or other Securities and Payment by Participant of Consideration . Notwithstanding anything in the Plan or any grant agreement to the contrary, delivery of Units pursuant to the exercise or vesting of an Award may be deferred for any period during which, in the good faith determination of the Committee, the Company is not reasonably able to obtain Units to deliver pursuant to such Award
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without violating the rules or regulations of any applicable law or securities exchange. No Units or other securities shall be delivered pursuant to any Award until payment in full of any amount required to be paid pursuant to the Plan or the applicable Award grant agreement (including, without limitation, any exercise price or tax withholding) is received by the Company. Such payment may be made by such method or methods and in such form or forms as the Committee shall determine, including, without limitation, cash, cashless-broker exercises with simultaneous sale, or any combination thereof; provided that the combined value, as determined by the Committee, of all cash and cash equivalents and the Fair Market Value of any such Units or other property so tendered to the Company, as of the date of such tender, is at least equal to the full amount required to be paid to the Company pursuant to the Plan or the applicable Award Agreement.
SECTION 6A. Change in Control .
(a) Awards Granted Prior to February 3, 2003 . Upon a Change in Control or such period prior thereto as may be established by the Committee, all Awards granted prior to February 3, 2003 shall automatically vest and become payable or exercisable, as the case may be, in full and all Restricted Periods shall terminate and all performance criteria, if any, shall be deemed to have been achieved at the maximum level with respect to such Awards.
(b) Awards Granted On or After February 3, 2003, and Prior to a Change in Control . If, within two (2) years following a Change in Control, a Participant has a Termination of Affiliation (excluding any transfer to an Affiliate of the Company) voluntarily for Good Reason or involuntarily (other than due to Cause), Awards granted on or after February 3, 2003, and prior to a Change in Control, shall automatically vest and become payable or exercisable, as the case may be, in full, and all Restricted Periods shall terminate and all performance criteria, if any, shall be deemed to have been achieved at the maximum level with respect to such Awards. To the extent an Option granted on or after February 3, 2003, and prior to a Change in Control, is not exercised upon a Change in Control, the Committee may, in its discretion, cancel such Award without payment or provide for a replacement grant with respect to such property and on such terms as it deems appropriate.
(c) Definitions . For purposes of this Section 6A only, the following terms shall have the meanings set forth below:
(i) Cause means, unless otherwise defined in an Award Agreement, the occurrence of any one or more of the following, as determined in the good faith and reasonable judgment of the Committee: (i) willful failure by a Participant to substantially perform his or her duties (as they existed immediately prior to a Change of Control), other than any such failure resulting from a Disability, or (ii) gross negligence or willful misconduct of the Participant which results in a significantly adverse effect upon the Company, the Partnership, or an Affiliate thereof, or (iii) willful violation or disregard of the code of business conduct or other published policy of the Company, the Partnership, or an Affiliate thereof by the Participant, or (iv) Participants conviction of a crime involving an act of fraud, embezzlement, theft, or any other act constituting a felony or causing material harm, financial or otherwise, to the Company, the Partnership, or an Affiliate thereof.
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(ii) Change in Control shall be deemed to have occurred upon the occurrence of one or more of the following events: (i) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Partnership or the Company to any Person or its Affiliates, other than to MMM, LLC and/or its Affiliates; (ii) the consolidation, reorganization, merger or other transaction pursuant to which more than 50% of the combined voting power of the outstanding equity interests in the Company cease to be owned by MMM, LLC and its Affiliates; or (iii) the general partner (whether the Company or any other Person) of the Partnership ceases to be an Affiliate of MMM, LLC.
(iii) Termination of Affiliation occurs on the first day on which an individual is for any reason no longer providing services to the Company, the Partnership, or an Affiliate thereof.
(iv) Good Reason means, unless otherwise defined in an Award Agreement, the occurrence, within two years following a Change of Control and without a Participants prior written consent, of any one or more of the following:
(1) a material change in the Participants duties from those assigned to the Participant immediately prior to a Change of Control, unless associated with a bona fide promotion of the Participant and a commensurate increase in the Participants compensation, in which case the Participant shall be deemed to consent;
(2) a significant reduction in the authority and responsibility assigned to the Participant;
(3) the removal of the Participant from, or failure to reelect the Participant to, any corporate or similar office of the Company, the Partnership, or an Affiliate thereof to which the Participant may have been elected and was occupying immediately prior to a Change of Control, unless associated with a bona fide promotion of the Participant and a commensurate increase in the Participants compensation or in connection with the election or appointment of the Participant to a corresponding or higher office of the Company or any Affiliate, in each which case the Participant shall be deemed to consent;
(4) reduction of a Participants base salary;
(5) termination of any of the incentive compensation plans of the Partnership or the Company in which the Participant shall be participating at the time of a Change of Control, unless such plan is replaced by a successor plan providing incentive opportunities and awards at least as favorable to the Participant as those provided in the plan being terminated;
(6) amendment of any of the incentive compensation plans of the Partnership or the Company in which the Participant shall be participating at the time of a Change of Control so as to provide for incentive opportunities and awards less favorable to the Participant than those provided in the plan being amended;
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(7) failure by the Company, the Partnership, or an Affiliate thereof to continue the Participant as a participant in any of the Companys or Partnerships incentive compensation plans in which the Participant is participating immediately prior to a Change of Control on a basis comparable to the basis on which other similarly situated employees participate in such plan;
(8) except in relation to a wage freeze applicable to all employees of the Company, the Partnership, or an Affiliate thereof, modification of the administration of any of the incentive compensation plans so as to adversely affect the level of incentive opportunities or awards actually received by the Participant;, or
(9) a requirement by the Company, the Partnership, or an Affiliate thereof that the Participants principal duties be performed at a location more than fifty (50) miles from the location where the Participant was employed immediately preceding the Change of Control, except for travel reasonably required in the performance of the Participants duties.
SECTION 7. Amendment and Termination .
Except to the extent prohibited by applicable law:
(a) Amendments to the Plan . Except as required by the rules of the principal securities exchange on which the Units are traded and subject to Section 7(b) below, the Board or the Committee may amend, alter, suspend, discontinue, or terminate the Plan in any manner, including increasing the number of Units available for Awards under the Plan, without the consent of any partner, Participant, other holder or beneficiary of an Award, or other Person; provided, however, that no amendment to the Plan may be made without the approval of a Unit Majority (as defined in the Partnership Agreement) that would permit DERs to be granted prior to the end of the Subordination Period (as defined in the Partnership Agreement).
(b) Amendments to Awards . Subject to Section 7(a), the Committee may waive any conditions or rights under, amend any terms of, or alter any Award theretofore granted, provided no change, other than pursuant to Section 7(c), in any Award shall materially reduce the benefit to Participant without the consent of such Participant.
(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events . The Committee is hereby authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events (including, without limitation, the events described in Section 4(c) of the Plan) affecting the Partnership or the financial statements of the Partnership, or of changes in applicable laws, regulations, or accounting principles, whenever the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan.
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SECTION 8. General Provisions .
(a) No Rights to Award . No Person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Participants. The terms and conditions of Awards need not be the same with respect to each recipient.
(b) Withholding . The Company or any Affiliate is authorized to withhold from any Award, from any payment due or transfer made under any Award or from any compensation or other amount owing to a Participant the amount (in cash, Units, other securities, Units that would otherwise be issued pursuant to such Award or other property) of any applicable taxes payable in respect of the grant of an Award, its exercise, the lapse of restrictions thereon, or any payment or transfer under an Award or under the Plan and to take such other action as may be necessary in the opinion of the Company to satisfy its withholding obligations for the payment of such taxes. In no event shall the withholding for taxes exceed that which is necessary to satisfy the employers minimum withholding requirements.
(c) No Right to Employment . The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the Company or any Affiliate or to remain on the Board, as applicable. Further, the Company or an Affiliate may at any time dismiss a Participant from employment, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or in any Award agreement.
(d) Governing Law . The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware law without regard to its conflict of laws principles.
(e) Severability . If any provision of the Plan or any award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any award under any law deemed applicable by the Compensation Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Compensation Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, person or award and the remainder of the Plan and any such Award shall remain in full force and effect.
(f) Other Laws . The Committee may refuse to issue or transfer any Units or other consideration under an Award if, in its sole discretion, it determines that the issuance or transfer or such Units or such other consideration might violate any applicable law or regulation, the rules of the principal securities exchange on which the Units are then traded, or entitle the Partnership or an Affiliate to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder or beneficiary.
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(g) No Trust or Fund Created . Neither the Plan nor any award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any participating Affiliate and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any participating Affiliate pursuant to an award, such right shall be no greater than the right of any general unsecured creditor of the Company or any participating Affiliate.
(h) No Fractional Units . No fractional Units shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Units or whether such fractional Units or any rights thereto shall be canceled, terminated, or otherwise eliminated.
(i) Headings . Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.
(j) Facility Payment . Any amounts payable hereunder to any person under legal disability or who, in the judgment of the Committee, is unable to properly manage his financial affairs, may be paid to the legal representative of such person, or may be applied for the benefit of such person in any manner which the Committee may select, and the Company shall be relieved of any further liability for payment of such amounts.
(k) Gender and Number . Words in the masculine gender shall include the feminine gender, the plural shall include the singular and the singular shall include the plural.
SECTION 9. Term of the Plan .
The Plan shall be effective on the date of its approval by the Board and shall continue until the date terminated by the Board or Units are no longer available for the payment of Awards under the Plan, whichever occurs first. However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award granted prior to such termination, and the authority of the Board or the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award, shall extend beyond such termination date.
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Exhibit 10(b)
MAGELLAN PENSION PLAN
(ADOPTED EFFECTIVE JANUARY 1, 2004)
MAGELLAN PENSION PLAN
(Adopted Effective January 1, 2004)
TABLE OF CONTENTS
Page
|
||||
ARTICLE I. Purpose; Effective Date |
1 | |||
1.1 |
Purpose | 1 | ||
1.2 |
Effective Date | 1 | ||
ARTICLE II. Definitions |
2 | |||
2.1 |
Accrued Benefit | 2 | ||
2.2 |
Actuarial Equivalent | 2 | ||
2.3 |
Actuary | 3 | ||
2.4 |
Affiliate | 3 | ||
2.5 |
Alternate Payee | 3 | ||
2.6 |
Annuity Starting Date | 3 | ||
2.7 |
Appendix | 3 | ||
2.8 |
Applicable Election Period | 3 | ||
2.9 |
Authorized Leave of Absence | 4 | ||
2.10 |
Average Monthly Compensation | 4 | ||
2.11 |
Beneficiary | 4 | ||
2.12 |
Benefit Service | 4 | ||
2.13 |
Board of Managers | 4 | ||
2.14 |
Code | 4 | ||
2.15 |
Code Section 415 Compensation | 4 | ||
2.16 |
Committee | 4 | ||
2.17 |
Company | 4 | ||
2.18 |
Compensation | 4 | ||
2.19 |
Computation Period | 5 | ||
2.20 |
Covered Compensation | 6 | ||
2.21 |
Death Benefit | 6 | ||
2.22 |
Deferred Vested Pension | 6 | ||
2.23 |
Disability | 6 | ||
2.24 |
Disability Pension | 6 | ||
2.25 |
Early Pension | 6 | ||
2.26 |
Effective Date | 6 | ||
2.27 |
Eligibility Service | 6 | ||
2.28 |
Eligible Employee | 7 | ||
2.29 |
Employee | 8 | ||
2.30 |
Employer | 8 | ||
2.31 |
Employer Contributions | 8 | ||
2.32 |
Employment Date | 8 | ||
2.33 |
ERISA | 8 |
i
2.34 |
Hour of Service | 8 | ||
2.35 |
Key Employee | 10 | ||
2.36 |
Leased Employee | 10 | ||
2.37 |
Lump Sum | 10 | ||
2.38 |
Normal Pension | 10 | ||
2.39 |
Normal Retirement Age | 10 | ||
2.40 |
Normal Retirement Date | 10 | ||
2.41 |
One Year Break-In-Service | 11 | ||
2.42 |
Participant | 11 | ||
2.43 |
Pension | 11 | ||
2.44 |
Plan | 11 | ||
2.45 |
Plan Year | 11 | ||
2.46 |
Prior Service | 11 | ||
2.47 |
Prior Williams Plan | 11 | ||
2.48 |
Prior Williams Plan Benefit | 11 | ||
2.49 |
Procedure | 11 | ||
2.50 |
Qualified Joint and Survivor Pension | 11 | ||
2.51 |
Qualified Domestic Relations Order | 11 | ||
2.52 |
Retirement | 11 | ||
2.53 |
Separation Benefit | 11 | ||
2.54 |
Single Life Annuity | 12 | ||
2.55 |
Social Security Retirement Age | 12 | ||
2.56 |
Spouse | 12 | ||
2.57 |
Spouses Consent | 12 | ||
2.58 |
Surviving Spouse | 12 | ||
2.59 |
Survivor Pension | 12 | ||
2.60 |
Termination of Employment | 13 | ||
2.61 |
Trust | 13 | ||
2.62 |
Trust Agreement | 13 | ||
2.63 |
Trustee | 13 | ||
2.64 |
Trust Fund | 13 | ||
2.65 |
Vesting Service | 14 | ||
2.66 |
Vested Participant | 14 | ||
2.67 |
Year of Service | 14 | ||
ARTICLE III. Participation |
15 | |||
3.1 |
Participation | 15 | ||
3.2 |
Reemployment | 15 | ||
3.3 |
Veterans Rights | 15 | ||
ARTICLE IV. Contributions |
16 | |||
4.1 |
Participant Contributions | 16 | ||
4.2 |
Employer Contributions | 16 | ||
4.3 |
Rollover Contributions | 16 |
ii
ARTICLE V. Retirement Benefits |
17 | |||
5.1 |
Normal and Late Retirement | 17 | ||
5.2 |
Early Retirement | 17 | ||
5.3 |
Disability Retirement | 17 | ||
5.4 |
Deferred Vested Retirement | 18 | ||
5.5 |
Transferred Employee Retirement | 18 | ||
5.6 |
Annuity Starting Date | 18 | ||
5.7 |
Distribution Requirements | 19 | ||
5.8 |
Required Information | 20 | ||
5.9 |
Direct Rollovers | 20 | ||
ARTICLE VI. Amount of Pension |
22 | |||
6.1 |
Normal and Late Pension | 22 | ||
6.2 |
Early Pension | 22 | ||
6.3 |
Disability Pension | 22 | ||
6.4 |
Deferred Vested Pension | 23 | ||
6.5 |
Maximum Pensions | 24 | ||
6.6 |
Transferred Employee Retirement Benefits | 25 | ||
ARTICLE VII. Separation and Death Benefits |
26 | |||
7.1 |
Separation Benefit | 26 | ||
7.2 |
Death Benefits | 26 | ||
7.3 |
Designation of Beneficiary | 26 | ||
7.4 |
Loss of Eligibility to Receive Death Benefit | 27 | ||
7.5 |
Waiver of Survivor Pension Coverage for Spouse | 27 | ||
ARTICLE VIII. Normal and Optional Forms of Payment |
28 | |||
8.1 |
Normal Form of Pension | 28 | ||
8.2 |
Optional Forms of Pension | 28 | ||
8.3 |
Other Benefits Cancelled by Option | 30 | ||
8.4 |
Special Restrictions on Payment | 31 | ||
8.5 |
Domestic Relations Orders | 31 | ||
8.6 |
Unclaimed Benefits | 31 | ||
8.7 |
Facility of Payment | 31 | ||
8.8 |
Loss of Eligibility to Receive Continuation Benefits | 32 | ||
ARTICLE IX. Employment Transfers |
33 | |||
9.1 |
Transfers Between Employers | 33 | ||
9.2 |
Transfers to Non-Employer Affiliates | 33 | ||
ARTICLE X. Administration |
34 | |||
10.1 |
Fiduciaries | 34 | ||
10.2 |
Allocation of Responsibilities Among Named Fiduciaries | 34 | ||
10.3 |
Provisions Concerning the Benefits Committee | 35 | ||
10.4 |
Provisions Concerning the Committee | 35 | ||
10.5 |
Provisions Concerning the Plan Investments | 36 |
iii
10.6 |
Delegation of Responsibilities; Bonding | 36 | ||
10.7 |
No Joint Fiduciary Responsibilities | 37 | ||
10.8 |
Information to be Supplied by Employer | 37 | ||
10.9 |
Records | 37 | ||
10.10 |
Fiduciary Capacity | 37 | ||
ARTICLE XI. Trustee |
38 | |||
11.1 |
Appointment of Trustee | 38 | ||
11.2 |
Responsibility of Trustee and Investment Manager(s) | 38 | ||
11.3 |
Funding and Investment Policy | 38 | ||
11.4 |
Bonding | 38 | ||
11.5 |
Standard of Conduct of Trustee | 38 | ||
11.6 |
Payment of Expenses | 38 | ||
ARTICLE XII. Limitations |
39 | |||
12.1 |
Reemployment of Retired Employees | 39 | ||
12.2 |
Governmental Restrictions | 39 | ||
ARTICLE XIII. Amendments |
41 | |||
13.1 |
Right to Amend | 41 | ||
13.2 |
Plan Merger or Consolidation | 41 | ||
ARTICLE XIV. Adoption and Withdrawal |
42 | |||
14.1 |
Procedure for Adoption | 42 | ||
14.2 |
Withdrawal | 42 | ||
14.3 |
Adoption By Affiliate Contingent Upon Qualification | 42 | ||
ARTICLE XV. Termination |
43 | |||
15.1 |
Right to Terminate | 43 | ||
15.2 |
Employer Consolidation or Merger | 43 | ||
15.3 |
Allocation and Liquidation of Trust Fund | 43 | ||
15.4 |
Manner of Distribution | 44 | ||
15.5 |
Amounts Returnable to an Employer | 44 | ||
ARTICLE XVI. Top-Heavy Provisions |
45 | |||
16.1 |
Definitions | 45 | ||
16.2 |
Application of Top-Heavy Provisions | 46 | ||
16.3 |
Top-Heavy Determination | 47 | ||
16.4 |
Vesting Requirements | 47 | ||
16.5 |
Minimum Benefit. | 48 | ||
16.6 |
Adjustment in Maximum Limitation on Annual Benefits | 48 | ||
ARTICLE XVII. Miscellaneous |
49 | |||
17.1 |
Nonguarantee of Employment | 49 | ||
17.2 |
Rights to Trust Assets | 49 | ||
17.3 |
Nonalienation of Benefits | 49 |
iv
ARTICLE XVIII. Procedure for Identification and Processing |
50 | |||
18.1 |
Definitions | 50 | ||
18.2 |
Status of Order | 50 | ||
18.3 |
Procedural Requirements. | 51 | ||
18.4 |
Segregation of Assets and Payments | 51 | ||
18.5 |
Modification of Procedure | 52 | ||
ARTICLE XIX. Claims Procedure |
53 | |||
19.1 |
Claims Procedure | 53 |
v
MAGELLAN PENSION PLAN
ARTICLE I.
Purpose; Effective Date
1.1 Purpose . The purpose of this Plan is to provide retirement and incidental benefits for all Eligible Employees who complete a period of service and otherwise become eligible hereunder. The benefits provided by this Plan will be paid from a Trust Fund established by the Company and will be in addition to the benefits Employees are entitled to receive under the federal Social Security Act.
1.2 Effective Date . The terms and provisions of this Plan shall be effective on and after January 1, 2004, and shall apply only to Eligible Employees who are credited with an Hour of Service for services rendered on or after such date, unless this Plan expressly provides for an earlier effective date. An Employee who participated in the Prior Williams Plan on or before December 31, 2003, and became an Employee of the Company or any Employer on January 1, 2004, shall be a Participant in this Plan on January 1, 2004.
Benefits payable under this Plan are payable to all Participants in accordance with the terms of this Plan, unless a Participant is a member of a class of Eligible Employees for which a different schedule of benefits has been provided, as described in an Appendix to this Plan.
1
ARTICLE II.
Definitions
The following terms, whenever used in the following capitalized forms, shall have the meanings set forth below:
2.1 Accrued Benefit means, with respect to a Participant, subject to the limitations of Section 6.5 and Article XVI and to the proviso below, a monthly amount payable commencing as of the first day of the month coincident with or next following his Normal Retirement Date or as of his later Annuity Starting Date, which amount when expressed as a Single Life Annuity, is equal to the amount determined below where:
such amount is equal to (a) plus (b) minus (c) multiplied by (d), where:
(a) is equal to one and one-tenth percent (1.1%) of the Participants Average Monthly Compensation multiplied by his Benefit Service;
(b) is equal to forty-five one-hundredths percent (0.45%) of the amount, if any, by which such Participants Average Monthly Compensation exceeds his Covered Compensation multiplied by the lesser of (i) his total Benefit Service, or (ii) thirty-five (35),
(c) is the Prior Williams Plan Benefit, and
(d) is the fraction the numerator of which is the Participants years of Benefit Service calculated from the Participants date of hire with the Company from and after January 1, 2004 and the denominator of which is the number of years of Benefit Service calculated from the Participants date of hire with the Company from and after January 1, 2004 which will be earned by the Participant on the assumption that he continues in employment with the Company to his Normal Retirement Date, but in no event will such fraction be greater than one (1),
with his Average Monthly Compensation, Benefit Service and Covered Compensation determined as of his Termination of Employment (or, if no Termination of Employment is involved, as of the date of determination) in the determination of such amount and the component parts thereof.
2.2 Actuarial Equivalent means,
(a) for purposes of computing optional forms of benefits the actuarial adjustment factors described in Section 8.2 hereof; and
(b) with respect to the present value of the Pension based upon his Accrued Benefit of a Participant paid in a Lump Sum calculated applying the Applicable Interest Rate and the Applicable Mortality Table.
2
(c) For purposes of this Subsection 2.2(c), the following terms, whenever used in the capitalized form, shall have the meanings set forth below:
(1) Applicable Interest Rate means the annual interest rate on 30 years Treasury Securities as specified by the Commissioner of Internal Revenue for the first calendar month preceding the first day of the Plan Year during which the Annuity Starting Date occurs. If the time specified herein for determining the Applicable Interest Rate is changed, including an indirect change as a result of a change in the Plan Year, the interest rate used with respect to distributions made within one year of either the adoption date or the effective date of the amendment will be determined under Temporary Regulations §1.417(e)-1T(d)(10)(ii) to insure the amendment does not violate Code Section 411(d)(6).
(2) Applicable Mortality Table means the applicable mortality table prescribed by the Commissioner of Internal Revenue in revenue rulings, notices and other guidance published in the Internal Revenue Bulletin, as in effect on the date as of which present value is being determined. For 2004, the Applicable Mortality Table is the 1994 GAM.
2.3 Actuary means the individual actuary or firm of actuaries selected by the Company to provide actuarial services in connection with the administration of this Plan.
2.4 Affiliate means (1) a corporation, trade or business, if it and an Employer are members of a controlled group of corporations as defined in Code Section 414 (b) or under common control as defined under Code Section 414(c); (2) an organization, if it and an Employer are members of an affiliated service group, as defined in Code Section 414(m); and (3) solely for the purposes set forth in Code Section 414(o), any other entity, if it and an Employer are required to be aggregated pursuant to regulations under Code Section 414(o). Solely for the purposes of applying the limitations set forth in this Plan on maximum benefits, the standard of control under Code Sections 414(b) and 414(c) shall be deemed to be more than 50% rather than at least 80%.
2.5 Alternate Payee means an alternate payee described in the Procedure.
2.6 Annuity Starting Date means the first day for which an amount which is required to be paid under this Plan as an annuity or otherwise is actually paid, whether by reason of Retirement, death or Disability, as determined in accordance with Section 5.6 hereof.
2.7 Appendix means one of the appendices attached hereto and made a part of this Plan.
2.8 Applicable Election Period means:
(a) In the case of an election to waive a Qualified Joint and Survivor Pension or to revoke such waiver, the ninety-day period ending on the Annuity Starting Date; and
(b) In the case of any Spouses Consent required under Section 8.5 before the distribution of the Accrued Benefit of a Participant can begin, the ninety-day period ending on the Annuity Starting Date.
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2.9 Authorized Leave of Absence means any absence authorized by the Employer under the Employers personnel practices granted in a uniform and nondiscriminatory manner.
2.10 Average Monthly Compensation means the sum of a persons Compensation earned during his highest paid, five (5) Plan Years of employment (excluding his first and last partial years of employment) within the ten (10) Plan Years prior to his Normal Retirement Date, or if earlier, prior to his Termination of Employment (or if appropriate, the date of determination), divided by sixty (60). If a person has less than five (5) Plan Years of employment, Average Monthly Compensation shall mean the sum of the persons Compensation earned for all full Plan Years (excluding his first and last partial years) of employment, divided by the number of months during this period for which he received such Compensation.
2.11 Beneficiary means any person or entity designated under Section 7.3 to receive a Death Benefit.
2.12 Benefit Service means the sum of the full and fractional Years of Service credited to a Participant after the Effective Date under the provisions of this Plan, plus, for an Eligible Employee who was a Participant in the Prior Williams Plan before the Effective Date, his Benefit Service (or comparable service) determined under the Prior Williams Plan as of December 31, 2003; provided, however, that Benefit Service (or comparable service) attributable to a period of Eligibility Service will be included unless disregarded under Section 2.27.
2.13 Board of Managers means the Board of Managers of the Company.
2.14 Code means the Internal Revenue Code of 1986, as amended, and any subsequent Internal Revenue Code. If there is a subsequent Internal Revenue Code, any references herein to Internal Revenue Code sections shall be deemed to refer to comparable sections of any subsequent Internal Revenue Code.
2.15 Code Section 415 Compensation means a Participants taxable income as reported or reportable on Form W-2 for federal income tax purposes, increased by salary reduction amounts contributed to the Magellan 401(k) Plan or similar plan designated by the Committee and salary reduction amounts contributed to any cafeteria plan or flexible benefits plan established by the Company in accordance with Code Section 125 and related sections of the Code.
2.16 Committee means the Benefits Committee described in Section 10.3 and shall sometimes be referred to herein as the Committee or the Benefits Committee.
2.17 Company means Magellan Midstream Holdings, L.P., a partnership formed under the laws of the State of Delaware.
2.18 Compensation means with respect to a Participant who has an Hour of Service on or after such date, the first two hundred thousand dollars ($200,000) (or such other amount as may be permitted under Code Section 401(a)(17)) of the total wages or salary paid to a Participant each Plan Year by an Employer or an Affiliate, or Earned Income as defined herein, if the Participant is a Self-Employed Individual including base pay, short term disability (STD) paid by an Employer, bonuses (unless specifically excluded under a written bonus arrangement), if any, when paid, salary reduction amounts contributed to the Magellan 401(k) Plan or a similar
4
plan designated by the Committee, salary reduction amounts contributed to any qualified transportation plan established by the Company in accordance with Code Section 132(f) or to any cafeteria plan or flexible benefits plan established by the Company in accordance with Code Section 125 and related sections of the Code, but excluding severance pay, cost of living pay, housing pay, relocation pay (including mortgage interest differential) and all such other taxable and non-taxable fringe benefits and extraordinary compensation, all as determined by the Committee in its sole and absolute discretion. For purposes of determining Average Monthly Compensation, the Compensation taken into account with respect to any Plan Year shall not exceed the limitation determined pursuant to the terms of this Section 2.18 as applicable for such Plan Year. For purposes of determining an Accrued Benefit, if an Employee is credited with less than two thousand eighty (2,080) Hours of Service for determining Benefit Service during a Plan Year, his Compensation for that Plan Year shall be the product of his actual Compensation for such Plan Year as described above multiplied by a fraction the numerator of which is two thousand eighty (2,080) and the denominator of which is the number of Hours of Service with which he is credited for such Plan Year. For purposes of calculating a Participants Compensation and a Participants Average Monthly Compensation under the Plan, compensation which was recognized as compensation for purposes of calculating benefits pursuant to the terms of the Prior Williams Plan will be considered for purposes of determining both Compensation and Average Monthly Compensation pursuant to the terms of this Plan, but only for purposes of calculating the Prior Williams Plan Benefit, and who was an active participant in the Prior Williams Plan on December 31, 2003, and such participant became an Employee of the Company or any Affiliate on January 1, 2004. With respect to any other Employee who is hired by the Company or an Affiliate after January 1, 2004, and such individual had previously been employed by Williams Companies, Inc. or any of its Affiliates and was a participant in the Prior Williams Plan, then, for calculating such Participants compensation and Average Monthly Compensation under the Plan, such calculation shall be based only on Compensation paid to such Participant while employed by the Company or any Affiliate. As used herein, Earned Income means the net earnings from self-employment in a trade or business with respect to which the Plan is established by the Employer for which personal services of the individual are a material income-producing factor regardless of the manner in which such earnings are reported. Net earnings will be determined without regard to items not included in gross income and the deductions allocable to such items. Net earnings are reduced by contributions by the Employer to a qualified plan to the extent deductible under Section 404 of the Code. Net earnings shall be determined with regard to the deduction allowed to the Employer by Section 164(f) of the Code for taxable years beginning after December 31, 1989.
2.19 Computation Period means, with respect to each type of service to be measured, the following periods of time:
(a) With respect to Eligibility Service, the twelve-consecutive month period following the first Employment Date of an Employee (or, if such Eligibility Service can be disregarded under the break-in-service provisions of this Plan or the Prior Williams Plan, his first Employment Date thereafter) and anniversaries thereof;
(b) With respect to Vesting Service, a Plan Year; and
(c) With respect to Benefit Service, a Plan Year.
5
2.20 Covered Compensation means, for any Plan Year (except as provided in Section 5.3 concerning determination of a Disability Pension) and with respect to each Participant, the average (without indexing) of the social security taxable wage bases in effect for each calendar year during the thirty-five-calendar-year-period ending with the calendar year such Participant attains (or will attain) his Social Security Retirement Age. Such thirty-five-calendar-year-period shall be used for each Participant regardless of the year of birth of such Participant. In determining any Participants Covered Compensation for any Plan Year, the social security taxable wage base for such Plan Year (and each subsequent Plan Year) shall be assumed to be the same as the social security taxable wage base in effect as of the first day of such Plan Year. A Participants Covered Compensation for any Plan Year after such thirty-five-calendar-year-period is such Participants Covered Compensation for the Plan Year in which such Participant attained his Social Security Retirement Age. A Participants Covered Compensation for any Plan Year prior to such thirty-five-calendar-year-period is the social security taxable wage base in effect as of the first day of such Plan Year. Each Participants Covered Compensation shall be automatically adjusted for each Plan Year, to the extent his Covered Compensation is then subject to adjustment under this Section 2.20.
2.21 Death Benefit means the benefit provided under Article VII of this Plan to the Surviving Spouse or other Beneficiary of a Participant.
2.22 Deferred Vested Pension means the type of Pension described in Section 5.4.
2.23 Disability means a physical or mental condition which (a) satisfies the initial requirements for disability payments under the Employer maintained long-term disability plan.
2.24 Disability Pension means the type of Pension described in Section 5.3.
2.25 Early Pension means the type of Pension described in Section 5.2.
2.26 Effective Date means January 1, 2004, the general effective date of this Plan.
2.27 Eligibility Service means all of the full and partial Years of Service of an Employee with an Employer or Affiliate and any other service with the Company or an Affiliate as a Leased Employee, if such service would have constituted a Year of Service under the applicable provisions of this Plan, if the Leased Employee had been a common law employee of the Company. Eligibility Service shall not include:
(a) Years of Service before January 1, 2004, if under the break-in-service provisions of this Plan or the Prior Williams Plan in effect on December 31, 2003, such service was not taken into account in determining such Employees Eligibility Service; and
(b) Years of Service credited before a One Year Break-in-Service, if an Employee has no vested interest in his Accrued Benefit derived from Employer Contributions at such time and the number of consecutive One Year Breaks-in-Service equals or exceeds the greater of (i) five (5) or (ii) the Years of Service earned by the Employee before the first One Year Break-in-Service.
6
Years of Service that are not taken into account by reason of the exclusions set forth above shall not be taken into account in applying the provisions of this Section 2.27 to a subsequent One Year Break-in-Service.
2.28 Eligible Employee means any Employee of an Employer, but does not include:
(a) A Leased Employee;
(b) an Employee who is a member of a group of Employees represented by a collective bargaining representative, unless a currently effective collective bargaining agreement between his Employer and the collective bargaining representative of the group of Employees of which he is a member expressly provides for coverage by this Plan;
(c) an Employee who, after the Effective Date, is then accruing a benefit under the terms of any employee pension benefit plan maintained outside of this Plan at such time, sponsored by an Employer and intended to meet the requirements of Code Section 401(a);
(d) an Employee who is not a resident of the United States and not a citizen of the United States;
(e) a nonresident alien;
(f) a seasonal employee, a temporary employee, a term employee, or an employee not employed on a regularly scheduled basis;
(g) a person who has a written employment contract or other contract for services, unless such contract expressly provides that such person is an employee;
(h) a person who is paid through the payroll of a temporary agency or similar organization regardless of any subsequent reclassification as a common law employee;
(i) a person who is designated, compensated or otherwise treated as an independent contractor by an Employer regardless of any subsequent reclassification as a common law employee;
(j) a person who is designated, compensated or otherwise treated as a cooperative education employee;
(k) a person excluded by the document of adoption of an Employer;
(l) an individual who is not contemporaneously classified as an Employee for purposes of the Employers payroll system. In the event any such individual is reclassified as an Employee for any purpose, including, without limitation, as a common law or statutory employee, by any action of any third party, including, without limitation, any government agency, or as a result of any private lawsuit, action or administrative proceeding, such individual will, notwithstanding such reclassification, remain ineligible for participation hereunder and will not be considered an Eligible Employee. In addition to and not in derogation of the foregoing, the exclusive means for an individual who is not contemporaneously classified as an Employee of the Employer on the Employers payroll system to become eligible to participate in this Plan is through an amendment to this Plan which specifically renders such individual eligible for participation hereunder; or
7
(m) any individual retained by an Employer directly or through an agency or other party to perform services for an Employer (for either a definite or indefinite duration) in the capacity of a fee-for-service worker or independent contractor or any similar capacity including, without limitation, any such individual employed by temporary help firms, technical help firms, staffing firms, employee leasing firms, professional employer organizations or other staffing firms, whether or not deemed to be a common law employee.
Notwithstanding the foregoing an Eligible Employee also includes a partner who is an executive officer (a Self Employed Individual) of the Employer who has Earned Income for the taxable year from the trade of business for which the Plan is adopted and established; and, such definition shall also include an individual who would have had Earned Income but for the fact that the trade or business had not net profits for the taxable year.
2.29 Employee means any common law employee of an Employer or Affiliate, and any person granted such status in accordance with an Employers uniform and nondiscriminatory policies regarding an Authorized Leave of Absence. Employee also includes a Self-Employed Individual. Further as used herein, Employment includes service of a Self-Employed Individual with the Employer.
2.30 Employer means the Company and any Affiliate which, pursuant to the provisions of Article XIV, has adopted this Plan.
2.31 Employer Contributions mean the contributions by Employers to the Trust for this Plan.
2.32 Employment Date means the day an Employee first earns an Hour of Service, or in the case of an Employee whose Eligibility Service and Vesting Service can be disregarded under the break-in-service provisions of this Plan or a Prior Williams Plan, the first day following his last One Year Break-in-Service in which the Employee earns an Hour of Service.
2.33 ERISA means the Employee Retirement Income Security Act of 1974, as from time to time amended.
2.34 Hour of Service means a unit of service used by the Plan to determine an Employees Years of Service credited as follows:
(a) each hour for which the Employee is paid, or entitled to payment, directly or indirectly, for the performance of duties from an Employer or an Affiliate; provided, however, if records of such actual hours are not maintained for an Employee, such Employee shall be credited with 190 Hours of Service for each month in which the Employee is paid, or entitled to payment, with respect to one Hour of Service. The term shall include service of a Self-Employed individual with the Employer
(b) each hour for which backpay, irrespective of mitigation of damages, is awarded to the Employee or agreed to by the Employer or an Affiliate;
8
(c) each hour an Employee is paid or entitled to payment by an Employer or an Affiliate on account of a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), lay-off, jury duty, military duty or leave of absence. An Hour of Service for which an Employee is directly or indirectly paid or entitled to payment on account of a period during which the Employee performed no duties shall not be credited to the Employee, if such payment is made or due under a plan maintained solely for the purpose of complying with any applicable workers compensation, disability insurance, or unemployment compensation law. Hours of Service also shall not be credited for a payment which solely reimburses the Employee for medical or medically related expenses incurred by the Employee. Not more than five hundred one (501) Hours of Service shall be credited under this subsection (c) to the Employee on account of any single continuous period during which the Employee performs no duties (whether or not such period occurs in a single Computation Period). For purposes of this subsection (c), a payment shall be deemed to be made by or due from an Employer regardless of whether such payment is made by or due from an Employer directly, or indirectly through, among others, a trust fund, insurer or other entity to which an Employer contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer or other entity are for the benefit of particular employees or are on behalf of a group of employees in the aggregate;
(d) Solely for purposes of determining whether an Employee has incurred a One Year Break-in-Service, an Employee who is not otherwise credited with an Hour of Service under subsection (a), (b) or (c), above, shall be credited with an Hour of Service for each additional hour which is part of an Employees customary work week with an Employer or Affiliate during which the Employee is on an unpaid Authorized Leave of Absence, provided the Employee resumes employment with an Employer or Affiliate upon the expiration of such Authorized Leave of Absence. For purposes of this subsection (d), an Employees customary work week will consist of five (5), eight-hour days;
(e) Solely for purposes of determining whether a One Year Break-in-Service has occurred for purposes of determining Eligibility Service, Vesting Service and Years of Participation (but not for purposes of Benefit Service), an Employee who is absent from work beginning on or after January 1, 1985 for maternity or paternity reasons and who is not otherwise credited with an Hour of Service under subsections (a), (b), (c) or (d) above, shall receive credit for the Hours of Service for which he would have been regularly scheduled had the Employee performed duties during such absence for an Employer or Affiliate, or in the absence of a regularly scheduled number of hours, forty (40) hours per week (or eight (8) hours per day). For purposes of such determination, an absence from work for maternity or paternity reasons means an absence (i) by reason of the pregnancy of the Employee, (ii) by reason of the birth of a child of such Employee, (iii) by reason of the placement of a child with the Employee in connection with the adoption of such child by the Employee, or (iv) for purposes of caring for such child for a period beginning immediately following such birth or placement. Hours of Service credited for purposes of such determination shall be credited in the Computation Period in which such absence begins, if necessary to prevent a One Year Break-in-Service in such period, or, in all other cases, in the next following Computation Period. In no event will more than five hundred one (501) Hours of Service be credited for any single continuous period of time during which the person did not or would not have performed duties. The Committee may, in its discretion, require an Employee who is absent from work for maternity or paternity reasons to furnish information to the Committee to establish that the Employees absence from work is for
9
maternity or paternity reasons and the number of days of such absence. The Company reserves the right to terminate the employment of any Employee who is absent from work without authorization, without regard to whether such Employee is entitled to be credited for Hours of Service pursuant to this subsection (e);
(f) The same Hours of Service shall not be credited more than once under the foregoing subsections. The determination of Hours of Service for reasons other than the performance of duties shall be made in accordance with the provisions of Labor Department Regulations, C.F.R. §2530.200b-2(b) (1976); and Hours of Service shall be credited to Computation Periods in accordance with the provisions of Labor Department Regulations, C.F.R. § 2530.200b-2(c) (1976).
2.35 Key Employee means each Employee and former Employee described in Section 16.1(d).
2.36 Leased Employee means an individual who is not in the employ of an Employer or an Affiliate and who, pursuant to an agreement between an Employer or an Affiliate and any other person (leasing organization), provides services to such Employer or Affiliate and has provided services to an Employer or an Affiliate on a substantially full-time basis for a period of at least one year, with such services being (i) prior to January 1, 1997, of the type historically performed by employees in the business field of such Employer or Affiliate, or (ii) after December 31, 1996, performed under the primary direction or control of such Employer or Affiliate. Provided, however, if such individuals constitute less than twenty percent of the non-highly compensated workforce (within the meaning of Code Section 414(n)(5)(C)(ii)) of such Employer or Affiliate and the Affiliates of each of them, such an individual shall not be included in such meaning if such leasing organization covers such an individual in a money purchase pension plan which provides immediate participation, full and immediate vesting and a non-integrated contribution formula equal to at least ten percent of such individuals annual compensation (as defined in Code Section 415(c)(3)); and provided further, if such individual shall be deemed to be, or treated as, an Employee of an Employer or an Affiliate, any contributions or benefits provided by such leasing organization which are attributable to services of such individual performed for an Employer or an Affiliate shall be treated as provided by such Employer or Affiliate.
2.37 Lump Sum means the optional form of payment described in Subsection 8.2(e), Section 8.4, and the small lump sum described in Subsection 12.2(a).
2.38 Normal Pension means the type of Pension described in Section 6.1.
2.39 Normal Retirement Age means the Participants attainment of age sixty-five (65).
2.40 Normal Retirement Date means the first day of the month coinciding with or next following the Participants Normal Retirement Age. The Accrued Benefit of a Participant who is an Employee of the Employer on his Normal Retirement Age shall become nonforfeitable on and after such date.
10
2.41 One Year Break-In-Service means a Computation Period within which an Employee is credited with not more than five hundred (500) Hours of Service.
2.42 Participant means each person who is participating in this Plan pursuant to the provisions of Article III.
2.43 Pension means a series of monthly amounts which are payable to a person who is entitled to receive benefits pursuant to this Plan.
2.44 Plan means the Magellan Pension Plan, as hereafter from time to time amended.
2.45 Plan Year means the twelve (12) consecutive month period beginning on January 1 and ending December 31.
2.46 Prior Service means the number of Years of Service recognized as Years of Vesting Service under the Prior Williams Plan as of December 31, 2003.
2.47 Prior Williams Plan means The Williams Pension Plan as it existed on December 31, 2003.
2.48 Prior Williams Plan Benefit means a participants vested accrued benefit under the Prior Williams Plan determined as of December 31, 2003 as set forth in Appendix 1 attached hereto.
2.49 Procedure means the Procedure for Identification and Processing of Qualified Domestic Relations Orders, which is described in Article XVIII.
2.50 Qualified Joint and Survivor Pension means a monthly payment for the life of the Participant and, if the Participant is married on the date the payment of such Pension begins, a monthly payment to such Spouse after his death for life in an amount equal to one hundred percent (100%) in the case of a Pension based upon his Accrued Benefit and fifty percent (50%) in the case of a Pension based upon his Accrued Benefit, of the monthly Pension payable during the joint lives of the Participant and his Spouse. A Qualified Joint and Survivor Pension shall be the actuarial equivalent of the Accrued Benefit of a Participant. The monthly amount of such payments shall be determined under Option 1, Option 2, or Option 3, as applicable, of Section 8.2.
2.51 Qualified Domestic Relations Order means the type of court order or decree described in the Procedure.
2.52 Retirement means Termination of Employment after an Employee has fulfilled all requirements for a Pension other than any attained age requirement. Retirement shall be considered as commencing on the day immediately following an Employees last day of employment or Authorized Leave of Absence, if later.
2.53 Separation Benefit means a special benefit determined in accordance with Section 7.1.
11
2.54 Single Life Annuity means the optional form of Pension described in Section 8.2(e).
2.55 Social Security Retirement Age means, with respect to each Participant, the social security retirement age of such Participant as determined under Code Section 415(b)(8) and the regulations thereunder.
2.56 Spouse means the person to whom a Participant is married and/or any former spouse to the extent provided in a Qualified Domestic Relations Order and allowed under Code Section 414(p).
2.57 Spouses Consent means the written, irrevocable consent of the Spouse of a Participant to a specific election of a form of distribution other than a Qualified Joint and Survivor Pension or Survivor Pension coverage for such Spouse and, if applicable, the specific designation of any Beneficiary or contingent pensioner other than such Spouse, which consent acknowledges the effect thereof on the rights of such Spouse concerning the Participants Accrued Benefit, with such consent being acknowledged before a Plan representative or notary public. Such election of a form and, if applicable, a Beneficiary or contingent annuitant cannot be changed by the Participant to a form other than a Qualified Joint and Survivor Pension with such Spouse as the contingent pensioner without being accompanied by a new Spouses Consent of such Spouse, unless the preceding Spousal Consent (i) expressly permits the Participant to change an elected form of distribution and designation of contingent pensioner or Beneficiary without a new Spouses Consent of such Spouse, and such preceding Spouses Consent acknowledges that the Spouse has the right to limit consent to the specifically elected form of distribution and, if applicable, the specific contingent annuitant or Beneficiary; provided, however, if the designated Beneficiary is a trust, a Spouses Consent shall be required, and applicable to, the Participants designation of such trust and shall not be required, nor applicable to, the designation of trust beneficiaries or any changes in trust beneficiaries. A Spouses Consent is binding only with respect to the consenting Spouse. A Spouses Consent shall not be required if it is established to the satisfaction of the Committee that the Participant is not married, the Participants Spouse cannot be located or on account of other circumstances as the Secretary of the Treasury may prescribe by regulation. No Spouses Consent shall be valid or effective unless and until filed with the Committee.
2.58 Surviving Spouse means the person to whom a Participant is married on the date of his death and/or any former spouse to the extent provided in a Qualified Domestic Relations Order and allowed under Code Section 414(p); provided, however, a Spouse shall not be a Surviving Spouse for purposes of eligibility for the survivor portion of any Pension paid to a Participant hereunder, unless such Spouse was married to the Participant on his Annuity Starting Date.
2.59 Survivor Pension means a monthly amount payable for life to the Surviving Spouse or Beneficiary of a Vested Participant who died prior to the Annuity Starting Date of his benefits under this Plan. Unless otherwise provided in this Plan, the amount of such monthly payments shall be equal to the amount payable to the Surviving Spouse or Beneficiary as a Single Life Annuity as if such Surviving Spouse or Beneficiary was a Participant (or the Actuarial Equivalent thereof); provided, however, payment to a Beneficiary which is not a living person shall be made solely as a single-sum of all or a portion of the Participants Pension as designated by the Participant pursuant to Section 7.3.
12
2.60 Termination of Employment means a separation from service that occurs when:
(a) an Employee ceases to be employed by an Employer or an Affiliate, or
(b) a person fails to report for work with an Employer or an Affiliate, at the termination of an Authorized Leave of Absence.
A transfer of employment from one Employer or Affiliate to another Employer or Affiliate shall not constitute a Termination of Employment for purposes of the Plan. A person shall not be considered to have incurred a Termination of Employment due to his having entered the Armed Forces or Merchant Marine of the United States unless it is determined by the Committee that he has no reemployment rights under the law. Upon the sale of all of the stock or substantially all of the assets used in a trade or business of any subsidiary of the Company which has adopted the Plan as an Employer prior to such sale, a Termination of Employment shall occur on the date of such sale with respect to any Employee who continues in employment with the purchaser of such assets or with such subsidiary, as the case may be, provided the following conditions (as recognized in General Counsel Memorandum 39824, August 15, 1990) are met:
(1) | the Company continues to maintain the Plan after such sale; |
(2) | the subsidiary withdraws as an Employer under the Plan prior to such sale; |
(3) | the purchaser of such subsidiarys stock or assets (Purchaser) does not adopt the Plan; |
(4) | the Purchaser is not an Affiliate; and |
(5) | no assets or liabilities of the Plan are transferred to a defined benefit plan maintained by the Purchaser, the subsidiary or any affiliate of either within the meaning of Code Sections 414(b), (c) or (m). |
After incurring a Termination of Employment, a terminated person shall not be eligible for or credited with Hours of Service or Years of Service for any purpose under the Plan with respect to any period after such Termination of Employment.
2.61 Trust means the legal entity resulting from the Trust Agreement.
2.62 Trust Agreement means the agreement between the Company and the Trustee establishing the Trust, and any amendments thereto.
2.63 Trustee means the entity which is serving as Trustee under the Trust Agreement.
2.64 Trust Fund means any property, real or personal, received by the Trustee, plus all income and gains and minus losses, expenses and distributions chargeable thereto.
13
2.65 Vesting Service means the sum of:
(a) The Employees Prior Service determined as of December 31, 2003, under the provisions of the Prior Williams Plan then in effect; plus
(b) all Years of Service earned after the Effective Date; and
(c) all other service with an Employer or an Affiliate as a Leased Employee, if such service would have constituted a Year of Service under the applicable provisions of this Plan, if the Leased Employee had been a common law employee of such Employer or Affiliate;
but, excluding (1) any Years of Service before January 1, 2004, if under the break-in-service provisions of this Plan or the Prior Williams Plan in effect for such periods, such service was not taken into account, and (2) any Years of Service earned prior to a One Year Break-in-Service, if the Employee did not have a nonforfeitable interest in his Accrued Benefit derived from Employer Contributions before the One Year Break-in-Service began and if the number of consecutive One Year Breaks-in-Service equals or exceeds the greater of (i) five (5) or (ii) the Employees Vesting Service earned before the One Year Break-in-Service. Service not required to be taken into account by reason of the exclusions set forth above shall not be taken into account in applying this Section 2.65 to a subsequent One Year Break-in-Service.
2.66 Vested Participant means any Participant who has a nonforfeitable right to any portion of his Accrued Benefit.
2.67 Year of Service means:
(a) with respect to Eligibility Service, the sum of the Prior Service of the Participant plus each Computation Period during which the person earns at least one thousand (1,000) Hours of Service;
(b) with respect to Vesting Service, the sum of the Prior Service of the Participant plus each Computation Period ending after December 31, 2003, during which the person earns at least one thousand (1,000) Hours of Service;
(c) with respect to Benefit Service, the sum of (i) the Benefit Service earned by a person before the Effective Date under the Prior Williams Plan and (ii) each Computation Period beginning on or after January 1, 2004, during which an Eligible Employee earns at least one thousand (1,000) Hours of service with an Employer, with each Eligible Employee receiving one hundred ninety (190) Hours of service credit for each month, or portion thereof, worked during the Computation Period. If an Eligible Employee earns less than one thousand (1,000) Hours of Service during any such Computation Period, a fraction of a year of Benefit Service shall be earned by the Eligible Employee, the numerator of which shall be the Eligible Employees actual Hours of Service earned with an Employer during such Computation Period and the denominator of which shall be one thousand (1,000); and
(d) with respect to Eligibility Service, Vesting Service and Benefit Service, such service as may be granted by the Committee or the Board of Managers, where appropriate, in accordance with an Employers uniform and nondiscriminatory policies regarding an Authorized Leave of Absence.
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ARTICLE III.
Participation
3.1 Participation . Each Eligible Employee who was, as of December 31, 2003, a Participant in the Prior Williams Plan shall continue after such date as a Participant in this Plan. Each other Eligible Employee shall become a Participant in this Plan on the first day of the calendar month coincident with or next following the date he is credited with one year of Eligibility Service. A Participant shall continue participating in this Plan until the earlier of his death or the distribution or forfeiture of his entire Accrued Benefit in accordance with the terms and conditions of this Plan.
3.2 Reemployment . Each Participant who incurs a Termination of Employment and is reemployed as an Eligible Employee at a time when he retains credited Eligibility Service shall resume participation in the Plan as of the date he is credited with an Hour of Service after becoming so reemployed.
3.3 Veterans Rights . Notwithstanding any provision of the Plan to the contrary, contributions, benefits and service credit under the Plan with respect to qualified military service shall be provided in accordance with Code Section 414(u).
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ARTICLE IV.
Contributions
4.1 Participant Contributions . No contributions to this Plan shall be made by Participants.
4.2 Employer Contributions . The Employers, acting under the advice of the Actuary for the Plan, shall make contributions to the Trust in such amounts and at such times as are required to comply with Code Section 412. Such contributions shall be applied to provide benefits under this Plan and to pay the expenses of this Plan. Forfeitures shall be applied to reduce future Employer Contributions.
4.3 Rollover Contributions . No rollover contributions of any nature or description, whether direct or indirect, shall be made to this Plan by any Employee or Participant or any other person.
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ARTICLE V.
Retirement Benefits
5.1 Normal and Late Retirement . A Participant shall be eligible for a Normal Pension under this Plan, if his Termination of Employment occurs on or after his Normal Retirement Date. Payment of a Normal Pension to the Participant shall begin as of the Annuity Starting Date and shall continue in accordance with the terms of the form of payment applicable to such Participant. The amount of such Normal Pension shall be determined under Section 6.1. The form of such Normal Pension shall be determined under Article VIII.
5.2 Early Retirement . A Participant shall be eligible for an Early Pension under this Plan, if his Termination of Employment is on or after his fifty-fifth (55th) birthday and before his Normal Retirement Date and he has completed five (5) or more years of Vesting Service. Payment of an Early Pension to the Participant shall begin as of his Annuity Starting Date and shall continue in accordance with the terms of the form of payment applicable to such Participant. The amount of such Early Pension shall be determined under Section 6.2. The form of such Early Pension shall be determined under Article VIII.
5.3 Disability Retirement . A Participant shall be eligible for a Disability Pension under this Plan, if his Termination of Employment is on account of Disability and occurs after he has completed five (5) or more years of Vesting Service, but prior to his Normal Retirement Date. Payment of a Disability Pension to the Participant shall begin on the Annuity Starting Date and shall continue in accordance with the terms of the form of payment applicable to such Participant. The form of such Disability Pension shall be determined under Article VIII. The amount of such Disability Pension shall be determined as follows:
(1) If a Disability continues to the Participants Normal Retirement Date, such Participant shall be entitled to a Disability Pension based on his Compensation (subject to applicable limitations), Covered Compensation and Benefit Service to the date of Disability and Benefit Service credit for the period of Disability;
(2) If a Disability ceases prior to the Participants Normal Retirement Date and the Participant is reemployed by an Employer as an Eligible Employee, upon his subsequent Termination of Employment such Participant shall be entitled to receive a Normal Pension, Early Pension or Deferred Vested Pension, as applicable, determined by his attained age on the date of such Termination of Employment. Such Normal Pension, Early Pension or Deferred Vested Pension shall be based on his Compensation (subject to applicable limitations), Covered Compensation and Benefit Service to the date of Disability, Benefit Service credit for the period of Disability, and his Benefit Service, Covered Compensation and Compensation during the period of reemployment, reduced, if applicable, in accordance with Section 6.2 or 6.4, based on the number of years by which the Annuity Starting Date of the Early Pension or Deferred Vested Pension precedes the Participants Normal Retirement Date; and
17
(3) If a Disability ceases prior to the Participants Normal Retirement Date and he is not reemployed by an Employer as an Employee (or is reemployed as an Employee but not an Eligible Employee), he shall be entitled to receive, commencing on the first day of the month coinciding with or next following the latest of (i) his fifty-fifth (55th) birthday, (ii) the cessation of such Disability, or (iii) the date of his subsequent Termination of Employment, an Early Pension or Deferred Vested Pension, as applicable, to which he would have been entitled as of the date of such cessation of such Disability. Such Early Pension or Deferred Vested Pension shall be based on his Compensation (subject to applicable limitations), Covered Compensation and Benefit Service to the date of Disability and Benefit Service to the date of cessation of such Disability (or, if applicable, date of Termination of Employment), but in neither case beyond his Normal Retirement Date, reduced, if applicable, in accordance with Sections 6.2 and 6.4, based on the number of years by which the Annuity Starting Date of the Early Pension or Deferred Vested Pension precedes the Participants Normal Retirement Date.
5.4 Deferred Vested Retirement . A Participant who is not eligible for a Pension under Sections 5.1, 5.2 or 5.3 shall be eligible for a Deferred Vested Pension, if his Termination of Employment is on or after the completion of five (5) or more years of Vesting Service. Payment of a Deferred Vested Pension to the Participant shall begin on the Annuity Starting Date and shall continue in accordance with the form of payment applicable to such Participant. The amount of such Deferred Vested Pension shall be determined under Section 6.4. The form of such Deferred Vested Pension shall be determined in accordance with Article VIII.
5.5 Transferred Employee Retirement . Requirements for Pension benefits or other benefits, if any, payable under this Plan in cases of transfers of employment by Employees between Employers or between an Employer and an Affiliate, shall be determined in accordance with the provisions of Article IX.
5.6 Annuity Starting Date . Subject to the provisions of Sections 5.7 and 5.8, Pensions and other benefits payable under this Plan shall commence and be payable in accordance with the following:
(a) In the case of a Normal Pension payable under Section 5.1, the Annuity Starting Date shall be the earlier of (i) the first day of the month next following a Participants Termination of Employment, or (ii) April 1 of the calendar year following the calendar year in which such Participant attains age seventy and one-half (70 1 / 2 );
(b) In the case of a Pension payable under Section 5.2, 5.3, 5.4, or 5.5 and a Separation Benefit payable to a Participant under Section 7.1, the Annuity Starting Date shall be the first day of the month coincident with or next following the Participants Normal Retirement Date, or if earlier, the date established by the Committee in response to the Participants written request for early payment, but in no event earlier than the first day of the month coincident with or next following the date the Participant attains age fifty-five (55) in the case of such a Pension. Early commencement of a Pension is subject to the restrictions imposed by Section 8.4;
18
(c) In the case of a Pension or Separation Benefit described in subsections (a) or (b) above, the Annuity Starting Date shall in all events be not later than sixty (60) days after the last day of the Plan Year in which occurs the latest of the following events:
(1) The Participants Normal Retirement Date;
(2) The tenth anniversary of the date on which the Participant commenced participation in the Plan; or
(3) The Participants Termination of Employment; and
(d) In the case of a Survivor Pension, the Annuity Starting Date shall be the first day of the month:
(1) next following the Participants date of death, if the Participant had then attained age sixty-five (65); or
(2) in which the Participant would have attained age sixty-five (65), if the Participant dies prior to attaining such age.
A Surviving Spouse may irrevocably elect, on a form provided for such purpose by the Committee, to accelerate the Annuity Starting Date of a Survivor Pension to the first day of the month next following the date of the Participants death or the first day of any month thereafter, but no later than the first day of the month in which the Participant would have attained age sixty-five (65); and
(e) If payment of a Survivor Pension based upon a Participants Accrued Benefit commences to the Surviving Spouse of a Participant who was either (i) an Employee, or (ii) eligible for an Early Pension before the first day of the month in which such Participant would have attained age sixty-two (62), such Survivor Pension shall be reduced in accordance with the provisions of Section 6.2(b) based upon the age the Participant would have attained as of the Annuity Starting Date; provided, however, no reduction shall be made for any period prior to the date such Participant would have attained age fifty-five (55). If payment of a Survivor Pension commences to the Surviving Spouse of a Participant who was eligible for a Deferred Vested Pension before the first day of the month in which such Participant would have attained age sixty-five (65), such Survivor Pension shall be reduced in accordance with the provisions of Section 6.4(b) based on the age such Participant would have attained as of the Annuity Starting Date.
5.7 Distribution Requirements . In addition to the requirements of Section 5.6 and subject to the provisions of Section 5.8, distributions to a Beneficiary in the event of the death of a Participant shall be made in accordance with the following:
(a) In the event distribution of a Participants Pension has commenced before the Participants death, the remaining interest thereof, if any, shall be distributed at least as rapidly as under the method of distribution being used as of the Participants date of death; and
19
(b) In the event distribution of a Participants Pension has not commenced before the Participants death, distribution of any distributable portion thereof shall be made in accordance with the following:
(1) Any portion of such Participants interest which is not payable to a Beneficiary designated by such Participant shall be distributed within five (5) years of such Participants date of death; and
(2) Any portion of such Participants interest which is payable to a Beneficiary designated by such Participant shall be distributed over the life of such Beneficiary or a period not exceeding the life expectancy of such Beneficiary, commencing not later than (i) if such Beneficiary is other than such Participants Surviving Spouse, one (1) year after the Participants date of death, or (ii) if such Beneficiary is such Participants Surviving Spouse, (A) the date on which such Participant would have attained age seventy and one-half (70 1 / 2 ), if such Participant dies before attaining such age, or (B) one (1) year after such Participants date of death, if such Participant dies after attaining age seventy and one-half (70 1 / 2 ).
5.8 Required Information . Any Participant and any Beneficiary eligible to receive benefits under the Plan shall furnish to the Committee any information or proof requested by the Committee and reasonably necessary for proper administration of the Plan. Failure by such Participant or such Beneficiary to comply with any such request within a reasonable period of time and in good faith shall be sufficient grounds for delay in payment of benefits under the Plan until sixty (60) days after such information or proof is received by the Committee.
5.9 Direct Rollovers .
(a) Distributees Election : Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributees election hereunder, a Distributee may elect, at the time and in the manner prescribed by the Committee, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover.
(b) Definitions : For purposes of this Section 5.9, the following words and phrases shall have the meanings set forth below when used in the capitalized form, unless a different meaning is clearly warranted by the context:
(1) Direct Rollover shall mean a payment by the Plan to the Eligible Retirement Plan specified by the Distributee.
(2) Distributee shall mean a person who is (i) an Employee or former Employee, (ii) the surviving spouse of an Employee or former Employee, or (iii) the spouse or former spouse of an Employee or former Employee who is the Alternate Payee under a qualified domestic relations order, as defined in Code Section 414(p).
(3) Eligible Retirement Plan shall mean an individual retirement account described in Code Section 408(a), an individual retirement annuity
20
described in Code Section 408(b), an annuity plan described in Code Section 403(a), or a qualified trust described in Code Section 401(a), that accepts the Distributees Eligible Rollover Distribution. However, in the case of an Eligible Rollover Distribution to the surviving spouse, an Eligible Retirement Plan is an individual retirement account or individual retirement annuity. An Eligible Retirement Plan shall also mean an annuity contract described in Code Section 403(b) and an eligible Plan under Code Section 457(b) which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a Qualified Domestic Relation Order, as defined in Code Section 414(p).
(4) Eligible Rollover Distribution shall mean any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include: any distribution which is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributees designated beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Code Section 401(a)(9); and the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). A portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be paid only to an individual retirement account or annuity described in Code Section 408(a) or (b), or to a qualified defined contribution plan described in Code Section 401(a) or 403(a) that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
21
ARTICLE VI.
Amount of Pension
6.1 Normal and Late Pension . Subject to Section 6.5 and Article XVI, a Participant, including a Participant who meets the requirements in Section 5.1 for a Normal Pension and retires on or after his Normal Retirement Date shall receive his Pension equal to the Actuarial Equivalent of his then Accrued Benefit.
6.2 Early Pension .
(a) Basic Formula . Subject to Section 6.5 and Article XVI, a Participant who meets the requirements in Section 5.2 for an Early Pension shall receive the Actuarial Equivalent of his then Accrued Benefit.
(b) Reduction for Early Commencement . If payment of an Early Pension based on a Participants Accrued Benefit commences before a Participants Normal Retirement Date, such Early Pension shall be reduced for each full and fractional year by which his Annuity Starting Date precedes the first day of the month coincident with or immediately following his Normal Retirement Date in accordance with the following provisions. The monthly amount payable as determined in accordance with this Subsection (b) as of a Participants Annuity Starting Date shall remain in effect for as long as such Early Pension is payable thereafter. Such Early Pension shall be reduced for early commencement to a percentage thereof determined in accordance with the following schedule:
Number of Years of Early Commencement of Early Pension |
Percentage of Early Pension Payable |
|
65 |
100 | |
64 |
100 | |
62 |
100 | |
61 |
96 | |
60 |
92 | |
59 |
88 | |
58 |
84 | |
57 |
80 | |
56 |
76 | |
55 |
72 |
The percentage payable with respect to any fractional year shall be determined by straight-line interpolation between applicable percentages in the foregoing schedule.
6.3 Disability Pension . Subject to Section 6.5 and Article XVI, a Participant who meets the requirements in Section 5.3 for a Disability Pension shall receive his Disability Pension determined in accordance with Section 5.3.
22
6.4 Deferred Vested Pension .
(a) Basic Formula . Subject to Section 6.5 and Article XVI, a Participant who meets the requirements in Section 5.4 for a Deferred Vested Pension shall receive the Actuarial Equivalent of his then Accrued Benefit.
(b) Reduction for Early Commencement . If payment of a Deferred Vested Pension based on a Participants Accrued Benefit commences before the Participants Normal Retirement Date, such Deferred Vested Pension shall be reduced for each full and fractional year by which his Annuity Starting Date precedes the first day of the month coincident with or next following his Normal Retirement Date in accordance with the following provisions. The monthly amount payable as determined in accordance with this subsection (b) as of a Participants Annuity Starting Date shall remain in effect for as long as his Deferred Vested Pension is payable thereafter.
A Participants Deferred Vested Pension based on his Accrued Benefit shall be reduced for early commencement to a percentage thereof determined in accordance with the following schedule:
Age at Commencement of Deferred Vested Pension |
Percentage of Deferred
Vested Pension Payable |
|
65 |
100 | |
64 |
91 | |
63 |
82 | |
62 |
75 | |
61 |
68 | |
60 |
62 | |
59 |
57 | |
58 |
52 | |
57 |
48 | |
56 |
44 | |
55 |
40 | |
54 |
37 | |
53 |
34 | |
52 |
31 | |
51 |
29 | |
50 |
27 | |
49 |
25 | |
48 |
23 | |
47 |
21 | |
46 |
20 | |
45 |
18 | |
44 |
17 | |
43 |
16 | |
42 |
15 | |
41 |
13 | |
40 |
13 | |
39 |
12 | |
38 |
11 | |
37 |
10 | |
36 |
9 | |
35 |
9 | |
34 |
8 | |
33 |
8 | |
32 |
7 | |
31 |
7 | |
30 |
6 | |
29 |
6 | |
28 |
5 | |
27 |
5 | |
26 |
5 | |
25 |
4 | |
24 |
4 | |
23 |
4 | |
22 |
3 | |
21 |
3 | |
20 |
3 | |
19 |
3 | |
18 |
3 |
The percentage payable with respect to any fractional year shall be determined by straight-line interpolation between applicable percentages in the foregoing schedule.
23
6.5 Maximum Pensions . Any Pension to which a Participant of this Plan is entitled at any time during any Plan Year, when expressed as a pension payable on a Plan Year basis (which is the Limitation Year for this Plan), shall not exceed the persons Maximum Annual Benefit. For purposes of this Section 6.5, Maximum Annual Benefit shall mean an annual benefit payable during a Plan Year in an amount equal to (i) the lesser of One Hundred Sixty Thousand Dollars ($160,000) as adjusted by Code Section 415(d) (Dollar Limitation), or (ii) one hundred percent (100%) of the persons average annual Code Section 415 Compensation from an Employer or Affiliate for the persons highest three (3) consecutive, twelve-month periods consistently used by the Committee (or the actual number of consecutive twelve-month periods for persons who are employed less than three consecutive years) (Compensation Limitation), subject to the following:
(a) If the participant has fewer than 10 years of participation in the Plan, the Dollar Limitation shall be multiplied by a fraction, (i) the numerator of which is the number of years (or part thereof) of participation in the Plan and (ii) the denominator of which is 10. In the case of a Participant who has fewer than 10 years of service with the Employer, the Compensation Limitation shall be multiplied by a fraction, (i) the numerator of which is the number of years (or part thereof) of service with the Employer and (ii) the denominator of which is 10.
(b) If the benefit of a Participant begins prior to age 62, the Dollar Limitation applicable to the Participant at such earlier age is an annual benefit payable in the form of a
24
straight life annuity beginning at the earlier age that is the Actuarial Equivalent of the Dollar Limitation applicable to the participant at age 62 (adjusted under (a) above, if required). The Dollar Limitation applicable at an age prior to age 62 is determined as the lesser of (i) the Actuarial Equivalent (at such age) of the Dollar Limitation computed using the interest rate and mortality table (or other tabular factor) specified in Section 2.2 of the Plan and (ii) the Actuarial Equivalent (at such age) of the Dollar Limitation computed using a 5 percent interest rate and the applicable mortality table as defined in Section 2.2 of the Plan. Any decrease in the Dollar Limitation determined in accordance with this paragraph (b) shall not reflect a mortality decrement if benefits are not forfeited upon the death of the participant. If any benefits are forfeited upon death, the full mortality decrement is taken into account.
(c) If the benefit of a Participant begins after the Participant attains age 65, the Dollar Limitation applicable to the Participant at the later age is the annual benefit payable in the form of a straight life annuity beginning at the later age that is Actuarially Equivalent to the Dollar Limitation applicable to the Participant at age 65 (adjusted under (a) above, if required). The Actuarial Equivalent of the Dollar Limitation applicable at an age after age 65 is determined as (i) the lesser of the Actuarial Equivalent (at such age) of the Dollar Limitation computed using the interest rate and mortality table (or other tabular factor) specified in Section 2.2 of the Plan and (ii) the Actuarial Equivalent (at such age) of the Dollar Limitation computed using a 5 percent interest rate assumption and the Applicable Mortality Table as defined in Section 2.2 of the Plan. For these purposes, mortality between age 65 and the age at which benefits commence shall be ignored.
(d) If the Current Accrued Benefit of an individual exceeds his Maximum Annual Benefit, then, for all purposes under this Section 6.5, such Participants Dollar Limitation shall be equal to such Current Accrued Benefit.
(e) Notwithstanding any other provision to the contrary, the maximum pension payable to a Participant shall not exceed the maximum limitations of Code Section 415, which by this reference are specifically incorporated in full into the Plan.
6.6 Transferred Employee Retirement Benefits . Notwithstanding other provisions hereof to the contrary, Pensions and other benefits, if any, payable under this Plan in cases of transfers of employment by Employees between Employers or Affiliates, or by transfers of Employees between this Plan and a plan maintained outside of this Plan by Affiliates, shall be determined in accordance with the provisions of Article IX.
25
ARTICLE VII.
Separation and Death Benefits
7.1 Separation Benefit . A Participant who incurs a Termination of Employment on or after attaining his first eligible Early Retirement Date may elect to receive his Accrued Benefit subject to the Annuity Starting Date requirements of Section 5.6 and the Spousal Consent and other applicable provisions of Article VIII. Such distribution of his Accrued Benefit shall be made in the form of a Qualified Joint and Survivor Pension to a Participant who is married on his Annuity Starting Date or Single Life Annuity for a Participant who is not married on his Annuity Starting Date, unless such Participant elects (with his Spouses Consent, if he is married) to receive such distribution as a Lump Sum. Such election shall be made by completing and delivering to the Committee a form furnished for such purpose by the Committee.
7.2 Death Benefits . The Surviving Spouse of a deceased, Vested Participant shall receive a Survivor Pension with payments commencing on the Annuity Starting Date, unless Survivor Pension coverage for his surviving Spouse has been waived in accordance with Section 7.5. The Beneficiary of a deceased, Vested Participant who left no Surviving Spouse or who had waived Survivor Pension coverage for his Surviving Spouse pursuant to Section 7.5 shall receive a Survivor Pension with payments commencing on the Annuity Starting Date.
7.3 Designation of Beneficiary . Each active or retired Participant may designate a primary Beneficiary or Beneficiaries and a contingent Beneficiary or Beneficiaries to receive any benefit that may become payable under this Plan by reason of his death. If such Participant is married, no Beneficiary other than the Participants current Spouse may be designated as a Beneficiary without a Spouses Consent. Any designation or change in designation by a married Participant of a Beneficiary other than his Spouse shall be invalid under this Plan, if such designation or change in designation is not accompanied by a Spouses Consent. Upon the entry of a decree of divorce respecting a married Participant and his or her former spouse, any designation of such spouse as Beneficiary of such Participant shall be revoked automatically and become ineffective on and after the date the decree is entered, unless otherwise provided in a Qualified Domestic Relations Order. The automatic revocation of such Beneficiary designation shall be treated under the provisions of the Plan as if such former spouse had predeceased the Participant. However, a Participant may designate a former spouse as a Beneficiary under the Plan, provided a properly completed Beneficiary designation form is filed with the Committee subsequent to entry of a decree of divorce respecting the Participant and such former spouse. If a Participant dies without executing a valid Beneficiary designation form, any benefits payable on account of such death shall be paid to such Participants Surviving Spouse, if any, or if the Participant had no Surviving Spouse, to his estate, and such Surviving Spouse or estate, as applicable, shall be such Participants Beneficiary. Such designations shall be made upon the forms furnished by the Committee, and may at any time and from time to time be changed or revoked without notice to any Beneficiary, and shall not be effective unless and until filed with the Committee. Neither the Employers nor the Trustee (in its capacity as Trustee) shall be named as a Beneficiary. For purposes of this Plan, a certified copy of the death certificate, marriage certificate, final divorce decree, or a Qualified Domestic Relations Order shall be sufficient evidence of the event or circumstance to which the document attests, and the Committee may rely thereon. In the absence of such proof, the Committee may rely upon such other evidence as it deems necessary or advisable.
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7.4 Loss of Eligibility to Receive Death Benefit . Notwithstanding any other provision of this Plan, in the event a Beneficiary, Spouse or Surviving Spouse is determined by a court of competent jurisdiction to have intentionally caused the death of a deceased Participant, such person shall be ineligible to receive any Death Benefit from the Plan and such person shall be deemed to have predeceased the deceased Participant. In the event a Beneficiary, Spouse or Surviving Spouse is deemed to have predeceased a deceased Participant pursuant to this Section 7.4, the Death Benefit, if any, then payable shall be paid in accordance with Section 7.3.
7.5 Waiver of Survivor Pension Coverage for Spouse . A Participant who is credited with at least one Hour of Service may waive Survivor Pension coverage with respect to his vested Accrued Benefit for his Spouse with his Spouses Consent at any time during the Applicable Waiver Period, and revoke such waiver at any time during the Applicable Waiver Period, by properly completing and filing with the Committee the appropriate form for such purposes furnished by the Committee. Such a Participant may waive and revoke a waiver without limitations on timing or frequency during the Applicable Waiver Period. Any such waiver of Survivor Pension coverage shall be invalid unless accompanied by a properly completed Beneficiary designation form meeting all of the applicable requirements of Section 7.3. Nor shall any such waiver be valid unless the Participant and his Spouse have received, and acknowledged receipt of, a written explanation of Survivor Pension coverage for a Spouse in such terms as are comparable to the explanation required by Section 8.1. Such written explanation shall be furnished to each such Participant within the 12-month period beginning with the date he becomes a Participant and shall be furnished in any event with each waiver form provided by the Committee. For purposes of this Section 7.5, Applicable Waiver Period means the period beginning twelve (12) months prior to the date such a Participant will become a Vested Participant (assuming continued Vesting Service credit) and ending with the date of death of such Participant; provided, however, any waiver by a Participant prior to the Plan Year in which he attains age thirty-five (35) shall become void and of no further effect as of the first day of such Plan Year, which first day shall be deemed to be the first day of a new Applicable Waiver Period.
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ARTICLE VIII.
Normal and Optional Forms of Payment
8.1 Normal Form of Pension . The normal form of Pension under this Plan for any Participant with at least one Hour of Service on or after the Effective Date shall be determined in accordance with the following:
(a) Married Participant .
(1) Qualified Joint and Survivor Pension . A Participant who is married on his Annuity Starting Date shall receive a reduced Qualified Joint and Survivor Pension, unless during the Applicable Election Period the Participant shall have elected with his Spouses Consent to have his Accrued Benefit paid in an optional form described in Section 8.2, and the Participant shall have delivered a properly completed election form to the Committee at any time before the Annuity Starting Date, which has not been revoked before such Annuity Starting Date.
(2) Explanation . The Committee shall provide each Vested Participant with a written explanation of the optional forms of payment in the manner set forth below. Such written explanation shall be provided to such Participant by personal delivery or first class mail no less than 30 days and no more than ninety (90) days prior to his Annuity Starting Date, unless the Participant elects to waive such minimum thirty (30) day period, in which case payment may commence as soon as eight (8) days after the date such explanation is provided. Such written explanation shall contain a general explanation: (i) of the terms and conditions of a Qualified Joint and Survivor Pension; (ii) the circumstances under which it will be provided; (iii) the Participants right during the Applicable Election Period to make, and the effect of, an election to waive the Qualified Joint and Survivor Pension; (iv) the rights of the Participants Spouse; (v) the Participants right during the Applicable Election Period to make, and the effect of, a revocation of a previous election to waive the Qualified Joint and Survivor Pension; and (vi) the relative values of the various optional forms of payment under the Plan.
(b) Single Participant . A Participant who is not married on his Annuity Starting Date or a married Participant who has elected not to receive his Pension in the form of a Qualified Joint and Survivor Pension shall receive his Pension in the form of a Single Life Annuity, unless the Committee has approved such Participants selection of an optional form of payment described in Section 8.2.
8.2 Optional Forms of Pension . By filing a timely election in writing with the Committee, a Participant may designate any person who is a dependent, as defined in Code Section 152 (without regard to the furnishing of support requirement therein) on the date of the designation, as his contingent pensioner or Beneficiary and elect to receive a Pension that is actuarially equivalent and is payable in accordance with one of the following options, in lieu of the Pension to which he may otherwise become entitled upon Retirement. Option 5 shall only be available to a participant who retires on his Early Retirement Date or Normal Retirement Date.
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If the Participant is married on his Annuity Starting Date, the Participant must designate his Spouse as his contingent pensioner or Beneficiary, as applicable, unless his designation of another dependent is accompanied by a Spouses Consent.
(a) Option 1 . The retired Participant shall receive a Pension payable for life payable in the form of a Single Life Annuity, and payments in the same reduced amount shall, after the retired Participants death, be continued to the contingent pensioner during the contingent pensioners lifetime. Such reduced Pension payable to the Participant shall be eighty-two percent (82%) plus or minus sixty-five hundredths of one percent (0.65%) for each year to the nearest year that the contingent pensioner is older or younger respectively than the Participant multiplied by the Pension payable to the Participant in the form of a Single Life Annuity.
(b) Option 2 . The retired Participant shall receive a reduced Pension payable for life, and payments in the amount of fifty percent (50%) of such reduced Pension shall, after the retired Participants death, be continued to the contingent pensioner during the contingent pensioners lifetime. Such reduced Pension payable to the Participant shall be ninety-three percent (93%) minus twenty-five hundredths of one percent (0.25%) for each year to the nearest year that the contingent pensioner is younger than the Participant, or plus four-tenths of one percent (0.40%) for each year to the nearest year that the contingent pensioner is older than the Participant, multiplied by the Pension payable to the Participant in the form of a Single Life Annuity.
(c) Option 3 . The retired Participant shall receive a reduced Pension payable for life, and payments in the amount of seventy-five percent (75%) of such reduced Pension shall, after the retired Participants death, be continued to the contingent pensioner during the contingent pensioners lifetime. Such reduced Pension payable to the Participant shall be eighty-seven percent (87%), minus four-tenths of one percent (0.40%) for each year to the nearest year that the contingent pensioner is older or younger than the Participant, or plus fifty-five hundredths of one percent (0.55%) for each year to the nearest year that the contingent pensioner is older than the Participant, multiplied by the Pension payable to the Participant in the form of a Single Life Annuity.
(d) Option 4 . The retired Participant shall receive a reduced Pension payable for life, and payments in the amount of one hundred percent (100%) of such reduced Pension shall, after the retired Participants death, be continued to the contingent pensioner during the contingent pensioners lifetime. Such reduced Pension payable to the Participant shall be eighty-six percent (86%) plus or minus sixty-five hundredths of one percent (0.65%) for each year to the nearest year that the contingent pensioner is older or younger respectively than the Participant, multiplied by the Pension payable to the Participant in the form of a Single Life Annuity.
(e) Option 5 . A lump sum cash payment to the Participant determined as of the end of the month immediately preceding payment, provided the Participants Employer, where necessary, files a notice with the Pension Benefit Guaranty Corporation (PBGC) (at the time and in the manner prescribed by the PBGC) notifying the PBGC of such payment or distribution and the PBGC has approved such payment or distribution or, within ninety (90) days after the date on which such notice was filed, has failed to disapprove such payment or distribution. Such lump sum cash payment shall be in an amount equal to the Actuarial Equivalent of the Participants Accrued Benefit.
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(f) Option 6 . The retired Participant shall receive an amount equal to fifty percent (50%) of the Actuarial Equivalent of his then Accrued Benefit calculated as provided under Option 4 above and remaining fifty percent (50%) of his Accrued Benefit shall be paid under any of the other optional forms of payment as provided under either Option 1, Option 2, or Option 3.
A Participant may elect, change, or revoke an election only if such election, change or revocation is filed with the Committee on a form provided for such purpose during the Applicable Election Period.
If the Pension payable to the retired Participant is in the form of a Joint and Survivor Annuity under Option 2, Option 3 or Option 4 (including a Qualified Joint and Survivor Pension), then, in the event such Participants contingent pensioner dies after payment of such Pension has commenced and prior to such Participants death, the monthly amount of the Pension payable to such Participant shall be increased commencing with the first monthly payment to be made immediately following the date of death of such contingent pensioner. In such event, the increased monthly amount of Pension payable to such Participant shall be equal to the monthly amount which would have been payable to the Participant as of his or her Annuity Starting Date if such Participants Pension had been payable in the form of a Single Life Annuity pursuant to Option 1. Such increased monthly amount shall be payable for the remaining life of such Participant during which payment of his or her Pension continues after his or her Spouses death.
If a Participant who makes an election during the Applicable Election Period pursuant to the requirements of this Section 8.2 continues in an Employers employ after his election, no Pension payments shall be made during the period of continued employment until his Annuity Starting Date. If the Participant continues in such employment after such Annuity Starting Date, the election shall become inoperative, but a new election may be made during a subsequent Applicable Election Period.
An election made pursuant to this Section 8.2 shall become inoperative in the event (a) the Participants death occurs prior to the Annuity Starting Date established by his election during the Applicable Election Period, or (b), if applicable, no contingent pensioner is surviving on the Participants Annuity Starting Date.
8.3 Other Benefits Cancelled by Option . Any Pension, Death Benefit, or other benefit that would otherwise have become payable under this Plan, shall be cancelled and superseded by an option elected under this Article VIII as of the date such option or other form of payment becomes operative.
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8.4 Special Restrictions on Payment .
(a) Subject to the following provisions, if the Lump Sum value (including for this purpose a value of zero) of a Pension, Survivor Pension or Separation Benefit payable to a Participant or Surviving Spouse is not greater than Five Thousand Dollars ($5,000), the Committee shall direct that such benefit be paid in a Lump Sum no later than the end of the second plan year following the Plan Year of his Termination of Employment.
(b) For purposes of this Section 8.4, the present value of the nonforfeitable portion of an Accrued Benefit, a Survivor Pension or a Separation Benefit payable to a Participant or his Surviving Spouse shall be treated as greater than Five Thousand Dollars ($5,000) at all times, if the distribution thereof without the consent of the Participant and/or his Surviving Spouse, as applicable, was prohibited by this Section 8.4 immediately before such distribution began. No such consent is required before the commencement of such distribution, if the present value thereof is not more then Five Thousand Dollars ($5,000), or if the Participant has attained age sixty-five (65) or would have attained such age as of the Annuity Starting Date, if he had lived.
(c) In all events, all Pensions and other benefits payable under the Plan shall be payable only in accordance with the requirements of Code Section 401(a)(9) and applicable regulations promulgated thereunder.
8.5 Domestic Relations Orders . The Accrued Benefit of a Participant shall be paid in accordance with the terms of any Qualified Domestic Relations Order.
8.6 Unclaimed Benefits . During the time when a benefit hereunder is payable to any Participant or Beneficiary, the Committee, upon request by the Trustee, or at its own instance shall mail by registered or certified mail to such person, at his last known address, a written demand for his address, or for satisfactory evidence of his continued life, or both. If such information is not furnished to the Committee within three months from the mailing of such demand, then the Committee may, in its sole discretion, determine that such Participant or Beneficiary is deceased and may declare such benefit, or any unpaid portion thereof, terminated as if the death of the distributee (with nonsurviving beneficiary) had occurred on the later of the date of the last payment made thereon or the date such person first became entitled to receive benefit payments. Any such declaration by the Committee shall later be revoked, upon a receipt of the requested information by the Committee.
8.7 Facility of Payment . In the event any person entitled to receive any Pension, Death Benefit or other benefit payment of any nature under the Plan is determined by the Committee to be legally, physically or mentally incapable of personally receiving and receipting for payment thereof, the Committee, in its sole discretion, may direct the Trustee to make payment thereof to such person, persons, institution or institutions then maintaining or having custody of such incapacitated person, as determined by the Committee. The determination of the Committee as to the identity of the proper payee of any Pension, Death Benefit or other benefit of any nature under the Plan and the amount properly payable with respect thereto shall be final and conclusive with respect to all persons for purposes.
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8.8 Loss of Eligibility to Receive Continuation Benefits . Notwithstanding any other provision of this Plan or an Appendix, in the event a contingent annuitant, Surviving Spouse or Beneficiary is determined by a court of competent jurisdiction to have intentionally caused the death of a deceased Participant who was receiving Pension payments prior to his death, such person shall be ineligible to receive any continuation payments from the Plan with respect to such Pension and such person shall be deemed to have predeceased the deceased Participant. In the event a contingent annuitant, Beneficiary or Surviving Spouse is deemed to have predeceased a deceased Participant pursuant to this Section 8.8, any continuation benefits, if any, shall be payable only as determined by the form in which the Pension of such deceased Participant was being paid. In this regard, if such Pension was being paid in the form of joint and survivor annuity (including a Qualified Joint and Survivor Pension) and the contingent pensioner (including a Surviving Spouse) is deemed to have predeceased the deceased Participant, no continuation payments shall be payable to any person or entity with respect to such Pension, unless such Pension was payable for a period certain; in which case payments for the remainder, if any, of such period certain shall be continued to the deceased Participants Beneficiary determined in accordance with Section 7.3.
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ARTICLE IX.
Employment Transfers
9.1 Transfers Between Employers . If an Eligible Employee has a transfer of employment between Employers, his Accrued Benefit and Years of Service earned and credited up to the date of such transfer shall not be reduced and he shall continue to be credited with Vesting Service (but not Benefit Service) with respect to his Accrued Benefit accrued to such date for each Hour of Service during his employment as an Employee with such transferee Employer. Such transferred Employee shall participate in the Plan after such transfer of employment in accordance with the terms of the Plan and any Appendix applicable to his status as an Employee of such transferee Employer and his Accrued Benefit as of any date on or after the date of such transfer shall be determined in accordance with the applicable terms of the Plan (including any applicable Appendix) as such terms exist as of the date of such transfer and as such terms may be amended thereafter.
9.2 Transfers to Non-Employer Affiliates . If an Eligible Employee has a transfer of employment to an Affiliate which is not an Employer, his Accrued Benefit and Years of Service earned and credited up to the date of such transfer shall not be reduced and he shall continue to be credited with Vesting Service (but not Benefit Service) with respect to his Accrued Benefit accrued to such date for each Hour of Service during his employment as an Employee with such transferee Affiliate.
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ARTICLE X.
Administration
10.1 Fiduciaries . Under certain circumstances, the Trustee, the Board of Managers, the Committee, or the Investment Managers may be determined by a court of law to be a fiduciary with respect to a particular action under the Plan or the Trust Agreement. As authorized by ERISA, to prevent any two parties to the Plan from being deemed co-fiduciaries with respect to a particular function, both the Plan and Trust Agreement are intended, and should be construed, to allocate to each party to the Plan only those specific powers, duties, responsibilities, and obligations as are specifically granted to it under the Plan or Trust.
10.2 Allocation of Responsibilities Among Named Fiduciaries .
(a) Trustee . The Trustee shall have the authority and responsibility to manage and control the Trust Fund and for the investment and safekeeping of the assets of the Plan, except to the extent such authority and responsibility is delegated to one or more Investment Managers. The Trustee shall also have those responsibilities set forth in the Trust Agreement and the provisions of this Plan.
(b) Board of Managers . The Board of Managers shall have exclusive authority and responsibility for:
(1) The termination of the Plan;
(2) The adoption of an amendment to this Plan or an Appendix which would materially increase or decrease the level of Accrued Benefits provided for in this Plan or an Appendix;
(3) The appointment and removal of members of the Benefits Committee. The Board of Managers shall designate one member of the Benefits Committee as the Chairman of the Benefits Committee;
(4) The approval of the adoption of this Plan by an Affiliate and the withdrawal from this Plan by an adopting Employer; and
(5) The delegation to the Benefits Committee of any authority and responsibility reserved herein to the Board of Managers.
(c) Committee . The Committee shall have exclusive authority and responsibility for those functions set forth in Section 10.3, 10.4, and 10.5 of this Plan and in other provisions of this Plan. The Committee shall also serve as Plan administrator and shall have exclusive authority and responsibility for those functions set forth in Section 10.4 and in other provisions of this Plan.
(d) Investment Managers . The Investment Managers, if and to the extent appointed by the Benefits Committee, shall have the authority and responsibility for the investment of all or any part of the assets of the Plan, as delegated to the Investment Managers by the Benefits Committee. In investing any of the assets of the Plan, the Investment Managers shall follow any investment objectives or guidelines established by the Benefits Committee and communicated to the Investment Managers.
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10.3 Provisions Concerning the Benefits Committee .
(a) Membership and Voting . The members of the Benefits Committee shall be appointed and removed by the Board of Managers pursuant to Section 10.2(b)(3). The Benefits Committee shall consist of not less than three (3) members. The Board of Managers may remove any member of the Benefits Committee at any time, with or without cause, by written notice to such member and to the other members of the Benefits Committee. Any member may resign by delivering a written resignation to the Board of Managers. Vacancies in the Benefits Committee arising by death, resignation or removal shall be filled by the Board of Managers. The Benefits Committee shall act by a majority of its members at the time in office, and such action may be taken by a vote at a meeting, in writing without a meeting, or by telephonic communications. Attendance at a meeting shall constitute waiver of notice thereof. A member of the Benefits Committee who is a Participant of the Plan shall not vote on any question relating specifically to such Participant. Any such action shall be voted or decided by a majority vote of the remaining members of the Benefits Committee. The Benefits Committee shall appoint a Secretary who may, but need not, be a member thereof. The Benefits Committee may appoint from its members such subcommittees with such powers as the Benefits Committee shall determine.
(b) Powers and Duties of Benefits Committee . The Benefits Committee shall have the authority and responsibility for:
(1) All amendments to this Plan, except to the extent such authority is reserved to the Board of Managers;
(2) The approval of any merger or spin-off of any part of this Plan;
(3) The appointment, removal, with or without cause, or the replacement of the Trustee, Investment Managers, or any member of the Committee; and
(4) The delegation of responsibilities to the Trustee, the Committee, or any other person or entity.
The Benefits Committee may appoint such accountants, counsel, specialists, and other persons as it deems necessary or desirable in connection with the administration of this Plan. Such accountants and counsel may, but need not, be accountants and counsel for the Company or an Affiliate. The Benefits Committee also shall have such other duties, authority and responsibility as may be delegated by the Board of Managers.
10.4 Provisions Concerning the Committee .
(a) Membership and Voting . The Benefits Committee shall be in charge of the operation and administration of this Plan. The Committee shall consist of not less than three (3) members. The Benefits Committee may remove any member of the Committee at any time, with or without cause, by written notice to such member and to the other members of the
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Committee. Any member may resign by delivering a written resignation to the Benefits Committee. Vacancies in the Committee arising by death, resignation or removal shall be filled by the Benefits Committee. The Committee shall act by a majority of its members at the time in office, and such action may be taken by a vote at a meeting, in writing without a meeting, or by telephonic communications. A member of the Committee who is a Participant of the Plan shall not vote on any question relating specifically to such Participant. Any such action shall be voted or decided by a majority vote of the remaining members of the Committee. The Committee shall designate one of its members as the Chairman and shall appoint a Secretary who may, but need not, be a member thereof. The Committee may appoint from its members such subcommittees with such powers as the Committee shall determine.
(b) Duties of Committee . The Committee shall administer the Plan in accordance with its terms and shall have all the powers necessary to carry out such terms. The Committee shall execute any certificate, instrument or other written direction on behalf of the Plan and may make any payment on behalf of the Plan. All interpretations of this Plan, and questions concerning its administration and application, shall be determined by the Committee in its sole discretion and such determination shall be binding on all persons for all purposes. The Committee may appoint such accountants, counsel, specialists, and other persons as it deems necessary or desirable in connection with the administration of this Plan. Such accountants and counsel may, but need not, be accountants and counsel for the Company or an Affiliate. The Committee also shall have such other duties, authority and responsibility as may be delegated by the Benefits Committee.
10.5 Provisions Concerning the Plan Investments . The Benefits Committee shall appoint Investment Managers and monitor the performance of such investments and Investment Managers. The Benefits Committee shall also implement any investment objectives or guidelines which may be established by the Benefits Committee. The Benefits Committee may appoint such accountants, counsel, specialists, and other persons as it deems necessary or desirable in connection with its duties under this Plan. Such accountants and counsel may, but need not, be accountants and counsel for the Company or an Affiliate.
10.6 Delegation of Responsibilities; Bonding .
(a) Delegation and Allocation . The Board of Managers and the Committee, respectively, shall have the authority to delegate and allocate, from time to time, by a written instrument, all or any part of its responsibilities under this Plan to such person or persons as each may deem advisable, and in the same manner to revoke any such delegation or allocation of responsibility. Any action of such person in the exercise of such delegated or allocated responsibilities shall have the same force and effect for all purposes hereunder as if such action had been taken by the Board of Managers or the Committee. An Employer, the Board of Managers, or the Benefits Committee shall not be liable for any acts or omissions of any such person, who shall periodically report to the Board of Managers, or the Benefits Committee, as applicable, concerning the discharge of the delegated or allocated responsibilities.
(b) Bonding . The members of the Benefits Committee shall serve without bond (except as expressly required by federal law) and without compensation for their services as such.
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10.7 No Joint Fiduciary Responsibilities . The Plan is intended to allocate to each named fiduciary the individual responsibility for the prudent execution of the functions assigned to it, and none of such responsibilities or any other responsibility shall be shared by two or more of such named fiduciaries unless such sharing is provided for by a specific provision of the Plan. Whenever one named fiduciary is required herein to follow the directions of another named fiduciary, the two named fiduciaries shall not be deemed to have been assigned a shared responsibility, but the responsibility of a named fiduciary receiving such directions shall be to follow them insofar as such instructions are on their face proper under applicable law.
10.8 Information to be Supplied by Employer . Each Employer shall supply to the Committee, within a reasonable time after the end of each month and in such form as the Committee shall require, the names of all Participants who incurred a Termination of Employment or layoff during the month and the date of termination of each and the amount of Compensation paid to each Participant for the Plan Year of such Termination of Employment. The Committee may rely conclusively on the information certified to it by an Employer. Each Employer shall provide to the Committee or its delegate such other information as it shall from time to time need in the discharge of its duties.
10.9 Records . The regularly kept records of the Committee and of any Employer shall be conclusive evidence of the Accrued Benefit, Vesting Service and Eligibility Service of a Participant, his Compensation, his age, marital status, his status as an Eligible Employee and all other matters contained therein applicable to this Plan; provided that a Participant may request a correction in the record of his age at any time prior to his Annuity Starting Date, and such correction shall be made if within ninety (90) days after such request he furnishes in support thereof a birth certificate, baptismal certificate, or other documentary proof of age satisfactory to the Committee.
10.10 Fiduciary Capacity . Any person or group of persons may serve in more than one fiduciary capacity with respect to the Plan.
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ARTICLE XI.
Trustee
11.1 Appointment of Trustee . A Trustee (or Trustees) shall be the entity designated as Trustee under the Trust Agreement or such other entity appointed by the Benefits Committee. The Trustee shall serve at the pleasure of the Benefits Committee, and shall have such rights, powers and duties as are provided to a Named Fiduciary under ERISA for the administration of the Trust Fund and as are provided in the Trust Agreement.
11.2 Responsibility of Trustee and Investment Manager(s) . All contributions under this Plan shall be paid to and held separately by the Trustee. The Trustee shall have no responsibility relating to the investment and reinvestment of the Trust Fund except with respect to the management of those assets specifically delegated to it in writing. The Investment Manager(s) shall have exclusive management and control of the investments and/or reinvestments of the assets of the Trust Fund assigned to them except as specified above. All property and funds of the Trust Fund shall be retained for the exclusive benefit of Participants, as provided in the Plan, and shall be used to pay benefits to Participants or their beneficiaries or to pay expenses of administration of the Plan and Trust Fund to the extent not paid by the Employers.
11.3 Funding and Investment Policy . The Committee shall periodically obtain cash flow projections from the Actuary and shall supply them to the Benefits Committee, so that an appropriate funding and investment policy may be maintained by such Benefits Committee in accordance with the requirements of ERISA.
11.4 Bonding . Neither the Investment Manager(s) nor Trustee shall be required to furnish any bond or security for the performance of their powers and duties hereunder unless applicable law makes the furnishing of such bond or security mandatory.
11.5 Standard of Conduct of Trustee . The Trustee shall perform all of its functions solely in the interests of the Participants of the Plan and their Beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, and shall not be liable for any conduct on its part which conforms to that standard.
11.6 Payment of Expenses . All expenses incident to the administration, termination or protection of the Plan and Trust, including but not limited to, actuarial, legal, accounting, investment management, Trustees fees and premiums to the Pension Benefit Guaranty Corporation, may, but are not required to, be paid by the Company, which may require reimbursement from the other Employers for their proportionate shares, or if not paid by the Company, shall be paid by the Trustee from the Trust Fund and, until paid, shall constitute a first and prior claim and lien against the Trust Fund.
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ARTICLE XII.
Limitations
12.1 Reemployment of Retired Employees .
(a) Prior to Normal Retirement Date . If a retired Participant is reemployed as an Eligible Employee prior to his Normal Retirement Date, no Pension payments shall be made during the period of such reemployment. Upon subsequent Termination of Employment by such Participant, the Participant shall be entitled to receive a Pension based on his Accrued Benefit as of the end of his period of reemployment or his Benefit Service and Average Monthly Compensation prior to the date of his previous Retirement as well as Benefit Service and Average Monthly Compensation during the period of his reemployment, and in the case of a disabled Participant, his Benefit Service while disabled. In the case of reemployment of a retired Participant who received any Pension payments prior to his reemployment, the Pension payable upon his subsequent Retirement shall be reduced by the Actuarial Equivalent of any Pension payments he received during his previous period of Retirement.
(b) On or After Normal Retirement Date .
(1) Suspension of Pension . If a retired Participant is reemployed as an Eligible Employee on or after his Normal Retirement Date, his Pension shall be suspended for any calendar month during which he earns at least forty (40) Hours of Service under this Plan; provided, however, in no event shall the amount so suspended be greater than the amount of Pension which would have been payable to the Participant if he had been receiving monthly Pension payments under the Plan since his Retirement based on a Single Life Annuity commencing at his age at Retirement.
(2) Status Determination . Any retired Participant who is reemployed by any Employer or Affiliate on or after his Normal Retirement Date may request the Committee to render a determination of whether specific contemplated reemployment will result in a permanent suspension of his Pension under Section 12.2(b)(1). Such requests shall be considered in accordance with this Plans claims procedure, and shall be rendered in a reasonable amount of time.
12.2 Governmental Restrictions .
(a) Limitation on Benefits of Highly Compensated Employees . This Section 12.2 sets forth the limitations required by the Internal Revenue Service on the Employer Contributions which may be used for the benefit of certain Participants. In the event of Plan termination, the benefit of any highly compensated active or former employee is limited to a benefit that is nondiscriminatory under Code Section 401(a)(4). In this regard, benefits distributed to any of the 25 most highly compensated active and highly compensated former employees with the greatest compensation in the current or any prior year are restricted such that the annual payments are no greater than an amount equal to the payment that would be made on behalf of the Participant under a straight life annuity that is the Actuarial Equivalent of the sum of the Participants Accrued Benefit, the Participants other benefits (if any) under the Plan
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(other than a social security supplement, within the meaning of Section 1.411(a)-7(c)(4)(ii) of the Income Tax Regulations), and the amount the Participant is entitled to receive under a social security supplement.
The foregoing restrictions shall not apply if:
(1) after payment of the benefit to a Participant described in the preceding paragraph, the value of plan assets equals or exceeds 110% of the value of current liabilities, as defined in Code Section 412(l)(7);
(2) the value of the benefits for a Participant described above is less than 1% of the value of current liabilities before distribution; or
(3) the value of the benefits payable under the Plan to a Participant described above does not exceed Five Thousand Dollars ($5,000).
For purposes of this Section 12.2, benefit includes loans in excess of the amount set forth in Code Section 72(p)(2)(A), any periodic income, any withdrawal values payable to a living Participant, and any death benefits not provided for by insurance on the Participants life.
(b) Permissible Distributions . A Participants otherwise restricted benefit may be distributed in full to the affected Participant if prior to receipt of the restricted amount, the Participant enters into a written agreement with the Committee to secure repayment to the Plan of the restricted amount. The restricted amount is the excess of the amounts distributed to the Participant (accumulated with reasonable interest) over the amounts that could have been distributed to the Participant under a Single Life Annuity (accumulated with reasonable interest). The Participant may secure repayment of the restricted amount upon distribution by:
(1) entering into an agreement for promptly depositing in escrow with an acceptable depositary, property having a fair market value equal to at least 125 percent of the restricted amount;
(2) providing a bank letter of credit in an amount equal to at least 100 percent of the restricted amount; or
(3) posting a bond equal to at least 100 percent of the restricted amount. If the Participant elects to post bond, the bond will be furnished by an insurance company, bonding company or other surety for federal bonds.
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ARTICLE XIII.
Amendments
13.1 Right to Amend . As provided in Article X, the Benefits Committee or the Board of Managers, as appropriate, reserves the right to make, from time to time, any amendment to this Plan which does not permit any prohibited reversion of any part of the Trust Fund to the Employers, and which does not cause any part of the Trust Fund to be used for, or diverted to, any purpose other than the exclusive benefit of Participants included in this Plan. Retroactive amendments may not decrease the Accrued Benefit of any Participant or Beneficiary thereof determined as of the first Plan Year to which the amendment applies, or as of the time the amendment was adopted, except as permitted by law.
13.2 Plan Merger or Consolidation . In the event of any merger or consolidation with, or transfer of assets or liabilities to any other plan, each Participant in this Plan, upon termination, shall have as a minimum benefit, under the successor plan, the amount he would have received if the Plan had terminated at the time of such merger, consolidation or transfer.
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ARTICLE XIV.
Adoption and Withdrawal
14.1 Procedure for Adoption . Any Affiliate now in existence or hereafter formed or acquired, which is not already an Employer under this Plan and which is otherwise legally eligible, may by formal resolution or decision of its own board of governing authority, adopt this Plan and the related Trust, for all or any classification of persons in its employment, and thereby, from and after the specified effective date shall become an Employer under this Plan. Such adoption shall be effectuated by such formal resolution or decision of the adopting organization as shall be appropriate. The adoption resolution or decision may contain such specific changes and variations in the terms and provisions of this Plan and Trust applicable to such adopting Employer and its Employees, as may be acceptable to the Benefits Committee and attached hereto as an Appendix. However, the sole, exclusive right of any other amendment of whatever kind or extent, to the Plan or Trust are reserved by the Company. The Appendix so added shall become, as to such adopting organization and its Employees, a part of this Plan as then amended or thereafter amended and the related Trust. It shall not be necessary for the adopting organization to sign or execute the original or the amended Plan and Trust documents. The effective date of this Plan for any such adopting organization shall be stated in this restated and amended Plan or in the Appendix, and from and after such effective date such adopting organization shall assume all the rights, obligations and liabilities of an individual Employer entity hereunder and under the Trust. The administrative powers and control of the Company, as provided in the Plan and Trust, including the right of amendment, and of appointment and removal of the Benefits Committee, shall not be diminished by reason of the participation of any such adopting organization in this Plan and Trust.
14.2 Withdrawal . An Employer, by action of its board of managers or other governing authority, may withdraw from this Plan and Trust at any time, without affecting other Employers not withdrawing. The Company may, in its absolute discretion, terminate an adopting Employers participation at any time when in its judgment such adopting Employer fails or refuses to discharge its obligations under this Plan.
14.3 Adoption By Affiliate Contingent Upon Qualification . The adoption and any related amendment of the Plan and its related Trust by an Affiliate is hereby made contingent and subject to the condition precedent that the Plan and its related Trust following such adoption, meets all the statutory requirements for qualified plans, including, but not limited to, Code Section 401(a).
42
ARTICLE XV.
Termination
15.1 Right to Terminate . The Company may at any time terminate the Plan with respect to all or any part of the Participants employed by all or any one of the Employers, and may direct and require the Trustee to liquidate the share of the Trust Fund allocable to such Participants or their Beneficiaries. If the Plan is terminated with respect to less than all Employers maintaining the Plan, the Plan shall continue in effect for Participants of the remaining Employers. In the event that an Employer shall cease to exist, the Plan shall be terminated with respect to the Participants of such Employer, unless a successor organization adopts and continues the Plan. Upon complete or partial termination of the Plan, the rights of all affected Employees to the benefits accrued under the Plan to the date of such termination shall be nonforfeitable to the extent then funded.
15.2 Employer Consolidation or Merger . Upon an Employers liquidation, bankruptcy, insolvency, sale, consolidation or merger to or with another organization which is not an Employer hereunder, in which the Employer is not the surviving company, or upon an adjudication or other official determination of a court of competent jurisdiction or other public authority pursuant to which a conservator, receiver or other legal custodian is appointed for the purpose of operation or liquidation of an Employer, the Trust Fund assets attributable to the Participants of such Employer shall be held or distributed as herein provided, unless the successor to such Employer assumes the duties and responsibilities of such Employer by adopting the Plan and Trust, or by the establishment of a separate plan and trust to which the Trust Fund assets of the Trust held on behalf of such Employer may be transferred with the consent and agreement of such Employer and the Company. Upon the consolidation or merger of two or more of the Employers under the Plan with each other, the surviving Employer or organization shall succeed to all the rights and duties under the Plan and Trust of the Employers involved.
15.3 Allocation and Liquidation of Trust Fund . Upon complete or partial termination of the Plan the proportionate interests of the affected Participants of each Employer, and their Beneficiaries, respectively, shall be determined by the Committee in accordance with Section 4044 of ERISA and other applicable laws and regulations. If any assets of the Plan remain following complete termination of the Plan, they shall revert to the Company as provided in Section 15.5. Notwithstanding the foregoing, in the event the Plan terminates, or there is a spin-off of part of the Plan (in excess of the three percent (3%) of the Plan assets permitted under Treasury Regulation Section 1.414(1)-1(n)(2)), within five (5) years following the date of any merger of any other plan into this Plan after September 2, 1974, and if the sum of the assets in this Plan after any such merger was less than the sum of the present values of the accrued benefits (whether or not vested) of both this Plan and such other plan on a termination basis on the merger date, then a special schedule of benefits shall be created from the necessary (as identified by an enrolled actuary) data maintained by the Employer or the Committee and shall be inserted in and modify the allocation priorities set forth above in this Section 15.3 at the time of such termination or spin-off, in accordance with Treasury Regulation Sections 1.414(1)-1(e)-(j) and 2608.13.
43
15.4 Manner of Distribution . Any distribution after termination or partial termination of this Plan may be made at any time, and from time to time, in whole or in part, to the extent that no discrimination in value results, in cash or in securities or other assets in kind (at fair market value at the time of distribution). In making such distribution, any and all determinations, divisions, appraisals, apportionments and allotments shall be made by the Committee acting with the information supplied by the Actuary and such actions shall be final, binding and conclusive on all persons for all purposes. Provided that no discrimination in value results, the Committee may direct that any or all of the nonforfeitable benefits to be distributed may be paid in a Lump Sum, subject to the consent requirements of Section 8.4.
15.5 Amounts Returnable to an Employer . In no event shall an Employer receive any amounts from the Trust, except such amounts, if any, as set forth below:
(a) Upon termination of the Plan and notwithstanding any other provisions of the Plan, the Company shall receive such amounts, if any, as may remain after the satisfaction of all liabilities of the Plan to affected Participants and Beneficiaries, and arising out of any variations between actual requirements and expected actuarial requirements;
(b) In the event of a contribution made by an Employer by a mistake of fact, such contribution may be returned to such Employer within one year after payment thereof, subject to the provisions of subsection (d), below;
(c) Each contribution hereunder is conditioned upon the deductibility of such contribution under Code Section 404 for the Plan Year for which such contribution is made and shall be returned to an Employer within one (1) year of disallowance, if such deduction is disallowed (to the extent of the disallowance), subject to the provisions of subsection (d), below; and
(d) The return of an Employer Contribution to an Employer under subsections (b) or (c), above, must comply with each of the following requirements:
(1) The amount of such Employer Contribution which may be so returned shall not be greater than the excess of (i) the amount contributed over (ii) the amount that would have been contributed had there been no mistake in determining the deduction or had there been no mistake of fact, as the case may be; and
(2) The amount of such Employer Contribution which may be so returned shall not be increased by earnings attributable to the investment or reinvestment of such Employer Contribution in the Trust, but shall be reduced by losses attributable to the investment or reinvestment of such Employer Contribution in the Trust.
44
ARTICLE XVI.
Top-Heavy Provisions
16.1 Definitions . For purposes of this Article XVI, the following words and phrases shall have the meanings set forth below when used in the capitalized form, unless a different meaning is clearly warranted by the context:
(a) Aggregation Group shall mean a Required Aggregation Group or a Permissive Aggregation Group, as appropriate.
(1) Required Aggregation Group shall mean that group of plans comprised of each defined contribution and each defined benefit plan sponsored by the Company or any Affiliate in which at least one (1) Key Employee participates, and any other defined contribution or defined benefit plan sponsored by the Company or by any Affiliate which enables a plan in which a Key Employee participates to satisfy the minimum participation and non-discrimination requirements of Code Sections 401(a)(4) or 410.
(2) Permissive Aggregation Group shall mean all plans included in the Required Aggregation Group and any other plan or plans sponsored by the Company or by an Affiliate but only if such group of plans would satisfy, in the aggregate, the minimum participation and non-discrimination requirements of Code Sections 410 and 401(a)(4) and contributions or benefits in such other plans are comparable to contributions or benefits in the plans of the Required Aggregation Group. The Committee shall determine which plan or plans shall be taken into account in determining the Permissive Aggregation Group.
(b) Annual Compensation means compensation within the meaning of Code Section 415(c)(3).
(c) Determination Date shall mean, with respect to a Plan Year, the last day of the immediately preceding Plan Year.
(d) Key Employee shall mean any Employee or former Employee (and any beneficiaries of a former employee) who, for the Plan Year containing the Determination Date or any of the four preceding Plan Years, is:
(1) An officer of an Employer (or of an Affiliate) whose Annual Compensation during the Plan Year containing the Determination Date is greater than One Hundred Thirty Thousand Dollars ($130,000) (as adjusted under Code Section 416(i)(1); provided however, excluding Employees described in Code Section 414(q)(5), no more than the lesser of:
(A) fifty (50) Employees; or
(B) the greater of three (3) Employees or ten percent (10%) of all Employees
45
shall be treated as officers, and such officers shall be selected from those with the highest Annual Compensation during the Plan Year containing the Determination Date;
(2) A five percent (5%) or greater owner of an Employer, as defined in Code Section 416(i)(B)(i); or
(3) A one percent (1%) or greater owner of an Employer (as defined in Code Section 416(i)(B)(ii)) whose Annual Compensation from an Employer is greater than One Hundred Fifty Thousand Dollars ($150,000).
(e) Non-Key Employee shall mean an Employee who is not a Key Employee, including an Employee who is a former Key Employee.
(f) Valuation Date shall mean (i) with respect to this Plan, the last valuation date of a Plan Year containing the Determination Date, which is the valuation date as of which the Actuary determines the funding requirements for the Trust Fund in accordance with ERISA and as provided in Section 11.3; (ii) with respect to any other defined benefit plan included in the Aggregation Group, the valuation date within the twelve (12) month period ending on the Determination Date as of which the minimum funding standards are determined for such plan; and (iii) with respect to a defined contribution plan included in the Aggregation Group, the valuation date within the twelve (12) month period ending on the Determination Date as of which the account balances under such plan are determined.
16.2 Application of Top-Heavy Provisions . The provisions of this Article XVI shall be applied as follows:
(a) Single Plan Determination . Unless this Plan is included in an Aggregation Group, it will be considered top-heavy and the provisions of this Article XVI shall be applicable, if, as of a Determination Date, the cumulative Accrued Benefits of Key Employees under the Plan exceeds sixty percent (60%) of the cumulative Accrued Benefits of all Employees under the Plan.
(b) Aggregation Group Determination . If the Plan is included in an Aggregation Group, it will be considered top-heavy and the provisions of this Article XVI shall be applicable, if as of a Determination Date, the sum of account balances of Key Employees under all defined contribution plans in the group and the cumulative accrued benefits of Key Employees under all defined benefit plans in such group exceed sixty percent (60%) of the same amounts determined for all employees under all plans included in the Aggregation Group.
(c) Top-Heavy Test . For purposes of subsection (a) and (b) above, accrued benefits and account balances shall be adjusted for any distribution made in the one-year period ending on the Determination Date, for any contribution due but unpaid as of the Determination Date and for any contributions made after the most recent Valuation Date. In the case of a distribution made for a reason other than separation from service, death, or disability, the previous sentence shall be applied by substituting five-year period for one-year period. The value of cumulative accrued benefits and the value of account balances shall be determined as of the most recent Valuation Date which is within the twelve-month period ending on the
46
Determination Date and the accrued benefit of a current Employee shall be determined as if he had incurred a Termination of Employment as of such Valuation Date. The present value of accrued benefits shall be determined using the actuarial assumptions set forth in Section 2.2, without regard to whether such benefit is accrued under this Plan or any other defined benefit plan included in the Aggregation Group. The accrued benefit and account balance of a Participant who has not performed services for an Employer or an Affiliate during the one-year period ending on the Determination Date, shall be disregarded. The determination of top-heavy status, including the extent to which contributions, distributions, rollovers and transfers are taken into account shall be made in accordance with Code Section 416 and the Treasury Regulations issued thereunder. Solely for the purpose of determining if this Plan, or any other plan included in a required Aggregation Group of which this Plan is a part, is top-heavy (within the meaning of Code Section 416(g)) the Accrued Benefit of a Non-Key Employee shall be determined under (a) the method, if any, that uniformly applies for accrual purposes under all plans maintained by Affiliates, or (b) if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional accrual rate of Code Section 411(b)(1)(C).
16.3 Top-Heavy Determination . The Committee shall determine whether the Plan is a top-heavy plan with respect to each Plan Year. The Committees determination shall be final and binding on all Participants.
16.4 Vesting Requirements . If the Plan is determined to be a top-heavy plan with respect to a Plan Year, then a Participants interest in his Accrued Benefit shall vest in accordance with the following schedule:
Years of Vesting Service |
Vesting Percentage
|
||
Less than 2 |
0 | % | |
2 |
20 | % | |
3 |
40 | % | |
4 |
60 | % | |
5 |
80 | % | |
6 or more |
100 | % |
If in a subsequent Plan Year, the Plan is no longer top-heavy, the vesting provisions that were in effect prior to the time the Plan became top-heavy shall be reinstated; provided, however, that any portion of a Participants Accrued Benefit which was vested prior to the time the Plan was no longer top-heavy shall remain vested; and provided further that a Participant who has at least three years of Vesting Service at the start of such Plan Year shall have the option of remaining under the vesting schedule in effect while the Plan was top-heavy. Notwithstanding the foregoing, this Article XVI does not apply to the Accrued Benefit of any Participant who does not have an Hour of Service after the Plan has initially become top-heavy.
47
16.5 Minimum Benefit .
(a) Minimum Accrual Formula . Subject to the provisions of subsection (b) below, if the Plan is determined to be top-heavy with respect to a Plan Year, then each Non-Key Employee who is a Participant and who completed at least one thousand (1,000) Hours of Service during such Plan Year shall accrue a benefit (expressed as a Single Life Annuity commencing at age sixty-five (65)) which is not less than the product of (1) and (2) below (Minimum Accrual Amount), where:
(1) is the number of Years of Service performed while the Plan is a top-heavy plan; and
(2) is two percent (2%) of such Participants average annual Code Section 415 Compensation for the period of the five (5) consecutive Plan Years during which the Plan is top-heavy for which such Participant has the highest aggregate of such compensation;
provided such product shall not exceed twenty percent (20%) of such average Code Section 415 Compensation, and the Minimum Accrual Amount shall be determined without regard to Social Security integration.
(b) Participation in Other Plans . If a Non-Key Employee who is entitled to a Minimum Accrual Amount is a participant in both a defined contribution plan and this Plan in a Plan Year in which this Plan is top-heavy, such Non-Key Employee shall receive an allocation under such defined contribution plan equal to five percent (5%) of his Code Section 415 Compensation for such Plan Year; provided, however, if such Non-Key Employee is a participant in more than one defined contribution plan, such minimum contribution allocation shall be provided under only one such defined contribution plan as determined in accordance with the top-heavy coordination provisions of such plans.
16.6 Adjustment in Maximum Limitation on Annual Benefits . For any Plan Year with respect to which the Plan is top-heavy, the denominators of defined benefit plan fraction and the defined contribution plan fraction described in Section 6.5(g) shall be determined under Code Section 415(e) by multiplying the dollar limitation then in effect by 1.0 instead of 1.25.
48
ARTICLE XVII.
Miscellaneous
17.1 Nonguarantee of Employment . Nothing contained in this Plan shall be construed as a contract of employment between an Employer and any Employee, or as a right of any Employee to be continued in the employment of an Employer, or as a limitation of the right of an Employer to discharge any of its Employees, with or without cause.
17.2 Rights to Trust Assets . No Participant shall have any right to, or interest in, any assets of the Trust Fund upon his Termination of Employment or otherwise, except as provided from time to time under this Plan, and then only to the extent of the benefits payable to such Participant out of the assets of the Trust Fund. Neither the Employers, the Trustee nor any member of the Committee shall be liable to any Participant or beneficiary for benefits from this Plan, except for those payable from the Trust Fund in accordance with the terms of the Plan and the Trust.
17.3 Nonalienation of Benefits . Except as expressly provided for by this Plan or otherwise permitted by law, benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or levy of any kind, either voluntary or involuntary, including any liability for alimony or other payments for property settlement or support of a spouse, former spouse or for any other relative of the Participant, but excluding devolution by death or mental incompetency, prior to being received by the person entitled to the benefit under the terms of the Plan; and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable hereunder shall be void. The Trust Fund shall not in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits hereunder; provided, however, a Participants benefit may be offset to the extent necessary to satisfy the Participants criminal conviction for a crime involving the Plan, a civil judgment (including a consent order or decree) against the Participant or a settlement agreement entered into by the Participant, all in accordance with the provisions Code Section 401(a)(13)(C). None of the unpaid Plan benefits or Trust assets shall be considered an asset of the Participant in the event of his insolvency or bankruptcy. This Section 17.3 shall not bar any voluntary and revocable assignment to an Employer (or other designated person) by a Participant which is permitted under Treasury Regulation Section 1.401(a)-13, including any such assignment of a portion of any payment that such Participant otherwise is entitled to receive under this Plan for the purpose of paying part or all of the costs allocable to the Participant under a retiree medical expense plan.
49
ARTICLE XVIII.
Procedure for Identification and Processing
of Qualified Domestic Relations Orders
18.1 Definitions . The capitalized terms used in this Procedure, unless otherwise specifically defined below, shall have the same meaning as provided in this Plan as amended from time to time.
(a) Alternate Payee shall mean any spouse, former spouse, child or other dependent of a Participant who is recognized by a Domestic Relations Order as having the right to receive all or any portion of the benefits payable under the Plan with respect to such Participant.
(b) Domestic Relations Order or Order, used interchangeably, shall mean any judgment, decree or order of a court of competent jurisdiction, including approval of a property settlement agreement, (i) that relates to the provision of child support, alimony payments or marital property rights to a spouse, former spouse, child or other dependent of a Participant, and (ii) that is made pursuant to the domestic relations law of a state, including a community property law.
(c) Qualified Domestic Relations Order shall mean a Domestic Relations Order that meets all of the requirements specified in this Procedure, and that creates or recognizes the existence of the right of an Alternate Payee to receive, or assigns to an Alternate Payee the right to receive, all or a portion of the benefits payable with respect to a Participant under the Plan. The determination of the status of a Domestic Relations Order shall at all times be made in accordance with the provisions of any applicable regulations issued by the Secretary of Labor or the Secretary of the Treasury. The Committees determination of the status of a Domestic Relations Order shall be final and binding on all persons.
18.2 Status of Order . The Committee shall recognize the Order as a Qualified Domestic Relations Order if the Order satisfies all of the following requirements:
(1) The Order discloses the name and last known mailing address, if available, of the Participant and each Alternate Payee covered by the Order; provided , however , that an Order shall not fail to be a Qualified Domestic Relations Order merely because the Order does not specify the address of the Participant or an Alternate Payee, if the Committee is otherwise aware of the address of such Participant or Alternate Payee.
(2) The Order specifies the amount or the percentage of the Participants benefits to be paid to each Alternate Payee.
(3) The Order identifies the number of payments or periods to which such Order applies.
(4) The Order contains information sufficient to assure that the Order relates to the Plan.
50
(5) The Order does not require any type or form of payment of benefits or any option that is not otherwise provided under the Plan (nor require payment in the form of a joint and survivor annuity with respect to the Alternate Payee and any joint annuitant); provided , however , in the case of any payment before distribution of a Participants Accrued Benefit, as applicable, has commenced, an Order shall not be treated as failing to meet this requirement solely because such Order requires the payment of benefits to an Alternate Payee in a single-sum payment of the entire benefit of such Alternate Payee.
(6) The Order does not affect any portion of the Participants Accrued Benefit, as applicable, which is not fully-vested, nor any death benefit which has not been awarded at the date of the Order.
(7) The Order does not require the Plan to provide increased benefits, as determined on the basis of actuarial value.
(8) The Order provides that any income tax basis, if any, attributable to a Participants Accrued Benefit, as applicable, shall be proportioned to the benefit awarded to the Alternate Payee in the same percentage as such awarded benefit bears to such Accrued Benefit, as applicable, as of the date such Accrued Benefit is divided.
(9) The Order does not require the payment of benefits to an Alternate Payee that are required to be paid to another Alternate Payee under another Order previously determined by the Committee to be a Qualified Domestic Relations order.
18.3 Procedural Requirements .
(a) Copy of Order . Upon receipt by the Company of a certified copy of a Domestic Relations Order, the Committee promptly shall notify the Participant and any Alternate Payee that the Committee has received such Order and the Committee shall provide the Participant and each Alternative Payee with a copy of this Procedure.
(b) Notification . Within a reasonable time after receipt by the Committee of a Domestic Relations Order, or within such time period as shall be established under any applicable regulations issued by the Secretary of Labor or the Secretary of the Treasury, the Committee shall determine whether the Order is a Qualified Domestic Relations Order and shall notify the Participant and each Alternate Payee of such determination. If the Committee determines that an Order is not a Qualified Domestic Relations Order, such notice shall advise the Alternate Payee that he or she may have a right to petition the issuing court to amend the Order. Notifications shall be sent to the addresses specified in the Domestic Relations Order, or if the Domestic Relations Order does not specify addresses, to the last known address of the Participant and the Alternate Payee.
18.4 Segregation of Assets and Payments . During the eighteen (18) month period commencing thirty (30) days after a Domestic Relations Order has been received by the Committee and before its status has been determined, any amounts that would have been payable
51
under the Plan to the Alternate Payee pursuant to the Order during such period shall be segregated under the Plan. If, within such eighteen-month period, the Order is determined to be a Qualified Domestic Relations Order by the Committee, a court of competent jurisdiction, or otherwise, the Committee shall pay the segregated amounts to the persons entitled to receive them. If it is determined that the Order is not a Qualified Domestic Relations Order or if the issue cannot be resolved within such eighteen-month period, the Committee shall cause the segregated amounts to be paid to the person or persons who would have been entitled to receive such amounts in the absence of such Order. The payment of any benefits from the Plan to a Participant or Alternate Payee pursuant to a Qualified Domestic Relations Order shall be suspended during any period during which the enforcement of such Order shall have been stayed by court of competent jurisdiction, if written notice of such stay is delivered to the Committee by a Participant or Alternate Payee.
18.5 Modification of Procedure . This Procedure may be modified from time to time by the Committee in its discretion to conform with applicable rules or regulations promulgated by the Secretary of Labor or Secretary of the Treasury.
52
ARTICLE XIX.
Claims Procedure
19.1 Claims Procedure . The Committee shall adopt, and may change from time to time, claims procedures, provided that such claims procedures and changes thereof shall conform with Section 503 of ERISA and the regulations promulgated thereunder. Such claims procedures, as in effect from time to time, shall be deemed to be incorporated herein and made a part hereof.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the foregoing instrument comprising the Magellan Pension Plan, as adopted effective January 1, 2004, Magellan Midstream Holdings, L.P., as the Company, has caused these presents to be duly executed in its name and behalf as of the 31 ST day of December, 2003.
Magellan Midstream Holdings, L.P. |
||
By: |
Magellan Midstream Management, LLC, Its General Partner |
|
By: |
/s/ John D. Chandler |
|
COMPANY |
53
Exhibit 10(c)
MAGELLAN 401(k) PLAN
Effective as of January 1, 2004
MAGELLAN 401(k) PLAN
TABLE OF CONTENTS
Page
|
||||||
ARTICLE I. Name and Purpose of Plan |
1 | |||||
1.1 |
Name of Plan |
1 | ||||
1.2 |
Purpose |
1 | ||||
1.3 |
Exclusive Benefit of Employees |
1 | ||||
ARTICLE II. DEFINITIONS |
2 | |||||
2.1 |
Accounts |
2 | ||||
2.2 |
Accrued Benefit |
2 | ||||
2.3 |
Active Participant |
2 | ||||
2.4 |
Affiliate |
2 | ||||
2.5 |
After-Tax Account |
2 | ||||
2.6 |
After-Tax Contributions |
2 | ||||
2.7 |
Authorized Leave of Absence |
2 | ||||
2.8 |
Beneficiary |
3 | ||||
2.9 |
Benefits Committee |
3 | ||||
2.10 |
Board of Managers |
3 | ||||
2.11 |
Catch-up Account |
3 | ||||
2.12 |
Catch-up Contributions |
3 | ||||
2.13 |
Code |
3 | ||||
2.14 |
Company |
3 | ||||
2.15 |
Compensation |
3 | ||||
2.16 |
Computation Period |
4 | ||||
2.17 |
Contribution Dollar Limit |
4 | ||||
2.18 |
Disability |
4 | ||||
2.19 |
Earned Income |
4 | ||||
2.20 |
Effective Date |
4 | ||||
2.21 |
Eligible Employee |
4 | ||||
2.22 |
Employee |
5 | ||||
2.23 |
Employee Contribution Account |
5 | ||||
2.24 |
Employee Contributions |
5 | ||||
2.25 |
Employer |
5 | ||||
2.26 |
Employer Contributions |
5 | ||||
2.27 |
Employer Contribution Account |
5 | ||||
2.28 |
Employer Matching Contribution Account |
5 | ||||
2.29 |
Employer Matching Contributions |
5 | ||||
2.30 |
Employer Discretionary Contribution Account |
5 | ||||
2.31 |
Employer Discretionary Contributions |
5 | ||||
2.32 |
Employer Salary Deferral Contribution Account |
6 | ||||
2.33 |
Employer Salary Deferral Contributions |
6 | ||||
2.34 |
ERISA |
6 | ||||
2.35 |
Forfeiture |
6 |
i
2.36 |
414(s) Compensation |
6 | ||||
2.37 |
Highly Compensated Employee |
6 | ||||
2.38 |
Hour of Service |
6 | ||||
2.39 |
Investment Fund |
8 | ||||
2.40 |
Leased Employee |
8 | ||||
2.41 |
Normal Retirement Date |
9 | ||||
2.42 |
Non-Highly Compensated Employee |
9 | ||||
2.43 |
One Year Break-in-Service |
9 | ||||
2.44 |
Participant |
9 | ||||
2.45 |
Pension Plan |
9 | ||||
2.46 |
Plan |
9 | ||||
2.47 |
Plan Year |
9 | ||||
2.48 |
Pre-Tax Account |
9 | ||||
2.49 |
Pre-Tax Contributions |
9 | ||||
2.50 |
Qualified Domestic Relations Order |
9 | ||||
2.51 |
Rollover Contributions |
9 | ||||
2.52 |
Rollover Contribution Account |
9 | ||||
2.53 |
Self-Employed Individual |
9 | ||||
2.54 |
Termination of Employment |
10 | ||||
2.55 |
Trust |
10 | ||||
2.56 |
Trust Agreement |
10 | ||||
2.57 |
Trust Fund |
10 | ||||
2.58 |
Trustee |
10 | ||||
2.59 |
Valuation Date |
10 | ||||
2.60 |
Williams |
10 | ||||
2.61 |
Williams Plan |
10 | ||||
2.62 |
Year(s) of Service |
10 | ||||
ARTICLE III. PARTICIPATION |
11 | |||||
3.1 |
Entitlement to Participation |
11 | ||||
3.2 |
Duration of Participation |
11 | ||||
3.3 |
Correction for Erroneous Inclusion of Employee |
11 | ||||
ARTICLE IV. EMPLOYEE CONTRIBUTIONS |
12 | |||||
4.1 |
Requirement of Employee Contributions |
12 | ||||
4.2 |
Amount of Employee Contributions |
12 | ||||
4.3 |
Maximum Amount of Pre-Tax Contributions |
12 | ||||
4.4 |
Manner of Electing |
13 | ||||
4.5 |
Change of Election |
13 | ||||
4.6 |
Effective Date of Election |
13 | ||||
4.7 |
Deposit of Employee Contribution |
13 | ||||
4.8 |
Pre-Tax Contributions |
14 | ||||
4.9 |
Actual Deferral Percentage Test |
14 | ||||
4.10 |
Actual Contribution Percentage Test |
15 | ||||
4.11 |
Excess Elective Contributions |
16 | ||||
4.12 |
Excess Aggregate Contributions |
17 | ||||
4.13 |
Requirements for Rollover Contributions |
18 |
ii
4.14 |
Catch-up Contributions |
18 | ||||
4.15 |
Recharacterizations |
19 | ||||
ARTICLE V. EMPLOYER CONTRIBUTIONS AND ALLOCATIONS |
20 | |||||
5.1 |
Employer Matching Contributions |
20 | ||||
5.2 |
Employer Discretionary Contributions |
20 | ||||
5.3 |
Employer Salary Deferral Contributions |
20 | ||||
5.4 |
Deposit and Investment of Employer Matching Contributions |
20 | ||||
5.5 |
Allocation of Employer Discretionary Contributions |
21 | ||||
5.6 |
Determination and Amount of Employer Contributions |
21 | ||||
5.7 |
Application of Forfeitures |
21 | ||||
5.8 |
Maximum Contributions |
21 | ||||
ARTICLE VI. INVESTMENT PROVISIONS |
24 | |||||
6.1 |
Investment of Future Employee Contributions |
24 | ||||
6.2 |
Investment of Employee Contribution Account and Employer Contribution Account |
24 | ||||
ARTICLE VII. TRUST AGREEMENT AND TRUSTEE |
25 | |||||
7.1 |
Funding Instrument |
25 | ||||
7.2 |
Selection of Trustee |
25 | ||||
7.3 |
Trustees Duties |
25 | ||||
7.4 |
Trust Expenses |
25 | ||||
7.5 |
Trust Entity |
25 | ||||
7.6 |
Accrued Benefit |
25 | ||||
7.7 |
Trust Income |
26 | ||||
7.8 |
Correction of Error |
26 | ||||
7.9 |
Investment Options |
26 | ||||
7.10 |
Right of Employers to Trust Assets |
26 | ||||
7.11 |
Establishment and Deletion of Investment Funds |
27 | ||||
7.12 |
Self-directed Brokerage Fund |
27 | ||||
ARTICLE VIII. BENEFITS |
28 | |||||
8.1 |
Payment of Accrued Benefit on or after Normal Retirement Date or Total and Permanent Disability |
28 | ||||
8.2 |
Payment of Accrued Benefit on Death |
28 | ||||
8.3 |
Payment of Accrued Benefits Upon Termination of Employment; Vesting |
30 | ||||
8.4 |
Withdrawal of Benefits |
32 | ||||
8.5 |
Deduction of Taxes from Amounts Payable |
34 | ||||
8.6 |
Special Provisions Regarding Payment of Benefits |
34 | ||||
8.7 |
Minimum Distribution Requirements IRS Model Amendment |
35 | ||||
8.8 |
Facility of Payment |
36 | ||||
8.9 |
Advance Payment of Benefits |
37 | ||||
8.10 |
Unclaimed Amounts |
37 | ||||
8.11 |
Domestic Relations Order Distributions |
37 |
iii
ARTICLE IX. ADMINISTRATION |
38 | |||||
9.1 |
Fiduciaries |
38 | ||||
9.2 |
Allocation of Responsibilities Among Named Fiduciaries |
38 | ||||
9.3 |
Provisions Concerning the Benefits Committee |
38 | ||||
9.4 |
Delegation of Responsibilities: Bonding |
40 | ||||
9.5 |
No Joint Fiduciary Responsibilities |
40 | ||||
9.6 |
Information to be Supplied by Employer |
40 | ||||
9.7 |
Records |
41 | ||||
9.8 |
Fiduciary Capacity |
41 | ||||
9.9 |
Blackout Period Restrictions |
41 | ||||
9.10 |
Military Leave |
41 | ||||
ARTICLE X. AMENDMENT AND TERMINATION OF THE PLAN |
42 | |||||
10.1 |
Discontinuance of Contributions |
42 | ||||
10.2 |
Amendments |
42 | ||||
10.3 |
Plan Termination |
43 | ||||
10.4 |
Payment Upon Termination |
43 | ||||
ARTICLE XI. TOP-HEAVY PROVISIONS |
44 | |||||
11.1 |
Definitions |
44 | ||||
11.2 |
Application of Top-Heavy Provisions |
44 | ||||
11.3 |
Top-Heavy Determination |
45 | ||||
11.4 |
Vesting Requirements |
45 | ||||
11.5 |
Minimum Contribution Amount |
45 | ||||
ARTICLE XII. LOANS |
47 | |||||
12.1 |
Authorization of Loans |
47 | ||||
12.2 |
Minimum Requirements for Loans |
47 | ||||
12.3 |
Accounting for Loans |
48 | ||||
12.4 |
Fees |
48 | ||||
ARTICLE XIII. SPECIAL PLAN TO PLAN TRANSFERS |
49 | |||||
13.1 |
Transfers From Other Plans |
49 | ||||
ARTICLE XIV. DIRECT ROLLOVERS |
50 | |||||
14.1 |
Right of Direct Rollover |
50 | ||||
14.2 |
Definitions |
50 | ||||
ARTICLE XV. MISCELLANEOUS PROVISIONS |
52 | |||||
15.1 |
Employer Adoption |
52 | ||||
15.2 |
Plan Merger |
52 | ||||
15.3 |
Indemnification |
52 | ||||
15.4 |
Nonalienation of Benefits |
52 | ||||
15.5 |
Contract of Employment |
52 | ||||
15.6 |
Source of Benefits |
53 | ||||
15.7 |
Employees Trust |
53 | ||||
15.8 |
Gender and Number |
53 |
iv
15.9 |
Headings |
53 | ||||
15.10 |
Invalidity of Certain Provisions |
53 | ||||
15.11 |
Law Governing |
53 | ||||
ARTICLE XVI. CLAIM REVIEW PROCEDURES |
54 | |||||
16.1 |
Claims Procedure |
54 |
v
MAGELLAN 401(k) PLAN
MAGELLAN MIDSTREAM HOLDINGS, L.P., a Delaware limited partnership, hereby adopts the Magellan 401(k) Plan upon the following terms and conditions. This instrument is intended to meet the qualification requirements of Section 401(a) of the Code. The effective date of this Plan is January 1, 2004, except as otherwise stated in the Plan.
ARTICLE I.
Name and Purpose of Plan
1.1 Name of Plan . This Plan shall be known hereafter as the MAGELLAN 401(K) PLAN.
1.2 Purpose . The purpose of this Plan is to provide retirement and incidental benefits for the eligible Employees of the Employer; to enable Employees of the Employer who are eligible to participate in the Plan to accumulate funds to provide a retirement income; and, to distribute the corpus and income of the funds accumulated by the Trust, in accordance with the Plan, to the Participants and their Beneficiaries.
1.3 Exclusive Benefit of Employees . This Plan and the related Trust hereto are established under and pursuant to the Employee Retirement Income Security Act of 1974, as amended, and shall be maintained for the exclusive benefit of the eligible Employees of the Employer. The assets of the Trust Fund shall never inure to the benefit of the Employer and shall be held for the exclusive purposes of providing Benefits to Participants and their Beneficiaries and defraying reasonable expenses of administering the Plan.
1
ARTICLE II.
DEFINITIONS
The following provisions of this Article provide basic definitions that are used throughout this Plan:
2.1 Accounts . The word Accounts means a Participants Employee Contribution Account and Employer Contribution Account, and shall include all subaccounts under each such Account.
2.2 Accrued Benefit . The words Accrued Benefit means a Participants entire interest in his Accounts, determined as of any Valuation Date and reflected by the records maintained by the Trustee. The value of an Accrued Benefit at any time shall be its value as adjusted on the coinciding or immediately preceding Valuation Date.
2.3 Active Participant . The words Active Participant means, for each payroll period, a Participant who makes Employee Contributions to the Plan for such payroll period other than Catch-up Contributions and Rollover Contributions.
2.4 Affiliate . The word Affiliate means any corporation which is a member of the controlled group of corporations (as defined in Code Section 414(b)) which includes an Employer; any trade or business (whether or not incorporated) which is under common control (as defined in Code Section 414(c)) with an Employer; an organization (whether or not incorporated) which is a member of a related company service group (as defined in Code Section 414(m)) which includes an Employer and any other entity required to be aggregated with an Employer pursuant to regulations under Code Section 414(o). Solely for purposes of applying the maximum limitation on Annual Additions set forth in Section 5.8, the standard of control under Code Sections 414(b) and 414(c) shall be deemed to be more than 50% rather than at least 80%.
2.5 After-Tax Account . The words After-Tax Account means a subaccount plus income and gains credited thereto and minus all losses, expenses, distributions, and transfers chargeable thereto, comprised of the Participants After-Tax Contributions to this Plan, and, if applicable, his after-tax accounts rolled over to this Plan from another plan qualified under Section 401(a) of the Code.
2.6 After-Tax Contributions . The words After-Tax Contributions means contributions made by the Participant which are not Pre-Tax Contributions, Catch-up Contributions or Rollover Contributions.
2.7 Authorized Leave of Absence . The words Authorized Leave of Absence means an absence, with or without compensation, authorized on a non-discriminatory basis by an Employer. An Authorized Leave of Absence may be granted by an Employer for sickness, Disability, accident, injury, or for other reasons and shall be granted for military service to the extent the Plan is required to do so under applicable federal law.
2
2.8 Beneficiary . The word Beneficiary means any person designated under Section 8.2 to receive the Accrued Benefit of a Participant that is payable under this Plan upon death.
2.9 Benefits Committee . The words Benefits Committee means the Employee Benefit Plans Committee comprised of that group of individuals appointed by the Chief Executive Officer of the Company from time to time to serve as members of the Benefits Committee.
2.10 Board of Managers . The words Board of Managers means the board of managers of the general partner of the Company.
2.11 Catch-up Account . The words Catch-up Account means a sub-account, plus income and gains credited thereto and minus all losses, expenses, distributions and transfers chargeable thereto, comprised of: the Participants Catch-up Contributions to this Plan. The Catch-up Account is subject to all of the withdrawal and distribution restrictions and requirements of the Plan applicable to the Pre-Tax Account. In this regard, any withdrawal or distribution from the Catch-up Account must be made following, or contemporaneously with, the exhaustion of withdrawable amounts held in the Pre-Tax Account.
2.12 Catch-up Contributions . The words Catch-up Contributions means contributions made on behalf of a Participant under the terms of Section 4.14, subject to the provisions of Code Section 414(v) and the Treasury regulations promulgated thereunder.
2.13 Code . The word Code means the Internal Revenue Code of 1986, as amended from time to time, and any subsequent Internal Revenue Code. References to any section of the Code shall be deemed to include similar sections of the Code as renumbered or amended.
2.14 Company . The word Company means Magellan Midstream Holdings, L.P.
2.15 Compensation . The word Compensation means the first $200,000 (or such higher amount as may be permitted under Section 401(a)(17) of the Code) of salary, wages, or in the case of a Self-Employed Individual, Earned Income, paid to an Eligible Employee by an Employer during the Plan Year while the Eligible Employee is entitled to be an Active Participant pursuant to Section 3.1, including Pre-Tax Contributions, After-Tax Contributions, Catch-up Contributions, base pay, short term disability paid by an Employer, bonuses (unless specifically excluded under a written bonus arrangement), if any, when paid, overtime, commissions, and salary reduction amounts contributed to any cafeteria plan, flexible benefit plan, or qualified transportation plan (Code Section 132(f)) established by an Employer, but excluding severance pay, cost of living pay, housing pay, relocation pay (including mortgage interest differential), other taxable fringe benefits, awards under the Magellan Long-Term Incentive Plan or other similar plan, and other extraordinary compensation, all as determined by the Benefits Committee in its sole and absolute discretion.
The annual compensation of each Participant taken into account in determining benefit accruals in any Plan Year shall not exceed $200,000. Annual compensation means compensation during the Plan Year. The $200,000 limit on annual compensation shall be adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the Plan Year that begins with such calendar year.
3
2.16 Computation Period . The words Computation Period means the calendar year.
2.17 Contribution Dollar Limit . The words Contribution Dollar Limit means the annual limit imposed on each Participant pursuant to Section 402(g) of the Code (as indexed pursuant to Sections 402(g)(5) and 415(d) of the Code, provided that no such adjustment will be taken into account hereunder before the Plan Year in which it becomes effective).
2.18 Disability . The word Disability means the presence of a permanent and total physical or mental condition that satisfies the initial requirements for disability payments under the Employer long-term disability plan that covers the Participant. If the Participant is not covered by an Employer maintained long-term disability plan, Disability shall have the same meaning as defined under the Social Security Act. A Participants Accrued Benefit shall become fully vested in the event he incurs a Disability.
2.19 Earned Income . The words Earned Income means the net earnings from self-employment in a trade or business with respect to which the Plan is established by the Employer for which personal services of the individual are a material income-producing factor regardless of the manner in which such earnings are reported. Net earnings will be determined without regard to items not included in gross income and the deductions allocable to such items. Net earnings are reduced by contributions by the Employer to a qualified plan to the extent deductible under Section 404 of the Code. Net earnings shall be determined with regard to the deduction allowed to the Employer by Section 164(f) of the Code for taxable years beginning after December 31, 1989.
2.20 Effective Date . The words Effective Date means January 1, 2004, which is the effective date of this Plan.
2.21 Eligible Employee . The words Eligible Employee means any Employee of an Employer, including an Employee on an Authorized Leave of Absence, but excluding:
(a) a Leased Employee;
(b) an Employee who is a member of a collective bargaining unit, unless the collective bargaining agreement covering such unit with the Employer expressly requires that persons covered by such agreement participate in this Plan;
(c) a nonresident alien with no U.S. source income;
(d) a person in a class of employees specifically excluded from participating by the document of adoption of a Participating Company; and
(e) any individual retained by an Employer directly or through an agency or other party to perform services for an Employer in the capacity of a fee-for-service worker or independent contractor or any similar capacity including, without limitation, any such individual employed by temporary help firms, technical help firms, staffing firms, employee leasing firms, professional employer organizations or other staffing firms, regardless of any subsequent reclassification or determination of such person to be a common law employee of the Employer.
4
2.22 Employee . The word Employee means any individual who is (i) employed as a common law employee by an Employer or an Affiliate, or (ii) a Self-Employed Individual.
2.23 Employee Contribution Account . The words Employee Contribution Account means the aggregate of, as applicable, a Participants interest in his After-Tax Account, Pre-Tax Account, Catch-up Account, and Rollover Contribution Account.
2.24 Employee Contributions . The words Employee Contributions means a Participants Pre-Tax Contributions, Catch-up Contributions, Rollover Contributions and After-Tax Contributions.
2.25 Employer . The word Employer means the Company and any Affiliate which has become a party to this Plan.
2.26 Employer Contributions . The words Employer Contributions means the payments made from time to time by an Employer to the Trustee designated as Employer Salary Deferral Contributions, Employer Matching Contributions, or Employer Discretionary Contributions.
2.27 Employer Contribution Account . The words Employer Contribution Account means, the aggregate of, as applicable, a Participants Employer Matching Contribution Account, Employer Discretionary Contribution Account, and Employer Salary Deferral Contribution Account.
2.28 Employer Matching Contribution Account . The words Employer Matching Contribution Account means a subaccount plus income and gains thereto and minus all losses, expenses, and distributions chargeable thereto, comprised of: Employer Matching Contributions allocated with respect to Compensation paid to a Participant on or after the Effective Date.
2.29 Employer Matching Contributions . The words Employer Matching Contributions means the payments made from time to time by an Employer to the Trustee designated as contributions to be credited to the Employer Matching Contribution Account of each Participant for whom such Employer contributes to the Plan in accordance with Section 5.1.
2.30 Employer Discretionary Contribution Account . The words Employer Discretionary Contribution Account means a subaccount, plus all income and gains credited thereto, and minus all losses, expenses and distributions chargeable thereto, comprised of: Employer Discretionary Contributions allocated to a Participant.
2.31 Employer Discretionary Contributions . The words Employer Discretionary Contributions means the payments made from time to time by an Employer to the Trustee designated as contributions to be credited to the Employer Discretionary Contribution Account of each Participant for whom such Employer contributes to the Plan in accordance with Section 5.2.
5
2.32 Employer Salary Deferral Contribution Account . The words Employer Salary Deferral Contribution Account means a subaccount, plus all income and gains credited thereto, and minus all losses, expenses and distributions chargeable thereto, comprised of Employer Salary Deferral Contributions allocated to a Participant.
2.33 Employer Salary Deferral Contributions . The words Employer Salary Deferral Contributions means the payments made from time to time by an Employer to the Trustee in accordance with Section 4.9 or 4.10 to satisfy the nondiscrimination tests set forth in Article IV or in accordance with Section 5.3 as discretionary contributions. All such payments shall be allocated to a subaccount of the Employer Contribution Account maintained for the Participant on whose behalf any such payment is made. Notwithstanding any other provision of the Plan, no amount held in such subaccount maintained on behalf of any Participant may be withdrawn prior to the earlier of such Participants Termination of Employment or reaching 59 1 / 2 .
2.34 ERISA . The acronym ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
2.35 Forfeiture . The word Forfeiture means the portion of a Participants Accrued Benefit which is forfeited pursuant to the terms of the Plan.
2.36 414(s) Compensation . The words 414(s) Compensation means the first $200,000 (or such other amount as may be permitted under Section 401(a)(17) of the Code) of an Employees compensation within the meaning of Code Section 415(c)(3) subject to the following adjustments, if the Benefits Committee determines, in its discretion, to make such adjustments for a Plan Year. The Benefits Committee may elect to exclude all of the following items for a Plan Year, namely, elective contributions that are made by an Employer on behalf of its employees that are not includable in gross income under Code Section 125, 132(f)(4), 402(e)(3), 402(h) and 403(b). In addition, the Benefits Committee may make such further adjustments as are permitted under applicable regulations or rulings issued by the Internal Revenue Service.
2.37 Highly Compensated Employee . The words Highly Compensated Employee means, applying the provisions of Subsections (a) and (b) below, an Employee performing services for an Employer or an Affiliate during the current Plan Year who:
(a) during either the current Plan Year, or the immediately preceding Plan Year was a 5% owner of an Employer or an Affiliate; or (2) for the immediately preceding Plan Year received 414(s) Compensation from an Employer or an Affiliate in excess of $90,000 (as adjusted pursuant to Code Section 414(q) from time to time).
(b) The determination of who is a Highly Compensated Employee, including the number of Employees treated as excluded shall be made in accordance with Code Section 414(q) and the regulations or other guidance thereunder.
2.38 Hour of Service . The words Hours of Service means:
(a) each hour for which the Employee is paid, or entitled to payment, directly or indirectly, from an Employer or an Affiliate; provided, however, if records of such actual hours are not maintained for an Employee, such Employee shall be credited with 190 Hours of Service for each month in which the Employee is paid, or entitled to payment, with respect to one Hour of Service. The term shall include service of a Self-Employed Individual with the Employer;
6
(b) each hour for which back pay, irrespective of mitigation of damages, is awarded to the Employee or agreed to by the Employer or an Affiliate; and
(c) each hour an Employee is paid or entitled to payment by an Employer or an Affiliate on account of a period of time during which no duties are performed due vacation, holiday, illness, incapacity (including disability), lay-off, jury duty, military duty or leave of absence. An Hour of Service for which an Employee is directly or indirectly paid or entitled to payment on account of a period during which the Employee performed no duties shall not be credited to the Employee, if such payment is made or due under a plan maintained solely for the purpose of complying with any applicable workers compensation, disability insurance, or unemployment compensation law. Hours of Service also shall not be credited for a payment which solely reimburses the Employee for medical or medically related expenses incurred by the Employee. Not more than 501 Hours of Service shall be credited under this Subsection (c) to the Employee on account of any single continuous period during which the Employee performs no duties (whether or not such period occurs in a single Computation Period). For purposes of this Subsection (c), a payment shall be deemed to be made by or due from an Employer regardless of whether such payment is made by or due from an Employer directly, or indirectly through, among others, a trust fund, or insurer, to which an Employer contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer or other entity are for the benefit of particular employees or are on behalf of a group of employees in the aggregate.
(d) Solely for purposes of determining whether an Employee has incurred a One Year Break-in-Service, an Employee who is not otherwise credited with an Hour of Service under Subsection (a), (b) or (c), above, shall be credited with an Hour of Service for each additional hour which is part of an Employees customary work week with an Employer or an Affiliate during which the Employee is on an unpaid Authorized Leave of Absence, provided the Employee resumes employment with an Employer or an Affiliate upon the expiration of such Authorized Leave of Absence. For purposes of this Subsection (d), an Employees customary work week will consist of five, 8-hour days.
(e) Solely for purposes of determining whether a One Year Break-in-Service has occurred for purposes of determining vesting, an Employee who is absent from work beginning on or after January 1, 1985 for maternity or paternity reasons and who is not otherwise credited with an Hour of Service under Subsections (a), (b), (c) or (d), above, shall receive credit for the Hours of Service for which he would have been regularly scheduled had the Employee performed duties for an Employer or an Affiliate during such absence, or in the absence of a regularly scheduled number of hours, 40 hours per week (or eight hours per day). For purposes of such determination, an absence from work for maternity or paternity reasons means an absence (i) by reason of the pregnancy of the Employee, (ii) by reason of the birth of a child of such Employee, (iii) by reason of the placement of a child with the Employee in connection with the adoption of such child by the Employee, or (iv) for purposes of caring for such child for a period beginning immediately following such birth or placement. Hours of Service credited for purposes of such determination shall be credited in the Computation Period in which such
7
absence begins, if necessary to prevent a One Year Break-in-Service in such period, or, in all other cases, in the next following Computation Period. In no event will more than 501 Hours of Service be credited for any single continuous period of time during which the person did not or would not have performed duties. The Benefits Committee may, in its discretion, require an Employee who is absent from work for maternity or paternity reasons to furnish information to the Benefits Committee to establish that the Employees absence from work is for maternity or paternity reasons and the number of days for which there was such an absence. Each Employer reserves the right to terminate the employment of any Employee who is absent from work without authorization, without regard to whether such Employee is entitled to be credited for Hours of Service pursuant to this Subsection.
(f) With respect to an Employee whose employment is transferred from Williams and its affiliates to the Company and its affiliates on October 1, 2003 each hour which was credited to such individual under the Williams Plan as of the Employees transfer date.
(g) With respect to an Employee whose employment is transferred from Williams and its affiliates to the Company and its affiliates on or after January 1, 2004 but before January 1, 2005 each hour which was credited to such individual under the Williams Plan as of the Employees transfer date.
(h) The same Hours of Service shall not be credited more than once under any provision of this definition of Hour of Service. The determination of Hours of Service for reasons other than the performance of duties shall be made in accordance with the provisions of Labor Department Regulations, 29 C.F.R. §2530.200b-2(b), and Hours of Service shall be credited to Computation Periods in accordance with the provisions of Labor Department Regulations, 29 C.F.R. §2530.200b-2(c).
2.39 Investment Fund . The words Investment Fund means one or more or all of the funds listed from time to time on Appendix I.
2.40 Leased Employee . The words Leased Employee means an individual who is not in the employ of an Employer or an Affiliate and who, pursuant to an agreement between an Employer or an Affiliate and any other person (leasing organization), provides services to such Employer or Affiliate and has provided services to an Employer or an Affiliate on a substantially full-time basis for a period of at least one year, with such services being performed under the primary direction or control of such Employer or Affiliate; provided, however, if such individuals constitute less than twenty percent of the non-highly compensated workforce (within the meaning of Code Section 414(n)(5)(C)(ii)) of the Employers or their Affiliates, such an individual shall not be included in such meaning if a leasing organization covers such an individual in a money purchase pension plan which provides immediate participation, full and immediate vesting and a non-integrated contribution formula equal to at least ten percent of such individuals annual compensation (as defined in Code Section 415(c)(3)), increased, prior to January 1, 1998, by amounts contributed pursuant to a salary reduction agreement which are excluded from such individuals gross income under Code Sections 125, 402(e)(3), 402(h)(1)(B) or 403(b)); and provided further, if such individual shall be deemed to be a Leased Employee of an Employer or an Affiliate, any contributions or benefits provided by such leasing organization which are attributable to services of such individual performed for an Employer or an Affiliate shall be treated as provided by such Employer or Affiliate.
8
2.41 Normal Retirement Date . The words Normal Retirement Date means the date on which a Participant attains (or would have attained if he had lived) age 65. The Accrued Benefit of a Participant who is an Employee on the date he attains age 65 shall become nonforfeitable on and after such date.
2.42 Non-Highly Compensated Employee . The words Non-Highly Compensated Employee means an Employee of an Employer or an Affiliate who is not a Highly Compensated Employee in the applicable period.
2.43 One Year Break-in-Service . The words One Year Break-in-Service means a Computation Period within which an Employee completes not more than 500 Hours of Service.
2.44 Participant . The word Participant means an Eligible Employee participating in the Plan as provided in Article III.
2.45 Pension Plan . The words Pension Plan means any qualified defined benefit plan maintained by an Employer in which the Participant participates.
2.46 Plan . The word Plan means the Magellan 401(k) Plan, as set forth herein and hereafter amended from time to time.
2.47 Plan Year . The words Plan Year means a 12-consecutive month period commencing on each January 1.
2.48 Pre-Tax Account . The words Pre-Tax Account means a subaccount, plus income and gains credited thereto and minus all losses, expenses and distributions chargeable thereto, comprised of a Participants Pre-Tax Contributions under this Plan.
2.49 Pre-Tax Contributions . The words Pre-Tax Contributions means contributions made on behalf of a Participant under the terms of Section 4.8.
2.50 Qualified Domestic Relations Order . The words Qualified Domestic Relations Order has the meaning set forth in Code Section 414(p).
2.51 Rollover Contributions . The words Rollover Contributions means contributions made by a Participant under the terms of Section 4.13.
2.52 Rollover Contribution Account . The words Rollover Contribution Account means a subaccount, plus income and gains credited thereto and minus all losses, expenses and distributions chargeable thereto, comprised of: the Participants Rollover Contributions to this Plan.
2.53 Self-Employed Individual . The words Self-Employed Individual shall mean a partner who is an executive officer of the Employer and who has Earned Income for the taxable year from the trade or business for which the Plan is adopted and established; and, such definition shall also include an individual who would have had Earned Income but for the fact that the trade or business had no net profits for the taxable year.
9
2.54 Termination of Employment . The words Termination of Employment means ceasing to be an Employee.
2.55 Trust . The word Trust means the legal entity resulting from the Trust Agreement (and any amendments thereto) between the Company and the Trustee, by which Employer Contributions and Employee Contributions shall be received, held, invested and distributed to or for the benefit of the Participants and Beneficiaries.
2.56 Trust Agreement . The words Trust Agreement means the agreement between the Company and the Trustee, as amended from time to time.
2.57 Trust Fund . The words Trust Fund means all property, real or personal, received or held by the Trustee, plus all income and gains and minus all losses, expenses, and distributions chargeable thereto.
2.58 Trustee . The word Trustee means any corporation, national banking association with trust powers, individual or individuals who shall accept the appointment as Trustee to execute the duties of the Trustee as specifically set forth in the Trust Agreement.
2.59 Valuation Date . The words Valuation Date means each day of the Plan Year on which Investment Funds are valued, as determined by the Benefits Committee in its sole discretion.
2.60 Williams . The word Williams means The Williams Companies, Inc.
2.61 Williams Plan . The words Williams Plan means The Williams Investment Plus Plan.
2.62 Year(s) of Service . The words Year(s) of Service means a Computation Period within which an Employee completes at least 1,000 Hours of Service and includes the sum of:
(a) with respect to an individual who becomes an Employee pursuant to the purchase agreement with Williams, the Employees Years of Service credited under the Williams Plan as of his employment transfer date; plus
(b) each Year of Service earned after the Effective Date, provided that no Year of Service shall be earned for 2003 if the service credited under clause (a) above includes credit for a Year of Service with respect to 2003; plus
(c) any service designated as Plan service by the Benefits Committee in connection with an acquisition; plus
(d) any service with an Employer or an Affiliate as a Leased Employee, if such service would have constituted a Year of Service under the applicable provisions of this Plan, if the Leased Employee had been a common law employee of an Employer or Affiliate.
10
ARTICLE III.
PARTICIPATION
3.1 Entitlement to Participation . Any Employee shall be entitled to become a Participant as soon as administratively feasible following the date he becomes (or again becomes) an Eligible Employee.
3.2 Duration of Participation . An Eligible Employee who is entitled to become a Participant under Section 3.1 shall become an Active Participant as of the date he commences to make Employee Contributions (excluding Catch-up Contributions and Rollover Contributions) to this Plan in accordance with Section 4.2. By electing to make such contributions, an Employee agrees to be bound by the terms and conditions of this Plan. Participation as an Active Participant shall continue during any period in which an Eligible Employee makes Employee Contributions (excluding Catch-up Contributions and Rollover Contributions) to this Plan. A person shall continue as a Participant until the entire Accrued Benefit of such person has been distributed and/or forfeited pursuant to the terms of this Plan.
3.3 Correction for Erroneous Inclusion of Employee . If in any Plan Year, any Employee who should be omitted as a Participant is erroneously included and discovery of such inclusion is not made until after a contribution by the Employer and/or Employee has been made and allocated, any erroneous Pre-Tax Contributions, After-Tax Contributions, Catch-up Contributions, and attributable earnings thereon will be returned to the Employee as soon as practicable after the discovery of the error. Any Employer Matching Contributions, Employer Discretionary Contributions, and attributable earnings (or loss) relating to such error shall immediately become a Forfeiture.
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ARTICLE IV.
EMPLOYEE CONTRIBUTIONS
4.1 Requirement of Employee Contributions . Except as required by the provisions set forth in Article XI or as provided by Section 5.2, an Eligible Employee shall not be entitled to an allocation of Employer Matching Contributions for any period of time during which, or based upon any Compensation from which, he does not make Employee Contributions (excluding Catch-up Contributions and Rollover Contributions) to this Plan. Employee Contributions may not be made-up by any person, unless permitted by the Benefits Committee.
4.2 Amount of Employee Contributions . To satisfy the requirements of Section 4.1 and to become an Active Participant, an Eligible Employee, who has satisfied the participation requirements of Section 3.1, may elect in the manner described in Section 4.4 to contribute to this Plan during each pay period by: (i) payroll salary reduction in the form of Pre-Tax Contributions any whole percentage from 1% through 30% (or such other percentage as may be established from time to time by the Benefits Committee for all Eligible Employees or such lower percentage as may be established only for Highly Compensated Employees) of his Compensation for such pay period, and (ii) by payroll deduction or such other method approved by the Benefits Committee in the form of After-Tax Contributions any whole percentage from 1% through 30% (or such other percentage as may be established from time to time by the Benefits Committee for all Eligible Employees or such lower percentage as may be established only for Highly Compensated Employees) of his Compensation for such pay period; provided, the total After-Tax Contributions when added to Pre-Tax Contributions may never exceed 30% of his Compensation for such pay period; if exceeded, the Participants After-Tax Contributions shall be reduced as necessary. If the limitation of Section 4.3 prevents further Pre-Tax Contributions on behalf of a Participant for a Plan Year, his election of Pre-Tax Contributions shall be treated as an election of After-Tax Contributions for the remainder of such Plan Year.
4.3 Maximum Amount of Pre-Tax Contributions . The aggregate Pre-Tax Contributions made on behalf of each Participant under the Plan for any Plan Year will not exceed:
(a) the Contribution Dollar Limit, reduced by:
(b) the sum of any of the following amounts that were contributed on behalf of the Participant for the Plan Year under a plan, contract, or arrangement other than this Plan:
(1) any employer contribution under a qualified cash or deferred arrangement (as defined in Section 401(k) of the Code) to the extent not includable in the Participants gross income for the taxable year under Code Section 402(e)(3) (determined without regard to Code Section 402(g));
(2) any employer contribution to the extent not includable in the Participants gross income for the taxable year under Code Section 402(h)(1)(B) (determined without regard to Code Section 402(g));
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(3) any employer contribution to purchase an annuity contract under Section 403(b) of the Code under a salary reduction agreement (within the meaning of Code Section 3121(a)(5)(D)); and
(4) any elective employer contribution under Code Section 408(p)(2)(A)(i);
provided that no contribution described in this Subsection (b) will be taken into account for the purpose of reducing the dollar limit in Subsection (a), above, if the plan, contract, or arrangement is not maintained by the Company or an Affiliate unless the Participant has filed a notice with the Benefits Committee not later than March 15 of the next Plan Year regarding such contribution. In the event that the Pre-Tax Contributions to the Plan for any Participant exceed the limitations described above, the Benefits Committee shall return, not later than the first April 15 following the close of the taxable year, the Pre-Tax Contribution in excess of the limitations described above, together with any income allocable thereto, to the affected Participant. Any Employer Matching Contributions and income allocable thereto which are attributable to excess Pre-Tax Contributions shall be deemed a Forfeiture.
4.4 Manner of Electing . To satisfy the requirements of Section 4.1, an Eligible Employee shall provide all necessary proper instructions, voice or otherwise, required by the Trustee, in its sole discretion, to enroll in the Plan, including the authorization of the Employer, to deduct from or reduce the Employees Compensation through payroll deduction or payroll salary reduction by an amount equal to the product of (i) the contribution percentage selected by the Employee multiplied by (ii) the Employees Compensation for the applicable payroll periods. If the Benefits Committee authorizes other methods of making Employee Contributions to satisfy the requirements of Section 4.1, an Eligible Employee shall provide to the Benefits Committee or the Trustee proper instructions, voice or otherwise, authorized by the Benefits Committee for that purpose.
4.5 Change of Election . Subject to the temporary suspensions for withdrawals under Section 8.4 and the adjustment provisions of Sections 5.8 and 4.9 through 4.12, a contribution percentage selected by the Participant shall continue in effect, notwithstanding any change in his Compensation, until the earliest of the date (1) his election to change his contribution percentage is effective, or (2) he ceases to be an Eligible Employee.
4.6 Effective Date of Election . A contribution percentage election or change of such election made by an Eligible Employee shall be effective as soon as administratively feasible after proper instructions, voice or otherwise, are given by the Eligible Employee to the Trustee.
4.7 Deposit of Employee Contribution . All Employee Contributions for any payroll period shall be delivered to the Trustee as soon as practicable and shall be held for investment by the Trustee under the Trust Agreement in accordance with the Participants elections under Section 6.1. An After-Tax Account and a Pre-Tax Account shall be established on behalf of each Participant to record the amount of After-Tax Contributions and Pre-Tax Contributions respectively made by such Participant to the Plan. Income and gains earned on the Participants Employee Contribution Accounts shall be credited thereto and losses, expenses and distributions chargeable to the Participants Employee Contribution Accounts shall be deducted therefrom.
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4.8 Pre-Tax Contributions . Subject to the limitations of Sections 4.3, 5.8 and 4.9 through 4.12, Pre-Tax Contributions for a Participant shall consist of the dollar amount of Employee Contributions for a particular year or a particular period of time that result from a Participants electing to have some or all of his Employer Contributions made by his Employer in the form of a pre-tax salary reduction. Each Participant may elect to have his Compensation reduced by a contribution percentage designated by him under Section 4.4 for the balance of the calendar year subsequent to such election. All such elections may be made to be effective on the date of becoming eligible for this Plan or on a later date. The contribution percentage of a Participant can be changed pursuant to Section 4.5 or 4.9.
4.9 Actual Deferral Percentage Test . The Plan will satisfy:
(a) the actual deferral percentage test set forth in Code Section 401(k)(3) and Treasury Regulation §1.401(k)-1(b), the provisions of which (and any subsequent Internal Revenue Service guidance issued thereunder) are incorporated herein by reference, each as modified by subsection (b), below. In accordance with Code Section 401(k)(3) and Treasury Regulation §1.401(k)-1(b), as modified by Subsection (b), below, the actual deferral percentage for Highly Compensated Employees for any Plan Year will not exceed the greater of:
(1) the actual deferral percentage for Non-Highly Compensated Employees for the current Plan Year multiplied by 1.25, or
(2) the lesser of (i) the actual deferral percentage for Non-Highly Compensated Employees for the current Plan Year multiplied by 2 and (ii) the actual deferral percentage for Non-Highly Compensated Employees for the current Plan Year plus 2%.
(b) In performing the actual deferral percentage test described in Subsection (a), above, the following special rules will apply:
(1) the deferral percentages of Participants who are covered by a collective bargaining agreement between employee representatives and an Employer will be disaggregated from the deferral percentages of other Participants and the provisions of this Section 4.9 will be applied separately with respect to each group.
(2) Employees who have not become eligible to become Participants will be disregarded in applying this Section 4.9.
(3) The Benefits Committee may permissively aggregate the Plan with other plans to the extent permitted under Treasury Regulation §1.401(k)-1; and
(4) The Benefits Committee may permissively disaggregate the deferral percentages of Participants under the age of 21 or with less than one Year of Service and apply the provisions of this Section separately with respect to such Participants and the remaining Participants as permitted under applicable Treasury Regulations.
(c) In the event the actual deferral percentage test for a Plan Year is not satisfied, (1) the Employers may make qualified nonelective Employer Salary Deferral Contributions allocated to Participants who are Nonhighly Compensated Employees included in
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such tests beginning with the lowest paid Participant in an amount equal to the lesser of (a) the maximum amount contributable under the Plan or (b) the amount necessary to satisfy the actual deferral percentage test, and then to the next lowest paid Participant with the contribution repeating until the Employer Salary Deferral Contribution is fully allocated, (2) the Benefits Committee may distribute the Excess Elective Contributions of Highly Compensated Employees in accordance with Section 4.11, or (3) a combination of the foregoing remedies may be applied in order that one of the foregoing tests is met for such Plan Year in accordance with the requirements of Code Section 401(k) and regulations promulgated thereunder. In all events, one of the foregoing tests shall be met with respect to each Plan Year.
In the event that the Benefits Committee, at its sole discretion, estimates that the Pre-Tax Contributions which will be made to the Plan with respect to a Plan Year will not satisfy any of the tests set forth above, the Benefits Committee may reduce or adjust, at any time or times before the close of the Plan Year, the maximum percentage of Compensation that all Highly Compensated Employees shall be permitted to elect to contribute as Pre-Tax Contributions for the remainder of the Plan Year to meet one of the tests set forth above.
4.10 Actual Contribution Percentage Test . The Plan will satisfy:
(a) the actual contribution percentage test set forth in Code Section 401(m)(2) and Treasury Regulation §1.401(m)-1(b), the provisions of which (and any subsequent Internal Revenue Service guidance issued thereunder) are incorporated herein by reference, each as modified by Subsection (b) below. In accordance with Code Section 401(m)(2) and Treasury Regulation §1.401(m)-1(b), as modified by Subsection (b) below, the actual contribution percentage for Highly Compensated Employees for any Plan Year will not exceed the greater of:
(1) the actual contribution percentage for Non-Highly Compensated Employees for the current Plan Year multiplied by 1.25, or
(2) the lesser of (i) the actual contribution percentage for Non-Highly Compensated Employees for the current Plan Year multiplied by 2 and (ii) the actual contribution percentage for Non-Highly Compensated Employees for the current Plan Year plus 2%.
(b) In performing the actual contribution percentage test described in Subsection (a), above, the following special rules will apply:
(1) the limit imposed by the actual contribution percentage test will apply only to Highly Compensated Employees and Non-Highly Compensated Employees who are not covered by a collective bargaining agreement between employee representatives and an Employer;
(2) Employees who have not become eligible to become Participants will be disregarded in applying this Section 4.10.
(3) The Administrator may permissively aggregate the Plan with other plans to the extent permitted under Treasury Regulation §1.401(m)-1.
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(4) The Benefits Committee may permissively disaggregate the deferral percentages of Participants under the age of 21 or with less than one Year of Service and apply the provisions of this section separately with respect to such Participants and the remaining Participants as permitted under applicable Treasury Regulations.
(5) Notwithstanding anything in the Plan to the contrary, the multiple use test described in Treas. Reg. § 1.401(m)-2 shall not apply.
(c) In the event the actual contribution percentage test for a Plan Year is not satisfied, (1) the Employers may make qualified nonelective Employer Salary Deferral Contributions allocated to Participants who are those Nonhighly Compensated Employees included in such tests beginning with the lowest paid Participant in an amount equal to the lesser of (a) the maximum amount contributable under the Plan or (b) the amount necessary to satisfy the actual contribution percentage test, and then to the next lowest paid Participant with the contribution repeating until the Employer Salary Deferral Contribution is fully allocated,, (2) the Benefits Committee may distribute Excess Aggregate Contributions in accordance with Section 4.12, or (3) a combination of the foregoing remedies may be applied in order that one of the foregoing tests is met for such Plan Year in accordance with the requirements of Code Section 401(m) and regulations promulgated thereunder. In all events, foregoing tests set forth above shall be met with respect to each Plan Year.
In the event that the Benefits Committee, at its sole discretion, estimates that the Employer Matching Contributions and After-Tax Contributions made to the Plan with respect to a Plan Year will not satisfy any of the tests set forth above, the Benefits Committee may reduce or adjust at any time or times before the close of the Plan Year the maximum percentage of Compensation that all Highly Compensated Employees shall be permitted to receive as Employer Matching Contributions or After-Tax Contributions for the remainder of the Plan Year in order to attempt to meet one of the tests set forth above.
4.11 Excess Elective Contributions .
(a) If one of the tests described in Section 4.9 is not satisfied after taking into account any Employee Salary Deferral Contributions, if any, made or to be made (before the end of the next following Plan Year), as described in Section 4.9 with respect to a Plan Year, the Benefits Committee shall determine the excess Pre-Tax Contributions (Excess Elective Contributions) of each Highly Compensated Employee for such Plan Year by applying the method described in applicable regulations.
(b) The Benefits Committee may adjust the contributions of each affected Highly Compensated Employee by causing Excess Elective Contributions to be (i) recharacterized as Catch-up Contributions pursuant to the provisions of Section 4.15(b) to the maximum extent possible, and (ii) distributed to the extent of any Excess Elective Contributions remaining after such recharacterization. Employer Matching Contributions and income allocable thereto which are attributable to Excess Elective Contributions which have been recharacterized as Catch-up Contributions shall be deemed a Forfeiture. Such distributions shall be distributed to such Highly Compensated Employees in accordance with the provisions of Code Section 401(k)(8)(C) on the basis of the contribution amounts by, or on behalf of, each such person taken
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into account in determining such persons actual deferral percentage. Any such distribution shall be completed no later than the first March 15 following the end of such Plan Year, if the Benefits Committee desires to avoid the penalty tax under Code Section 4979, but in no event later than the end of the first twelve-month period following the end of such Plan Year. The amount of Excess Elective Contributions to be distributed shall be reduced by any excess deferrals previously distributed with respect to the Plan Year in accordance with Section 4.3. Income allocable to distributed Excess Elective Contributions with respect to a Plan Year shall be distributed therewith and shall include income for such Plan Year but not for the gap period between the end of such Plan Year and the date of distribution of such Excess Elective Contributions. In addition, any Employer Matching Contributions and income allocable thereto which are attributable to Excess Elective Contributions shall be deemed a Forfeiture.
4.12 Excess Aggregate Contributions .
(a) If one of the tests described in Section 4.10 is not satisfied after taking into account any supplemental contributions allocated or to be allocated (before the end of the next following Plan Year) as described in Section 4.10(d) with respect to a Plan Year, the Benefits Committee shall determine the aggregate excess Employer Matching Contributions, After-Tax Contributions, and, if applicable, Pre-Tax Contributions and/or Employer Salary Deferral Contributions (Excess Aggregate Contributions) of each Highly Compensated Employee for such Plan Year by applying the method described in applicable regulations.
(b) The Benefits Committee shall cause distribution of Excess Aggregate Contributions and income allocable thereto in accordance with Treasury Regulations Sections 1.401(m)-1(e)(3), (4) and (6) to each affected Highly Compensated Employee no later than the first March 15 following the end of such Plan Year, if the Benefits Committee desires to avoid the penalty tax under Code Section 4979, but in no event later than the end of the first twelve-month period following the end of such Plan Year. Such distributions shall be distributed to such Highly Compensated Employees in accordance with the provisions of Code Section 401(m)(6)(C) on the basis of the contribution amounts by, or on behalf of, each such person taken into account in determining such persons contribution percentage. Income allocable to Excess Aggregate Contributions with respect to a Plan Year shall be distributed therewith and shall include income for such Plan Year but not for the gap period between the end of such Plan Year and the date of distribution of such Excess Aggregate Contributions. Excess Aggregate Contributions shall be distributed by contribution amounts in the following order to the extent necessary to distribute a Participants Excess Aggregate Contributions for a Plan Year: (i) unmatched After-Tax Contributions; (ii) unmatched Pre-Tax Contributions, if included in Excess Aggregate Contributions; (iii) matched After-Tax Contributions and Employer Matching Contributions in equal amounts; and (iv) if included in Excess Aggregate Contributions, matched Pre-Tax Contributions and Employer Matching Contributions in equal amounts. In the event the Participants Employer Matching Contribution Account is not fully-vested, any distribution of Employer Matching Contributions shall be accounted for by actual distribution of a portion of the total amount of such contribution included in Excess Aggregate Contributions determined by the Participants vested percentage at the end of such Plan Year and treating the balance of such contributions as a Forfeiture for such Plan Year as if on account of a distribution pursuant to Section 8.3.
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4.13 Requirements for Rollover Contributions . An Eligible Employee may make a Rollover Contribution to the Plan only in accordance with the provisions of this Section 4.13, and all such contributions shall be in the form of cash and may include Plan loans, if the rollover of such loans are permitted by the Benefits Committee in connection with an acquisition of stock or assets by an Employer. The Plan will accept a direct rollover of an eligible rollover distribution from a qualified plan described in Section 401(a) or 403(a) of the Code, including after-tax employee contributions. In addition, the Plan will accept a Participant contribution of an eligible rollover distribution from a qualified plan described in section 401(a) or 403(a) of the Code. The Plan will also accept a Participant rollover contribution of the portion of a distribution from an individual retirement account described in Section 408(a) of the Code that is eligible to be rolled over and would otherwise be includible in gross income. The Plan will also accept a rollover of a loan pursuant to the provisions of Section 12.2 herein if the loan rollover is made in connection with the purchase of the stock or assets of another entity by the Employer. The Benefits Committee shall determine in its discretion whether or not a loan rollover is in connection with the purchase of the stock or assets of another entity by the Employer provided that such determination shall be made in a reasonable and nondiscriminatory manner.
The Benefits Committee, in its discretion, shall determine in every instance whether the foregoing criteria have been met prior to acceptance of any such contribution. The Benefits Committee may request of the Eligible Employee any documents or evidence it deems necessary and may seek the advice of counsel to assist it in making such a determination. Rollover Contributions shall be paid to the Trustee in cash or such other form of payment as may be approved by the Benefits Committee in its discretion. An indirect Rollover Contribution shall be delivered to the Trustee as soon as practicable, but in no event later than 60 days after the amount thereof was received by the Eligible Employee. The Trustee shall invest such cash portion of the Rollover Contribution in accordance with the proper written instructions provided to the Trustee on the appropriate form as directed by the Eligible Employee. In general, an Eligible Employee shall be deemed to be a Participant with respect to his Rollover Contribution only to the extent necessary as determined by the Benefits Committee, prior to having become a Participant for all purposes in accordance with Section 3.1. In this regard, such Eligible Employee shall be permitted to make a loan under Article XII. The Benefits Committee or its delegate shall establish a Rollover Contribution Account to record the amount of the Rollover Contribution. The Rollover Contribution Account shall be fully vested at all times.
4.14 Catch-up Contributions . An Active Participant who (i) has attained, or will during the Plan Year attain, age 50 years and (ii) whose Pre-Tax Contributions for the Plan Year are expected either (a) to be less than the maximum contribution permitted by Code Section 402(g) due to the percentage limitation in Section 4.2 or (b) to equal the lesser of the (1) Section 4.2 percentage limitation or (2) dollar limitation of Code Section 402(g) may elect, in accordance with procedures established by the Benefits Committee, to reduce his Compensation for each pay period for which his election is in effect, and to have the amounts by which his Compensation is so reduced contributed on his behalf by his Employer as Catch-up Contributions under the Plan, as described in Code Section 414(v). The Catch-up Contributions made on behalf of an Active Participant shall be credited to his Catch-up Contribution Account.
All elections with respect to Catch-up Contributions shall be in such manner as provided by the Benefits Committee. Subject to the suspension described below and for withdrawals under
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Section 8.4 and to the recharacterization provisions of Section 4.15, a contribution percentage election selected by an eligible Participant shall continue in effect, notwithstanding any change in his Compensation, until the earlier of the date (1) his election to change his contribution percentage is effective, or (2) he ceases to be an Eligible Employee. In the event a Participants Catch-up Contributions in any Plan Year equal the applicable limitation under Code section 414(v) during such Plan Year, Catch-up Contributions on behalf of such Participant shall be suspended for the remainder of such Plan Year, but shall resume unchanged in the next following Plan Year.
4.15 Recharacterizations .
(a) Catch-up Contributions . In the event a Participants Pre-Tax Contributions for a Plan Year do not equal the maximum Pre-Tax Contributions that may be made under the Plan that Plan Year for any reason, his Catch-up Contributions for such Plan Year shall be recharacterized as Pre-Tax Contributions for all purposes to the extent necessary to increase his Pre-Tax Contributions to equal such maximum for such Plan Year.
(b) Excess Pre-Tax Contributions . In the event a Participant who is eligible to elect Catch-up Contributions is determined by the Benefits Committee to have Excess Elective Contributions for a Plan Year, then before causing a distribution of such Participants Excess Elective Contributions, the Benefits Committee may cause such Participants Pre-Tax Contributions to be recharacterized as Catch-up Contributions to the extent necessary to either (i) exhaust his Excess Elective Contributions, and/or (ii) increase his Catch-up Contributions to the applicable limit under Code Section 414(v) for the Plan Year.
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ARTICLE V.
EMPLOYER CONTRIBUTIONS AND ALLOCATIONS
5.1 Employer Matching Contributions . Subject to Section 5.8, each Employer shall contribute each pay period for Active Participants who are Employees of such Employer an amount in cash equal to the aggregate of the Employee Contributions other than Catch-up Contributions and Rollover Contributions, as hereinafter limited, made to this Plan by or on behalf of each such Employee during the applicable pay period; provided, however, Employer Matching Contributions shall be limited to 6% of the Participants Compensation for the applicable pay period.
Employer Matching Contributions determined under the preceding sentence shall be reduced by the amounts provided by Section 5.8(c) and by Forfeitures, as determined in accordance with Section 5.7 hereof. In no event shall an Employer contribute an amount for any Plan Year which will be greater than the maximum amount deductible from income by the Employer under the provisions of the Code for the Employers taxable year which ends with or within such Plan Year.
5.2 Employer Discretionary Contributions . Subject to Section 5.8, each Employer will contribute in cash such amounts, if any, the Board of Managers, in its sole discretion, may authorize and direct to be paid.
5.3 Employer Salary Deferral Contributions . Subject to Section 5.8, each Employer will contribute in cash such amounts, if any, the Board of Managers, in its sole discretion, may authorize and direct to be paid as a discretionary Employer Salary Deferral Contribution. Any such contribution shall be in such amount as to provide an allocation to the Employer Salary Deferral Account of each Eligible Participant in the same dollar amount. For purposes of this Section 5.3, Eligible Participant means a Participant designated as such by the Company pursuant to authority granted by the Board of Managers at the time a discretionary Employer Salary Deferral Contribution is authorized and directed. For any Plan Year, Eligible Participant means, as designated by the Company, either (a) a Participant as of the last day of such Plan Year, (b) a Participant who (i) as of the first and last day of such Plan Year is not an officer of any Employer or Affiliate, (ii) was an Eligible Employee or on an Authorized Leave of Absence with pay as of the first day of such Plan Year, and (iii) as of the last day of such Plan Year, is (A) an Eligible Employee in the active employ of an Employer, (B) an Eligible Employee on an Authorized Leave of Absence with pay, or (C) a former Eligible Employee having incurred a Termination of Employment during such Plan Year on account of death, Disability or retirement after becoming eligible to begin to receive early retirement benefits under the Pension Plan in which he participated. In all events, the group of Eligible Participants with respect to each discretionary Employer Salary Deferral Contribution shall meet the applicable nondiscrimination requirements of Code Section 401(a)(4) and the regulations promulgated thereunder.
5.4 Deposit and Investment of Employer Matching Contributions . All Employer Matching Contributions made to this Plan on behalf of Active Participants shall be delivered to the Trustee in the form of cash and allocated to the Employer Matching Contribution Accounts of the Active Participants as soon as practicable. All cash contributions delivered to the Trustee shall be invested by the Trustee in the same manner as the Participants matched employee contributions.
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5.5 Allocation of Employer Discretionary Contributions . As of the last day of each Plan Year, the amount of the Employer Discretionary Contributions authorized for such year, if any, shall be allocated to those Participants entitled to the same. A Participant who retires, dies or terminates employment due to Disability during such Plan Year shall share in such allocation on the basis of the Compensation he earns during such year prior to his retirement, Disability or death. All other Participants will share in the allocation only if they are in the active employ of the Employer or on an Authorized Leave of Absence on the last day of the Plan Year. Such allocation of Employer Discretionary Contributions shall be made according to the ratio that each such eligible Participants Compensation, bears to the total Compensation, paid to all eligible Participants during the Plan Year.
5.6 Determination and Amount of Employer Contributions . The Board of Managers shall determine the amount of any contribution to be made by each Employer hereunder. Such determination shall be binding on all Participants, the Trustee and the Employer. Under no circumstances shall any Participant or Beneficiary have any right to examine the books and records of any Employer.
5.7 Application of Forfeitures . All Forfeitures that are not applied in accordance with Sections 7.8, 8.3(d), or 8.11 or used to pay expenses of this Plan at the direction of the Benefits Committee shall be applied to reduce Employer Contributions otherwise required or authorized under the Plan.
5.8 Maximum Contributions .
(a) In addition to any other limitation set forth in the Plan and notwithstanding any other provision of the Plan, in no event will the annual additions allocated to a Participants Account under the Plan, together with the aggregate annual additions allocated to the Participants accounts under all other defined contribution plans required to be aggregated with the Plan under the provisions of Section 415 of the Code, exceed the maximum amount permitted under Section 415 of the Code, the provisions of which are incorporated herein by reference.
(b) If the limitations imposed by this Section 5.8 apply to a Participant who is entitled to annual additions or benefits under one or more tax-qualified plans with which the Plan is aggregated for purposes of Section 415 of the Code, the annual additions and benefits under such other plan or plans will be reduced first to the extent necessary, to prevent the Participants benefits and/or annual additions from exceeding the limitations imposed by this Section.
(c) Application of Limitations . If the Annual Additions for a Participant for any Plan Year exceed the limitation in Subsection (a) above, such excess (the Annual Excess) shall not be allocated to such Participants accounts but shall be treated in the following manner:
(1) After-Tax Contributions allocable to such Participant which have not been matched by Employer Matching Contributions and any earnings attributable thereto shall be reduced to the extent necessary to reduce the Annual Excess to zero;
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(2) If an Annual Excess remains, Pre-Tax Contributions allocable to such Participant which have not been matched by Employer Matching Contributions and any earnings attributable thereto shall be reduced to the extent necessary to reduce the Annual Excess to zero;
(3) If an Annual Excess remains, matched After-Tax Contributions and Employer Matching Contributions allocable to such Participant, together with any earnings attributable thereto, shall be reduced in equal amounts to the extent necessary to reduce the Annual Excess to zero; provided, however, a Participant may elect, with the consent of the Benefits Committee, to have the reduction hereunder apply first to Employer Matching Contributions and then to After-Tax Contributions;
(4) If an Annual Excess remains, Pre-Tax Contributions and Employer Matching Contributions allocable to such Participant, together with any earnings attributable thereto, shall be reduced in equal amounts to the extent necessary to reduce the Annual Excess to zero; provided, however, a Participant may elect, with the consent of the Benefits Committee, to have the reduction hereunder apply first to Employer Matching Contributions and then to Pre-Tax Contributions;
(5) If Annual Excess remains, Employer Non-matching Contributions allocable to such Participant shall be reduced or suspended to the extent necessary to reduce the Annual Excess to zero;
(6) If Annual Excess remains, Employer Salary Deferral Contributions and any earnings attributable hereto shall be reduced or suspended to the extent necessary to reduce the Annual Excess to zero;
(7) Any reduction in a Participants allocations of After-Tax Contributions and any earnings attributable thereto under Sections 5.8(c)(1) and (3) shall be either refunded to the Participant or suspended, as determined by the Benefits Committee in its discretion, and if suspended, utilized to reduce future After-Tax Contributions on behalf of such Participant for succeeding Plan Years;
(8) Any reduction in a Participants allocations of Pre-Tax Contributions and any earnings attributable thereto under Sections 5.8(c)(2) and (4) shall be suspended and utilized to reduce future Pre-Tax Contributions on behalf of such Participant for succeeding Plan Years;
(9) Any reduction in a Participants allocations of Employer Matching Contributions, Employer Non-Matching Contributions and any earnings attributable thereto under Sections 5.8(c)(3), (4), and (5) and in the Participants Employer Salary Deferral Contributions and any earnings attributable thereto under Section 5.8(c)(6) shall be separately suspended and utilized to reduce future Employer Matching Contributions, Employer Non-Matching Contributions and Employer Salary Deferral Contributions, respectively, on behalf of the Participant for succeeding Plan Years;
(10) In the event any amount attributable to Employer Contributions suspended under Section 5.8(c)(9) remains unallocated to such Participants Employer
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Contribution Account during a Plan Year following the Plan Year in which such Participant ceases to be a Participant, such amount shall be applied to reduce Employer Contributions and Employer Salary Deferral Contributions, respectively, for all Participants for such Plan Year and succeeding Plan Years, as necessary to reduce such amount to zero;
(11) Any suspended amounts attributable to Employee Contributions remaining as of such Participants Termination of Employment shall be returned to such Participant; and
(12) Any suspended amounts attributable to Employer Contributions remaining upon Plan termination shall be returned to the Employers and any suspended amounts attributable to Employee Contributions remaining upon Plan termination shall be returned to such Participant.
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ARTICLE VI.
INVESTMENT PROVISIONS
6.1 Investment of Future Employee Contributions .
(a) Amount of Investment Election . An Active Participant may direct the Trustee, by submission of proper instructions, voice or otherwise, in such form as the Trustee, in its discretion, may require from time to time, to invest his future Employee Contributions in one or more of the Plans Investment Funds. All such Employee Contributions and loan payments will be invested in the default fund provided in Appendix I unless the Active Participant designates the Investment Funds in which such contributions and loan payments are to be invested. If an Active Participant elects to invest his Employee Contributions in more than one Investment Fund, he must designate the percentage in whole multiples of 1%.
(b) Effective Date of Investment Election . An investment election hereunder (or a change of such election) with respect to future Employee Contributions and loan payments shall be effective as soon as administratively practicable after a Participant provides the proper instructions, voice or otherwise, required by the Trustee, in its discretion, provided such instructions are received by the Trustee no later than the date on which the Trustee receives the Employee Contributions or loan payments to be invested.
(c) Change of Investment Election . The investment election of a Participant shall continue in effect, notwithstanding any change in his Compensation, his contribution percentage or his status as an Active Participant, until the date a change of his investment election is effective.
6.2 Investment of Employee Contribution Account and Employer Contribution Account .
(a) Investment Transfers .
(1) Amount of Conversion Election . A Participant may direct the Trustee, by providing the Trustee with the proper instructions, voice or otherwise, required by the Trustee in its discretion, with respect to the investment of that portion of his Employee Contribution Account and Employer Contribution Account which is invested in one or more of the Investment Funds into one or more of the Plans other Investment Funds. If a Participant elects to invest such portion of his Employee Contribution Account and his Employer Contribution Account in more than one Investment Fund, he must designate in his proper instructions, voice or otherwise, either (i) the percentage in whole multiples of 1%, or (ii) the dollar amount in whole multiples of one dollar.
(2) Effective Date of Conversion Election . A conversion election transaction shall be effective as soon as practicable following the date on which a Participant provides the proper instructions, voice or otherwise, required by the Trustee, in its discretion.
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ARTICLE VII.
TRUST AGREEMENT AND TRUSTEE
7.1 Funding Instrument . The Company, at the direction of the Benefits Committee, may enter into one or more Trust Agreements to provide for the holding, investment and payment of Plan assets, or direct by execution of an Insurance Contract, that all or a specified portion of the Plans assets be held, invested and paid under such contract. The Trust Agreement, as from time to time amended, shall continue in force and shall be deemed to form a part of the Plan, and any and all rights or benefits which may accrue to any person under this Plan shall be subject to all the terms and provisions of the Trust Agreement.
7.2 Selection of Trustee . The Benefits Committee shall select, remove or replace a Trustee in accordance with the Trust Agreement. The subsequent resignation or removal of a Trustee and the appointment of a successor Trustee and the approval of its accounts shall all be accomplished in the manner provided in the Trust Agreement.
7.3 Trustees Duties . The powers, duties and responsibilities of a Trustee shall be as stated in the Trust Agreement. All contributions shall be paid into the Trust, and all benefits payable under this Plan shall be paid from the Trust.
7.4 Trust Expenses . Expenses of administering this Plan, including the fees and expenses of the Trustee, the Benefits Committee, and the Investment Managers, shall be paid from the Trust under the Plan in accordance with directions from the Benefits Committee unless such expenses are paid by an Employer. Brokerage fees, transfer taxes and other expenses incident to the purchase or sale of securities by the Trustee shall be deemed to be part of the cost of such securities, or deducted in computing the proceeds therefrom, as the case may be. Taxes, if any, on any assets held or income received by the Trustee shall be charged appropriately against the accounts of Participants as the Benefits Committee shall determine. Expenses related to a determination whether a domestic relations order meets the definition of a Qualified Domestic Relations Order may be charged appropriately against the Accounts of the Participant for whom the Qualified Domestic Relations Order is intended. Such expenses may be allocated to the Participants Accounts prior to division of the Accounts pursuant to the Order.
7.5 Trust Entity . The Trust under this Plan from its inception shall be a separate entity aside and apart from Employers or their assets. The Trust, and the corpus and income thereof, shall in no event and in no manner whatsoever be subject to the rights or claims of any creditor except with respect to the provisions of Section 7.13.
7.6 Accrued Benefit . An Employer Contribution Account, an Employee Contribution Account and such other accounts as are necessary under the Plan shall be established and maintained, as appropriate, for each Participant to record the value of his interest in the Trust Fund in accordance with Section 7.7. Adjustments to a Participants Accrued Benefit provided for by this Plan may be made, at the discretion of the Benefits Committee, on the relevant Valuation Date regardless of the date of actual entry or receipt by the Trustee of Employer Contributions or Employee Contributions or the actual date of payment of benefits under this Plan.
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7.7 Trust Income . As of each Valuation Date the net income and gains or losses of each Investment Fund shall be credited or charged to each Participants Employee Contribution Account and Employer Contribution Account and to any other account maintained in such Investment Fund by the Trustee in accordance with the unit, share, or cash method of accounting consistently followed and uniformly applied.
7.8 Correction of Error . In the event of an error in the adjustment of a Participants Accrued Benefit, the Benefits Committee, in its sole discretion, may correct such error by crediting or charging the adjustment required to make such correction to or against Forfeitures which occur in the Plan Year in which the correction is made.
7.9 Investment Options . The Trust Fund shall consist of the Investment Funds set forth on Appendix I, as amended from time to time.
7.10 Right of Employers to Trust Assets . Subject to the provisions of Section 5.7, the Employers shall have no right or claim of any nature in or to the Trust Fund, except the right to require the Trustee to hold, use, apply, and pay such assets in its possession in accordance with this Plan for the exclusive benefit of the Participants or their Beneficiaries and for defraying the reasonable expenses of administering this Plan and Trust; provided, that:
(a) if, and to the extent that, a deduction for an Employer Contribution under Code Section 404 is disallowed, Employer Contributions conditioned upon deductibility shall be returned to the appropriate Employer within one year after the disallowance of the deduction; and
(b) if, and to the extent that, an Employer Contribution is made through mistake of fact, such Employer Contribution shall be returned to the appropriate Employer within one year of the payment of the contribution.
(c) All Employer Contributions made hereunder are conditioned upon a deduction being allowed for such contributions under Code Section 404. The return of a Contribution to an Employer under Subsections (b) or (c) above must comply with each of the following requirements:
(1) The amount of such Employer Contribution which may be so returned shall not be greater than the excess of (i) the amount contributed over (ii) the amount that would have been contributed had there been no mistake in determining the deduction or had there been no mistake of fact, as the case may be;
(2) The amount of such Employer Contribution which may be so returned shall not be increased by earnings attributable to the investment or reinvestment of such Employer Contribution in the Trust, but shall be reduced by losses attributable to the investment or reinvestment of such Employer Contribution in the Trust; and
(3) The return of such Employer Contribution shall not reduce the balance of the Employer Contribution Account of any Participant to less than the balance which would have been credited to such Employer Contribution Account, if the returned Employer Contribution had never been contributed.
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7.11 Establishment and Deletion of Investment Funds . The Benefits Committee, in its discretion, may from time to time direct the Trustee to delete an Investment Fund, freeze an Investment Fund or establish a new Investment Fund in the Plan.
7.12 Self-directed Brokerage Fund . Each Participant shall be permitted to establish a self-directed account by completing the necessary forms provided by a brokerage firm selected by the Benefits Committee. After establishing his self-directed account, a Participant shall be permitted to transfer all or part of his Employee Contribution Account and his Employer Contribution Account to and from his self-directed account by providing the proper instructions, voice or otherwise, required by the Trustee, in its discretion. A Participant shall be permitted to transfer funds to and from his self-directed account on a daily basis by providing proper instructions, voice or otherwise, to the Trustee provided all such transfers are limited to the current cash balances in the Participant s Accounts.
All funds in the self-directed account will be valued daily and each Participant maintaining a self-directed account shall be charged a quarterly fee established by the Benefits Committee which is no more than the quarterly fee charged by the Trustee for each self-directed account. In addition, each Participant who purchases investments in his self-directed account shall be responsible for all brokerage commissions and other expenses associated with his investments.
No Participant shall be able to withdraw or borrow any monies under Section 8.4 and Section 12.2 of the Plan directly from a self-directed brokerage account. To receive a withdrawal of monies held in a self-directed brokerage account, the Participant must first transfer such monies to the money market fund or its equivalent under Trust.
The investments permitted under this Section 7.12 shall include: (a) stocks, common or preferred, which are traded over the New York, American or NASDAQ exchanges; (b) open-end or closed-end mutual funds managed by an investment company registered under the Investment Company Act of 1940; and (c) bonds, debentures, and any other fixed-income securities, including, but not limited to, certificates of deposit and collateralized mortgage obligations. Notwithstanding the foregoing, the following investments are specifically prohibited: (a) options of any nature, whether or not covered; (b) limited partnerships, general partnerships and master limited partnerships (including Magellan Midstream Partners L.P. units); (c) real estate investment trusts; (d) real estate; (e) art; (f) stamps and coins; (g) any investment which may produce unrelated business income to the Trust; (h) precious metals; (i) tax exempt securities (including mutual funds, municipal bonds and unit investment trusts); (j) currencies; (k) currency options; (l) currency warrants; (m) interest rate options; (n) financial futures; (o) convertible adjustable preferred stock; (p) any securities or securities options issued by the Company or an Affiliate; (q) mutual funds that the Trustee does not have dealer agreements with; (r) any investment vehicle not readily tradable; and (s) any other investment which is prohibited, from time to time, by the Benefits Committee.
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ARTICLE VIII.
BENEFITS
8.1 Payment of Accrued Benefit on or after Normal Retirement Date or Total and Permanent Disability .
(a) Retirement . The following provisions only shall apply to a Participant whose Termination of Employment occurs on or after the earlier of age 65 or the date he becomes eligible to begin to receive early retirement benefits under a Pension Plan in which he participates, and whose Termination of Employment does not occur by reason of death or Disability. Under such circumstances, the Participants Accrued Benefit shall be fully 100% vested, and the Trustee shall distribute to the Participant his Accrued Benefit in the form of a lump sum payment. Subject to the limitations set forth in this paragraph and the additional limitations set forth in Section 8.8, such distribution shall be made as soon as practicable after such Termination of Employment. Such distribution shall not in any event be made prior to the Participants Termination of Employment and such distribution shall not be made without the Participants consent, if the Participants vested Accrued Benefit exceeds $5,000 and the Participant has not attained the age of 70 1 / 2 as of the date of the distribution. Such consent may be given at any time after such Termination of Employment. A Participant who fails to consent to a distribution under this Section 8.1(a) within 120 days of his Termination of Employment shall be required to pay both the applicable fees under Section 7.13 and an annual fee as determined by the Benefits Committee toward his share of administrative, trustee, recordkeeping and other fees associated with maintenance of his Accrued Benefit in the Plan. A Participant who is eligible to receive a distribution under this Subsection 8.1(a) may, at any time prior to receiving such distribution, request a withdrawal of benefits pursuant to Subsection 8.4(c). If a Participant fails to timely elect a distribution of his Accrued Benefit, his Accrued Benefit will be distributed in the form of a lump sum payment, no later than April 1 of the year following the year in which such Participant attains the age of 70 1 / 2 .
(b) Disability . Upon the Termination of Employment of a Participant by reason of Disability, the Participants Accrued Benefit shall become fully 100% vested, and the Trustee shall distribute to the Participant his Accrued Benefit in the form of a lump sum payment. Subject to the limitations set forth in this paragraph and the additional limitations set forth in Section 8.8 hereof, such distribution shall be made or begin as soon as administratively practical after such Termination of Employment. Such distribution shall not in any event be made prior to the Participants Termination of Employment and such distribution shall not be made without the Participants consent, if the Participants Accrued Benefit exceeds $5,000 and the Participant has not attained age 70 1 / 2 as of the date of the distribution. Such consent may be given at any time after such Termination of Employment. A Participant who fails to consent to a distribution under this Section 8.1(b) within 120 days of his Termination of Employment shall be required to pay both the applicable fees under Section 7.13 and an annual fee as determined by the Benefits Committee toward his share of administrative, trustee, recordkeeping and other fees associated with maintenance of his Accrued Benefit in the Plan.
8.2 Payment of Accrued Benefit on Death . The provisions of this Section 8.2 shall apply if a Participant dies:
(a) If the Termination of Employment of a Participant is caused by death, the Participants Accrued Benefit shall become fully 100% vested.
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(b) If the Participant is married, the Participants Beneficiary must be the Participants spouse at his death, unless such spouse, on a form provided by the Benefits Committee, consents to the Participant naming another Beneficiary or Beneficiaries, and such spouse s consent acknowledges the effect of such consent and is witnessed by a Plan representative or notary public. In the event that the Participants spouse has consented on a form as herein provided, the Participant may change such designation of Beneficiary from time to time only after again obtaining spousal consent and filing a new Beneficiary designation form with the Benefits Committee. If the Participant is not married, the Participant may change his designation of Beneficiary from time to time by filing a new Beneficiary designation form with the Benefits Committee. In all events, no designation of Beneficiary or change of Beneficiary shall be effective until filed with the Benefits Committee.
(c) Upon the entry of a decree of divorce respecting a married Participant and his or her spouse, any designation of such spouse as Beneficiary of such Participant shall be revoked automatically and become ineffective on and after the date the decree is entered, unless otherwise provided in a Qualified Domestic Relations Order. The automatic revocation of such Beneficiary designation shall cause the Participants Accrued Benefit to be distributed under the provisions of the Plan as if such spouse had predeceased the Participant. However, a Participant may designate a former spouse as a Beneficiary under the Plan, provided a properly completed Beneficiary designation form is filed with the Benefits Committee subsequent to entry of a decree of divorce respecting the Participant and such former spouse.
(d) Subject to the provisions of Subsection (c), above, if a Participant shall fail to file a valid Beneficiary designation form, or if all designated Beneficiaries shall have predeceased the Participant, the Benefits Committee shall direct the Trustee to distribute such Participants Accrued Benefit to his estate, unless the Participant is survived by a spouse, in which event such distribution shall be made to the surviving spouse.
(e) Any payment under this Section 8.2 shall be made or begin as soon as practicable after the death of the Participant and shall be paid in a lump sum. In all events payment of a Participants entire Accrued Benefit to a Beneficiary shall be completed within five years of the date of death of the Participant and shall be paid in a lump sum. In this regard, the Participants designated beneficiaries may elect to defer payment of a lump sum payment to a valuation date within five years of a Participants death.
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8.3 Payment of Accrued Benefits Upon Termination of Employment; Vesting .
(a) Vested Percentage . The nonforfeitable portion of the Accrued Benefit of a Participant is the sum of (i) all of the Participants Accounts, other than his Employer Matching Contributions Account and Employer Discretionary Contribution Account, plus (ii) a percentage of the Participants Employer Matching Contribution Account and Employer Discretionary Contribution Account determined in accordance with the following vesting schedule:
Years of Service |
Nonforfeitable Percentage
|
||
Less than 1 |
0 | % | |
At least 1 but less than 2 |
20 | % | |
At least 2 but less than 3 |
40 | % | |
At least 3 but less than 4 |
60 | % | |
At least 4 but less than 5 |
80 | % | |
5 or more |
100 | % |
Notwithstanding the foregoing vesting schedule, if (i) a Participants Termination of Employment occurs because of a formal reduction-in-force or job elimination designated as such in an authorized writing or if a Participant is laid off without being granted by an Employer a conditional right to be reemployed, or (ii) the Participants employment was transferred from Williams to the Company effective January 1, 2004, such Participant shall become 100% vested immediately in this Plan.
(b) At any relevant time, a Participants vested interest in his Employer Matching Contribution Account and Employer Discretionary Contribution Account shall not be less than X, where
X equals P(AB + D) - D; and
P equals the vested percentage at the relevant time;
AB equals the balance of the Employer Matching Contribution Account and Employer Discretionary Contribution Account at the relevant time; and
D equals the amount of any withdrawal or distribution.
(c) Special Distributions Provisions . The following provisions other than Subsection (i) only shall apply if a Participant incurs a Termination of Employment on account of an event other than death, Disability, or retirement on or after attaining age 65 or after the date he becomes eligible to begin to receive early retirement benefits under a Pension Plan in which he participates:
(i) Cash-out . If on or at any time after a Termination of Employment the vested Accrued Benefit of such Participant is $5,000 or less, determined at the time of distribution, (or, if his vested Accrued Benefit is a greater amount and the Participant consents to an immediate distribution of his Accrued Benefit), the Trustee shall distribute in a lump sum to the Participant an amount equal to the vested portion of his Accrued Benefit. Such distribution shall be made no sooner than 120 days following such Termination of Employment or, where applicable, the date of receipt of the Participants timely consent to such distribution. The nonvested balance of the accounts of such Participant who receives a distribution of his Accrued Benefit pursuant to this Subsection (c)(i) shall be treated as a Forfeiture as of the date of such distribution. For purposes of this section, in determining whether a Participants vested Accrued Benefit is $5,000 or less, the value of the Participants nonforfeitable Account balance shall be determined without regard to that portion of the Account balance that is attributable to rollover contributions (and earnings allocable thereto) within the meaning of sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of the Code.
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(ii) Deferred Distribution . If the vested Accrued Benefit of such Participant is more than $5,000, the distribution of the vested portion of the Accrued Benefit of such Participant shall be deferred until the Participant attains age 70½ or dies, unless the Participant consents to an earlier distribution of the vested portion of his Accrued Benefit in the manner required by the Benefits Committee, in its discretion. The vested portion of the Participants Accrued Benefit shall be distributed by the Trustee in the form of a lump sum payment. The non-vested balance of the Accounts of a Participant whose vested Accrued Benefit exceeds $5,000 and whose consent to a distribution of his Accrued Benefit under this Subsection (c)(ii) has not been obtained shall be treated as a Forfeiture after such Participant incurs five consecutive One Year Breaks-in-Service. A Participant who fails to consent to a distribution under Section 8.3(c)(i) within 120 days of Termination of Employment shall be required to pay both the applicable fees under Section 7.15 and an annual fee as determined by the Trustee toward his share of administrative, trustee, recordkeeping and other fees associated with the maintenance of his Accrued Benefit in the Plan.
(d) Re-employment . If an Employer re-employs a former Participant who received a distribution of his Accrued Benefit in connection with a Termination of Employment at a time when the balance of his Accounts were not fully vested, such former Participant shall have the right on or before the earlier of (i) the close of the first period of five consecutive One Year Break-in-Service commencing after the date of such distribution, or (ii) the fifth anniversary of such reemployment, to repay in cash to the Trustee an amount equal to the entire amount of the distribution the former Participant earlier received. Upon receipt of such amount by the Trustee, that portion of the former Participant s Accrued Benefit which had been forfeited because of such earlier distribution shall be restored. Such restored Accrued Benefit plus the amount repaid to the Plan by the former Participant shall be equal to the Accrued Benefit of the former Participant on the Valuation Date immediately preceding the date on which the former Participant received the original distribution. The restoration of a re-employed Participants Accrued Benefit shall be made as of the Valuation Date coincident with or next following the date on which the former Participant repays the entire amount of the earlier distribution. Any portion of the re-employed Participants Accrued Benefit that earlier had been treated as a Forfeiture shall be restored by allocating an amount to the Employer Contribution Account (or other account) of the re-employed Participant from the Forfeitures of other Participants for the Plan Year in which such restoration is to be made. To the extent the Forfeitures of other Participants are insufficient to make all or a portion of the required restoration, the Employer shall contribute to the Plan, without regard to the other provisions of this Plan, an amount equal to such deficiency.
(e) Accounting for and Investment of Repayments . The amount of a reemployed Employees Accrued Benefit that such former Participant repays to this Plan pursuant to Subsection (d) above shall be credited (i) if such amount was taxable upon distribution to the Participants After-Tax Contribution Account, and/or (ii) if such amount was non-taxable upon distribution to the Participants Rollover Contribution Account and shall be invested in accordance with Section 6.2 of this Plan. The amount of such former Participants Accrued Benefit that originally had been forfeited and is thereafter restored shall be recredited to the Participants Employer Contribution Account.
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8.4 Withdrawal of Benefits . Subject to Section 7.13, a Participant may request withdrawals, as follows:
(a) Partial In-Service Withdrawal . Each Participant who is an Employee may withdraw, in a manner prescribed by the Benefits Committee, an amount which does not exceed the balance, if any, in his Rollover Contribution Account. A withdrawal request may be made at any time by providing the Trustee with the proper instructions, voice or otherwise, required by the Trustee, in its discretion, and designating therein whether such distribution is to be made in cash. The effective date of the request will be as soon as administratively practicable after the Trustee receives such request. A Participant may only make two withdrawals in any Plan Year under this Section 8.4(a). The Benefits Committee shall direct the Trustee to make payment of any withdrawal requested under this Subsection 8.4(a) that is not contrary to the provisions of the Plan, and the Trustee shall make such payment, as soon as administratively practicable after the Participants request. A Participant shall be charged a minimal check fee, as determined by the Trustee, for a Partial In-Service Withdrawal.
(b) Additional In-Service Withdrawal . A Participant who has completed at least two Years of Service and who is an Employee may request to withdraw, in a manner prescribed by the Benefits Committee, an amount which does not exceed:
(i) the nonforfeitable portion of his Employer Contribution Account,
(ii) his After-Tax Account, and
(iii) if he is at least age 59 1 / 2 , his Pre-Tax Account and Catch-up Contribution Account.
If a Participant has a loan from the Plan outstanding, the amount available for withdrawal shall be reduced by the amount of the outstanding balance of such loan.
The minimum amount of any withdrawal under this Subsection 8.4(b) shall be $500. A withdrawal request may be made at any time by providing the Trustee with the proper instructions, voice or otherwise, required by the Trustee, in its discretion, and designating therein whether such distribution is to be made in cash. The effective date of the request will be as soon as administratively practicable after the Trustee receives such request. A Participant who makes a withdrawal pursuant to this Subsection 8.4(b) will not be permitted to make Employee Contributions to the Plan for a period of six months following the month in which his withdrawal request becomes effective. In addition, a Participant who receives a withdrawal under this Subsection 8.4(b) shall not be entitled to another withdrawal under this Subsection 8.4(b) until 12 months after the prior withdrawal. The Benefits Committee shall direct the Trustee to make payment of any withdrawal requested under this Subsection 8.4(b) that is not contrary to the provisions of the Plan, and the Trustee shall make such payment, as soon as practicable after the Participants request, of the Participants nonforfeitable interest from such Participants accounts, if applicable, in the following order: namely, the After-Tax Account, the Pre-Tax Account (if the Participant is at least 59 1 / 2 ), the Catch-up Contribution Account (if the Participant is at least 59 1 / 2 ), the Employer Matching Contribution Account and the Employer Discretionary Contribution Account. A Participant shall be charged a minimal check fee, as determined by the Trustee, for an Additional In-Service Withdrawal.
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(c) Post-Retirement Withdrawal . A Participant who is eligible to receive a distribution under Subsection 8.1(a) may withdraw, prior to receiving such a distribution in a manner prescribed by the Benefits Committee, an amount which does not exceed his vested Accrued Benefit. The minimum amount of any withdrawal under this Subsection 8.4(c) shall be $500. A withdrawal request may be made at any time prior to receiving a distribution pursuant to Subsection 8.1(a) by providing the Trustee with the proper instructions, voice or otherwise, required by the Trustee, in its discretion, and designating therein whether such distribution is to be made in cash. The effective date of the request will be as soon as administratively practicable after the Trustee receives such request. The Benefits Committee shall direct the Trustee to make payment of any withdrawal requested under this Subsection 8.4(c) that is not contrary to the provisions of the Plan, and the Trustee shall make such payment, as soon as practicable after the Participants request of the Participants interest from such Participants Accounts if applicable in the following order: namely, the Rollover Contribution Account, the After-Tax Account, the Pre-Tax Account, the Catch-up Contribution Account, the Employer Matching Contribution Account, Employer Salary Deferral Account, and the Employer Discretionary Contribution Account. A Participant shall be charged a minimal check fee, as determined by the Trustee, for a Post-Retirement Withdrawal.
(d) Hardship Withdrawals . Subject to the terms and conditions of this Subsection (d), a Participant who is an Employee may request, on account of a hardship, to make a cash withdrawal from his Pre-Tax Account and Catch-up Account; however, any earnings on amounts held in the Pre-Tax Account and any amounts invested in a self-directed brokerage account may not be withdrawn. Such request may be made at any time by providing the Trustee with the proper instructions, voice or otherwise, required by the Trustee, in its discretion, and by filing a request therefor with the Trustee on a form provided for that purpose. If approved by the Trustee as authorized by the Benefits Committee, the effective date of the request will be as soon as administratively feasible after such approval. Withdrawals from a Participants Pre-Tax Account and Catch-up Account shall be permitted only under the following conditions: (i) the Participant suffers a Disability; or (ii) the Participant has withdrawn all other amounts available for withdrawal by such Participant under this Plan and any other plan maintained by an Employer or an Affiliate, including all nontaxable loans currently available under all plans maintained by the Employer or an Affiliate, and the Participant has suffered a financial hardship. The amount withdrawable in the event of financial hardship shall be limited to the amount required to meet such hardship in light of immediate and heavy financial needs of the Participant. The events that will constitute financial hardship are: (i) purchase of a principal dwelling for a Participant, in which case the amount of financial hardship will be deemed to be a down payment and closing costs; (ii) education at a higher level than a secondary school for the Participant and his children and spouse, in which case the financial hardship will be deemed to be tuition, fees, books, and necessary room and board for the next year; (iii) expenses for illness of the Participant, his children and spouse, his parents, and his spouses parents, in which case the amount of the financial hardship will be the amount of such expenses not covered by insurance; (iv) imminent eviction of the Participant from, or imminent foreclosure of the mortgage on, the principal residence of the Participant, in which case the financial hardship will be the amount necessary to prevent such eviction or foreclosure; and (v) any other event that constitutes a safe
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harbor event as provided by the IRS or regulations. The amount of financial hardship may be grossed up to include, if elected by the Participant, an amount up to the 20% withholding tax on withdrawals and, if applicable, the 10% penalty tax on premature distributions.
The Participant shall be required to submit satisfactory evidence to the Trustee of such hardship and to certify that a financial hardship exists. The Benefits Committee may reasonably rely on the certification of the Participant.
A Participant who makes a withdrawal pursuant to this Subsection (d) will not be eligible to make Employee Contributions to the Plan for a period of six months following the receipt of such withdrawal. Such Participant shall be required to reenroll in the Plan in order to again begin making employee Contributions to the Plan after the six-month period.
8.5 Deduction of Taxes from Amounts Payable . The Trustee may deduct from the amount to be distributed such amount as the Trustee, in its sole discretion, deems proper to protect the Trustee and the Trust against liability for the payment of death, succession, inheritance, income, or other taxes, and out of the money so deducted, the Trustee may discharge any such liability and pay the amount remaining to the Participant, the Beneficiary or the deceased Participants estate, as the case may be.
8.6 Special Provisions Regarding Payment of Benefits . Distributions under Sections 8.1, 8.2 and 8.3 of this Plan shall be made in accordance with each of the following conditions:
(a) Subject to the ability of a Participant to defer distributions under Section 8.1, the distributions of the Accrued Benefit of a Participant shall be made not later than 60 days after the latest of the close of the Plan Year in which (1) the Participant attains age 65, (2) occurs the 10th anniversary of the Plan Year in which the Participant commenced participation, or (3) the Participant had a Termination of Employment.
(b) Except as provided below in this Subsection (b) and Section 8.6A, the distribution of the Accrued Benefit of a Participant who is not a 5-percent owner shall commence not later than April 1 of the calendar year immediately following the calendar year in which the later of the following events occurs: (i) the Participant attains age 70 1 / 2 ; or (ii) the Participant incurs a Termination of Employment. The distribution of the Accrued Benefit of a Participant who is a 5-percent owner shall commence not later than April 1 of the calendar year immediately following the calendar year in which such Participant attains age 70 1 / 2 . A Participant shall be considered to be a 5-percent owner for purposes of this Subsection (b) if such Participant is a 5-percent owner as defined in Code Section 416 at any time during the Plan Year ending with or within the calendar year in which such Participant attains age 70 1 / 2 . Once distributions have begun to a Participant who is considered to be a 5-percent owner pursuant to this Subsection (b), distributions must continue even if such Participant ceases to be a 5-percent owner in a subsequent year.
(c) If the distribution of a Participants Accrued Benefit shall commence prior to his death, and if the Participant dies before the distribution of his Accrued Benefit has been completed, the remaining portion of his Accrued Benefit shall be distributed at least as rapidly as under the method of distribution in effect at the time of his death.
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(d) In all events, all distributions of a Participants Accrued Benefit shall be made in accordance with the requirements of Code Section 401(a)(9) and applicable regulations promulgated thereunder.
8.7 Minimum Distribution Requirements IRS Model Amendment .
(a) The provisions of this Section 8.7 will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 Distribution Calendar Year.
(b) The requirements of this Section 8.7 will take precedence over any inconsistent provisions of the Plan.
(c) All distributions required under this Section 8.7 will be determined and made in accordance with the Treasury regulations under section 401(a)(9) of the Code.
(d) Notwithstanding the other provisions of this Section 8.7, distributions may be made under a designation made before January 1, 1984, in accordance with section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that relate to section 242(b)(2) of TEFRA.
(e) The Participants entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participants Required Beginning Date. If the Participant dies before distributions begin, the Participants entire interest will be distributed, or begin to be distributed, no later than as follows:
(1) If the Participants surviving spouse is the Participants sole Designated Beneficiary, then distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70 1 / 2 , if later.
(2) If the Participants surviving spouse is not the Participants sole Designated Beneficiary, then distributions to the Designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died.
(3) If there is no Designated Beneficiary as of September 30 of the year following the year of the Participants death, the Participants entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participants death.
(4) If the Participants surviving spouse is the Participants sole Designated Beneficiary and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, this Paragraph (disregarding item (1) above), will apply as if the surviving spouse were the Participant.
(f) For purposes of this Paragraph (e) and Paragraph (g) below, unless item (4) above applies, distributions are considered to begin on the Participants Required Beginning Date. If item (4) above applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under item (1) above.
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(g) If the Participant dies before distributions begin and there is a Designated Beneficiary, distribution to the Designated Beneficiary is not required to begin by the date specified in Paragraph (e) above but the Participants entire interest will be distributed to the Designated Beneficiary by December 31 of the calendar year containing the fifth anniversary of the Participants death. If the Participants surviving spouse is the Participants sole Designated Beneficiary and the surviving spouse dies after the Participant but before distributions to either the Participant or the surviving spouse begin, this Paragraph will apply as if the surviving spouse were the Participant.
(h) For purposes of this Section 8.7, the following terms and phrases shall have these respective meanings:
(1) Designated Beneficiary : The individual who is designated as a Participants beneficiary under Section 9.2 of the Plan and is a Designated Beneficiary under section 401(a)(9) of the Code and section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.
(2) Distribution Calendar Year : A calendar year for which a minimum distribution is required. For distributions beginning before the Participants death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participants Required Beginning Date. For distributions beginning after the Participants death, the first Distribution Calendar Year is the calendar year in which distributions are required to begin under Paragraph (e). The required minimum distribution for the Participants first Distribution Calendar Year will be made on or before the Participants Required Beginning Date. The required minimum distribution for other Distribution Calendar Years, including the required minimum distribution for the Distribution Calendar Year in which the Participants Required Beginning Date occurs, will be made on or before December 31 of that Distribution Calendar Year.
(3) Participants Account Balance . The balance in a Participants Accounts as of the last Valuation Date in the calendar year immediately preceding the Distribution Calendar Year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the Participants Accounts as of dates in the valuation calendar year after the Valuation Date and decreased by distributions made in the valuation calendar year after the Valuation Date. A Participants Account Balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the Distribution Calendar Year if distributed or transferred in the valuation calendar year.
(4) Requiring Beginning Date . With respect to a Participant or beneficiary, the date described in Section 417 of the Code.
8.8 Facility of Payment . If a Participant or Beneficiary is declared an incompetent or is a minor, any benefits to which such Participant or Beneficiary is entitled shall be payable only to a conservator, guardian, or other person legally charged with his care who was appointed or designated by a court of competent jurisdiction. An Employer, the Trustee and the Benefits Committee shall not be under any duty to see to the proper application of such payments.
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8.9 Advance Payment of Benefits . If a Participant is entitled to payment of a benefit under the Plan, the Benefits Committee may, with the Participants consent if required under the provisions of the Plan, make advance payment of all or any portion of such Participants benefit. If such advance payment is made, the Benefits Committee shall require reimbursement of any amount subsequently determined not to have been properly payable to such Participant.
8.10 Unclaimed Amounts . Unclaimed amounts shall consist of the benefits which the Benefits Committee has directed to be paid to a Participant or Beneficiary but which are not distributed because of the Benefits Committees inability, after reasonable search, to locate such Participant or Beneficiary within a period of two years after the payment of benefits becomes due. Unclaimed amounts shall be considered as Forfeitures which shall be deemed to occur as of the end of the said two year period. If, after such Forfeiture, an unclaimed amount is properly claimed by the former Participant or Beneficiary, said amount shall be paid to such former Participant or Beneficiary, and such payment shall be accounted for by charging it against Forfeitures, or if insufficient, made up from Employer Contributions without regard to any other provision of this Plan.
8.11 Domestic Relations Order Distributions . The Accrued Benefit of a Participant shall be distributable in accordance with the terms of a Qualified Domestic Relations Order, including distributions prior to the Participants earliest retirement age as defined in Code Section 414(p).
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ARTICLE IX.
ADMINISTRATION
9.1 Fiduciaries . Under certain circumstances, the Trustee, the Board of Managers, the Investment Managers, or the Benefits Committee may be determined by a court of law to be a fiduciary with respect to a particular action under the Plan or the Trust Agreement. As authorized by ERISA, to prevent any two parties to the Plan from being deemed co-fiduciaries with respect to a particular function, both the Plan and Trust Agreement are intended, and should be construed, to allocate to each party to the Plan only those specific powers, duties, responsibilities, and obligations as are specifically granted to it under the Plan or Trust. The Company shall be the named fiduciary for purposes of ERISA.
9.2 Allocation of Responsibilities Among Named Fiduciaries .
(a) Trustee . The Trustee shall have the authority and responsibility to manage and control the Trust Fund and for the investment and safekeeping of the assets of the Plan, except to the extent such authority and responsibility is delegated to one or more Investment Managers. The Trustee shall also have those responsibilities set forth in the Trust Agreement and the provisions of this Plan.
(b) Board of Managers . The Board of Managers shall have exclusive authority and responsibility for:
(1) The termination of this Plan; and
(2) The adoption of an amendment to this Plan which would materially increase or decrease the amount of Employer Contributions provided for in this Plan.
(c) Benefits Committee . The Benefits Committee shall have exclusive authority responsibility for those functions set forth in Section 9.3 and in other provisions of this Plan.
(d) Investment Managers . The Investment Managers, if and to the extent appointed by the Benefits Committee, shall have the authority and responsibility for the investment of all or any part of the assets of the Plan, as delegated to the Investment Managers by the Benefits Committee. In addition, in investing any of the assets of the Plan, the Investment Managers shall follow any investment objectives or guidelines established by the Benefits Committee and communicated to the Investment Managers.
9.3 Provisions Concerning the Benefits Committee .
(a) Membership and Voting . The members of the Benefits Committee shall be appointed and removed by the Chief Executive Officer of the Company. The Benefits Committee shall consist of not less than three members. The Chief Executive Officer of the Company may remove any member of the Benefits Committee at any time, with or without cause, by written notice to such member and to the other members of the Benefits Committee. Any member may resign by delivering a written resignation to the Chief Executive Officer of the
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Company. Vacancies in the Benefits Committee arising by death, resignation or removal shall be filled by the Chief Executive Officer of the Company. The Benefits Committee shall act by a majority of its members at the time in office, and such action may be taken by a vote at a meeting, in writing without a meeting, or by telephonic communications. Attendance at a meeting shall constitute waiver of notice thereof. A member of the Benefits Committee who is a Participant of the Plan shall not vote on any question relating specifically to such Participant. Any such action shall be voted or decided by a majority of the remaining members of the Benefits Committee. The Benefits Committee shall appoint a Secretary who may, but need not, be a member thereof. The Benefits Committee may appoint from its members such subcommittees with such powers as the Benefits Committee shall determine.
(b) Powers and Duties of Benefits Committee . The Benefits Committee shall have the authority and responsibility for:
(1) All amendments to this Plan, except to the extent such authority is reserved to the Board of Managers;
(2) The approval of any merger or spin-off of any part of this Plan;
(3) The appointment, removal, with or without cause, or the replacement of the Trustee, and Investment Managers;
(4) The delegation of responsibilities to the Trustee, or any other person or entity;
(5) Execute any certificate, instrument or other written direction on behalf of the Plan and may make any payment on behalf of the Plan. All interpretations of this Plan, and questions concerning its administration and application, shall be determined by the Benefits Committee, and such determination shall be binding on all persons, except as otherwise expressly provided herein; and
(6) The Benefits Committee shall select the Investment Funds and Investment Managers under the Plan and monitor the performance of such Investment Funds and Investment Managers.
(7) To construe and interpret the Plan in its sole discretion and to resolve any ambiguities with respect to any of the terms and provisions thereof as written and as applied to the operation of the Plan;
(8) To decide all questions of eligibility and determine the amount, manner and time of payment of any Benefits hereunder;
(9) To prescribe procedures to be followed by Participants or Beneficiaries filing applications for Benefits;
(10) Prepare and distribute, in such manner as the Committee determines to be appropriate, information explaining the Plan;
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(11) To receive from the Employer and from Participants and Beneficiaries such information as shall be necessary for the proper administration of the Plan;
(12) To furnish the Employer, upon request, such annual reports with respect to the administration of the Plan as are reasonable and appropriate; and
(13) To receive, review and keep on file (as it deems convenient or proper) reports of the financial condition, and of the receipts and disbursements, of the Trust Fund from the Trustee.
The Benefits Committee may appoint such accountants, counsel, specialists, and other persons, as it deems necessary or desirable in connection with the administration of this Plan. Such accountants and counsel may, but need not, be accountants and counsel for the Company or an Affiliate. The Benefits Committee also shall have such other duties, authority and responsibility as may be delegated by the Board of Managers or the Chief Executive Officer of the Company.
9.4 Delegation of Responsibilities: Bonding .
(a) Delegation and Allocation . The Board of Managers and the Benefits Committee shall have the authority to delegate or allocate, from time to time, by a written instrument, all or any part of their responsibilities under this Plan to such person or persons as each may deem advisable and in the same manner to revoke any such delegation or allocation of responsibility. Any action of a person in the exercise of such delegated or allocated responsibility shall have the same force and effect for all purposes hereunder as if such action had been taken by the Board of Managers or the Benefits Committee. An Employer, the Board of Managers or the Benefits Committee shall not be liable for any acts or omissions of any such person, who shall periodically report to the Board of Managers or the Benefits Committee, as applicable, concerning the discharge of the delegated or allocated responsibilities.
(b) Bonding . The members of the Benefits Committee shall serve without bond (except as expressly required by federal law) and without compensation for their services as such.
9.5 No Joint Fiduciary Responsibilities . This Plan is intended to allocate to each named fiduciary the individual responsibility for the prudent execution of the functions assigned to it, and none of such responsibilities or any other responsibility shall be shared by two or more of such named fiduciaries unless such sharing is provided for by a specific provision of the Plan. Whenever one named fiduciary is required herein to follow the directions of another named fiduciary, the two named fiduciaries shall not be deemed to have been assigned a shared responsibility, but the responsibility of a named fiduciary receiving such directions shall be to follow them insofar as such instructions are on their face proper under applicable law.
9.6 Information to be Supplied by Employer . Each Employer shall supply to the Benefits Committee, within a reasonable time after each Valuation Date and in such form as the Benefits Committee shall require, the names of all Employees who incurred a Termination of Employment or layoff and the date of termination of each, the amount of Compensation paid to each Active Participant, the amount of Employee and Employer Contributions made on behalf of each Participant. The Benefits Committee may rely conclusively on the information certified to it by an Employer. Each Employer shall provide to the Benefits Committee or its delegate such other information, as it shall from time to time need in the discharge of its duties.
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9.7 Records . The regularly kept records of the Trustee, Benefits Committee and of any Employer shall be conclusive evidence of the Accrued Benefit, Vesting Service, Years of Participation, Eligibility Service of a Participant, his Compensation, his age, marital status, his status as an Eligible Employee, and all other matters contained therein applicable to this Plan; provided that a Participant may request a correction in the record of his age and marital status at any time prior to retirement, and such correction shall be made if within 90 days after such request he furnishes in support thereof a birth certificate, baptismal certificate, marriage certificate, or other documentary proof of age satisfactory to the Benefits Committee.
9.8 Fiduciary Capacity . Any person or group of persons may serve in more than one fiduciary capacity with respect to the Plan.
9.9 Blackout Period Restrictions . Notwithstanding any other provision in the Plan to the contrary, during the period of time established by the Benefits Committee, in its sole and absolute discretion, necessary to make system or investment changes or mergers, acquisitions or divestitures associated with the administration of the Plan, a Participant shall not be permitted to change the investment direction of his Accrued Benefit, take distributions, make withdrawals, take loans, or to effectuate other transactions determined by the Benefits Committee, in its sole and absolute discretion.
9.10 Military Leave . Notwithstanding any provision of this Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Section 414(u) of the Code. Loan repayments will be suspended under this Plan as permitted under Section 414(u)(4) of the Code.
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ARTICLE X.
AMENDMENT AND TERMINATION OF THE PLAN
10.1 Discontinuance of Contributions . It is the expectation of the Company that it will continue the Plan and the payment of Employer Contributions hereunder indefinitely, but the continuation of the Plan and the payment of Employer Contributions hereunder is not assumed as a contractual obligation of the Company or any other Employer, and the Company reserves the right at any time to reduce, suspend or discontinue its contributions hereunder; provided, however, that the Employer Contributions for any Plan Year accrued or determined prior to the end of such Plan Year shall not after the end of said Plan Year be retroactively reduced, suspended or discontinued.
10.2 Amendments .
(a) As provided in Article IX, the Benefits Committee or Board of Managers, as appropriate, may amend, modify, change, revise or discontinue this Plan or the Trust Agreement, at any time; provided that, except where allowed by or required to conform to provisions of the Code or ERISA, or any other statute relating to employees trusts, or any official regulations or rulings issued pursuant thereto: (1) no amendment shall increase the duties or liabilities of a Trustee or the Investment Managers without their respective written consent; (2) no amendment shall have the effect of vesting in any Employer any interest in any funds, securities or other property, subject to the terms of this Plan and the Trust Agreement; (3) no amendment shall authorize or permit at any time any part of the corpus or income of the Trust Fund to be used or diverted to purposes other than for the exclusive benefit of Participants and their Beneficiaries; and (4) no amendment shall have any retroactive effect which would deprive any Participant or Beneficiary of any Accrued Benefit already accrued.
(b) If a person is not an Employee on or after the effective date of any amendment to the Plan, the amendment shall be deemed as having no effect on the amount of such persons Accrued Benefit, unless the amendment specifically provides otherwise.
(c) No amendment to the Plans vesting schedule shall deprive a Participant of his nonforfeitable rights to his Accrued Benefits to the date of the amendment. Further, if the vesting schedule of the Plan is amended, each Participant with at least three years of Vesting Service with the Employer may elect, within a reasonable period after the adoption of the amendment, to have his nonforfeitable percentage computed under the Plan without regard to such amendment. The period during which the election may be made shall commence with the date the amendment is adopted and shall end on the latest of:
(1) 60 days after the amendment is adopted;
(2) 60 days after the amendment becomes effective; or
(3) 60 days after the Participant is issued written notice of the amendment by the Employer or Benefits Committee.
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10.3 Plan Termination . This Plan shall terminate upon the happening of any of the following events:
(a) A general assignment by the Company to or for the benefit of its creditors, or dissolution of the Company other than by form of or as a result of a reorganization where the business of the Company is continued; or
(b) Termination of the Plan by the Board of Managers at any time when, in its judgment, business, financial or other good causes make such termination necessary; such termination to become effective upon the execution and delivery by the Company to the Benefits Committee and to the Trustee of a written resolution signed on its behalf by an officer of the Company and stating the fact of such termination.
10.4 Payment Upon Termination . Upon termination of the Plan or complete discontinuance of Employer Contributions hereunder, each Participant and Beneficiarys Accrued Benefit shall become fully vested. Upon a partial termination of the Plan, the Accrued Benefit of each affected Participant shall become fully vested. Upon a termination of the Plan, the Trustee shall distribute to each Participant the entire amount of his Accrued Benefit in a lump sum no later than 60 days after the close of the Plan Year in which the event occurred.
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ARTICLE XI.
TOP-HEAVY PROVISIONS
11.1 Definitions . The following words and phrases shall have the meanings set forth below when used in the capitalized form, unless a different meaning is clearly warranted by the context:
(a) Aggregation Group means a Required Aggregation Group or a Permissive Aggregation Group, as appropriate.
(1) Required Aggregation Group means that group of plans comprised of each defined contribution and each defined benefit plan sponsored by the Company or any Affiliate in which at least one Key Employee participates, and any other defined contribution or defined benefit plan sponsored by the Company or by any Affiliate which enables a plan in which a Key Employee participates to satisfy the minimum participation and non-discrimination requirements of Code Sections 410 or 401(a) (4).
(2) Permissive Aggregation Group means all plans included in the Required Aggregation Group and any other plan or plans sponsored by the Company or by an Affiliate but only if such group of plans would satisfy, in the aggregate, the minimum participation and non-discrimination requirements of Code Sections 410 and 401(a) (4) and contributions or benefits in such other plans are comparable to contributions or benefits in the plans of the Required Aggregation Group. The Benefits Committee shall determine which plan or plans shall be taken into account in determining the Permissive Aggregation Group.
(b) Determination Date means, with respect to a Plan Year, the last day of the immediately preceding Plan Year.
(c) Key Employee means any employee or former employee (including any deceased employee) who at any time during the Plan Year that includes the determination date was an officer of the employer having annual compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the Code for Plan Years beginning after December 31, 2002), a 5% owner of the employer, or a 1% owner of the employer having annual compensation of more than $150,000. For this purpose, annual compensation means compensation within the meaning of Section 415(c)(3) of the Code. The determination of who is a key employee will be made in accordance with Section 416(i)(1) of the Code and the applicable regulations and other guidance of general applicability issued thereunder.
(d) Non-key Employee shall mean an Employee who is not a Key Employee, including an Employee who is a former Key Employee.
(e) Top-Heavy Compensation shall mean for all purposes under this Article XI, annual compensation within the meaning of Code Section 415(c)(3) for the Plan Year containing the Determination Date.
11.2 Application of Top-Heavy Provisions . The top-heavy provisions of this Article shall be applied as follows:
(a) Single Plan Determination . Unless this Plan is included in an Aggregation Group, it will be considered top heavy and the provisions of this Article shall be applicable, if, as of a Determination Date, the cumulative Accrued Benefits of Key Employees under the Plan exceeds 60% of the cumulative Accrued Benefits of all Employees under the Plan.
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(b) Aggregation Group Determination . If the Plan is included in an Aggregation Group, it will be considered top heavy and the provisions of this Article XI shall be applicable, if, as of a Determination Date, the sum of account balances of Key Employees under all defined contribution plans in the group and the cumulative Accrued Benefits of Key Employees under all defined benefit plans in such group exceed 60% of the same amounts determined for all employees under all plans included in the Aggregation Group.
(c) Top-Heavy Test . This subsection (c) shall apply for purposes of determining the present values of the amounts of Account balances of Employees as of the determination date.
(1) Distributions During Year Ending on the Determination Date . The present values of the amounts of Account balances of an Employee as of the determination date shall be increased by the distributions made with respect to the employee under the Plan and any plan aggregated with the Plan under Section 416(g)(2) of the Code during the 1-year period ending on the determination date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the Plan under Section 416(g)(2)(A)(i) of the Code. In the case of a distribution made for a reason other than separation from service, death, or disability, this provision shall be applied by substituting 5-year period for 1-year period.
(2) Employees Not Performing Services During Year Ending on the Determination Date . The accounts of any individual who has not performed services for the Employer and its Affiliates during the 1-year period ending on the determination date shall not be taken into account.
11.3 Top-Heavy Determination . The Benefits Committee shall determine whether the Plan is a Top-Heavy Plan with respect to each Plan Year and such determination shall be final and binding on all Participants.
11.4 Vesting Requirements . A Participants interest in his Accrued Benefit shall vest in accordance with the provisions of Section 8.3 without regard to whether or not the Plan is determined to be top-heavy with respect to any Plan Year.
11.5 Minimum Contribution Amount . If the Plan is determined to be top-heavy with respect to a Plan Year, then each Eligible Employee who has not separated from service by the end of the Plan Year, other than a Key Employee, shall receive an allocation which is not less than the lesser of (a) 3% of his Compensation for such Plan Year, or (b) the greatest amount allocated to any Key Employee (when expressed as a percentage of Compensation) under this Plan or under any other defined contribution plan included in the Aggregation Group, if any; provided, however, in the event the greatest amount so allocated to any Key Employee is less
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than 3% of his Compensation for such Plan Year, then Pre-Tax Contributions shall be included in determining the amount allocated to each Key Employee. An Eligible Employee shall be entitled to such minimum contribution even though such Employee is not a Participant or fails to complete a Year of Service during such Plan Year. Such minimum contribution shall be determined without regard to Social Security integration or any Pre-Tax Contribution. Employer matching contributions shall be taken into account for purposes of satisfying the minimum contribution requirements of Section 416(c)(2) of the Code and the Plan. The preceding sentence shall apply with respect to matching contributions under the Plan or, if the Plan provides that the minimum contribution requirement shall be met in another plan, such other plan. Employer matching contributions that are used to satisfy the minimum contribution requirements shall be treated as matching contributions for purposes of the actual contribution percentage test and other requirements of Section 401(m) of the Code. If a Non-key Employee is a Participant and a participant in a defined benefit plan maintained by an Affiliate during a Plan Year in which the Plan is top-heavy, then such Participant shall be provided an allocation under the Plan equal to 5% of his compensation; provided, however, the amount of any such allocation under the Plan shall be reduced by the amount of any allocation made on behalf of such Participant for such Plan Year under any other defined contribution plan which is included in the Aggregation Group.
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ARTICLE XII.
LOANS
12.1 Authorization of Loans . Upon the request for a loan (which meets the requirements of this Article XII) made by a Participant who is an Employee, the Benefits Committee shall authorize the Trustee to make a loan to such Participant. All such loans shall be subject to the requirements of this Article XII and such other rules and guidelines, if any, as the Benefits Committee may prescribe from time to time. Any loan applied for after the Benefits Committee implements a paperless loan system, may be applied for and processed electronically, with the execution of such paper documents as the Benefits Committee may require being accomplished in connection with the disbursement of funds so as to establish an enforceable obligation under applicable law.
12.2 Minimum Requirements for Loans . A loan to a Participant must meet the following requirements as well as such other terms as the Benefits Committee may establish from time to time:
(a) Principal Amount . The maximum principal amount of any loan balance owed by a Participant to this Plan and to any other qualified plan sponsored by an Employer shall not exceed the lesser of: (1) $50,000 reduced by the aggregate of the highest outstanding balances of such loans during the immediately preceding twelve-month period, or (2) 50% of a Participants nonforfeitable Accrued Benefit, as of the most recently available determination of the Participants Accrued Benefit. All loans shall be made effective as of the Valuation Date following the receipt of a properly filed loan application, and loan funds shall be disbursed by the Trustee as soon as practicable thereafter. The minimum loan amount shall be $1,000. The Benefits Committee is authorized to adopt rules which either reduce the maximum principal amount of a loan or provide a minimum amount which may be loaned to a Participant.
(b) Maximum Term . The repayment term of any loan may not exceed 60 months from the date of the loan is made, unless the loan principal is used to acquire any dwelling unit which within a reasonable time is to be used as a principal residence of the Participant, in which case the maximum term shall not exceed 10 years. If a Participant incurs a Termination of Employment for any reason, the loan shall then immediately become due and payable 90 days from the date of the Termination of Employment.
(c) Interest Rate . Each loan shall bear interest at rate equal to the prime lending rate of Wachovia Bank, National Association plus one percentage point.
(d) Repayment . The loan of any Participant who is an Employee shall be repaid by payroll withholding over its term in level installment payments. A Participant shall also be allowed to prepay any scheduled payment at any time. Any prepayment will be applied first to any unpaid principal and then to any accrued but unpaid interest. Provided, however, if a Participant with a loan terminates employment for any reason, the loan shall then immediately become due and payable.
(e) Collateral . The loan shall be secured by up to 50% of the Participants nonforfeitable Accrued Benefit, and such other collateral as the Benefits Committee may require from time to time. The Benefits Committee may release any portion of such collateral that the Benefits Committee determines is not required to adequately secure the repayment of such loan.
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(f) Distribution of Accrued Benefit . If the nonforfeitable portion of a Participants Accrued Benefit is to be distributed prior to the Participants payment of all principal and accrued interest on any loan to such Participant, the distribution shall include, as an offset, the amount of unpaid principal and accrued interest on the loan as of the date of such distribution; however, if such distribution is made in connection with the sale of the stock or the assets of an Employer, the entire loan may be distributed solely as a Direct Rollover, in accordance with Article XIV to a trust for a qualified plan, as determined under Code Section 401(a), maintained by the purchaser, provided such trust will accept the Participants loan as an investment. The Benefits Committee may determine, in its discretion, that the amount of any distribution shall not include an offset for a loan balance, if the undistributed nonforfeitable portion of the Participants Accrued Benefit, which remains pledged as collateral for such outstanding loan, represents adequate security therefor. In addition, the Benefits Committee shall determine, in its discretion, whether or not a Direct Rollover is in connection with an acquisition of the stock or assets of an Employer.
(g) Notes . All loans shall be evidenced by a collateral promissory note containing such terms and conditions as the Benefits Committee shall require.
(h) Frequency . A Participant shall be permitted to have up to two loans at any one time. More than two loans may be permitted in the case of loans rolled into the Plan in connection with a corporate transaction at the sole discretion of the Benefits Committee.
(i) Funding Limitation . A Participant shall not be permitted to borrow funds from a self-directed brokerage account; however, any monies held in a self-directed brokerage account on behalf of the Participant shall be taken into account in determining the maximum available loan under Section 12.2(a).
(j) Rollover of Loans to this Plan . The Plan will accept a rollover of a loan if the rollover is in connection with the purchase of the stock or assets of another entity by the Employer. In the case of a loan rolled over to this Plan from another qualified plan, the term of the loan and the interest rate charged on the loan shall be the same as the terms of the loan prior to rollover to this Plan even if the term of the loan exceeds the maximum repayment period of this Plan. Except as otherwise provided herein, a loan rolled over to this Plan pursuant to this Subsection 12.2(j) shall be subject to the provisions of this Section 12.2.
12.3 Accounting for Loans . Each loan shall be deemed to be made from the account or accounts of the Participant to whom the loan is made. All payments with respect to the loan shall be credited to the account or accounts of such Participant from which such loan is deemed to be made.
12.4 Fees . The Trustee will determine the fee to initiate a loan and the monthly maintenance fee.
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ARTICLE XIII.
SPECIAL PLAN TO PLAN TRANSFERS
13.1 Transfers From Other Plans . With the approval of the Benefits Committee, all or any portion of the Accrued Benefit of any Participant or class of Participants may be transferred from (or to) this Plan to (or from) any other plan qualified under Code Section 401, subject to such terms and conditions as shall be established at the time of the transfer. No transfer of any accrued benefit will be made to this Plan from any plan required to provide benefits to its participants in the form of annuities pursuant to Code Section 401(a)(11) and 417, unless prior to such transfer appropriate provisions are included in this Plan to separately account for amounts so transferred and to provide such annuities with respect to such amounts separately accounted for on behalf of each Participant whose benefit is so transferred.
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ARTICLE XIV.
DIRECT ROLLOVERS
14.1 Right of Direct Rollover . Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributees election under this part, a Distributee may elect, at the time and in the manner prescribed by the Benefits Committee, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover.
14.2 Definitions . For purposes of this Article XIV, the following words and phrases shall have the meanings set forth below when used in the capitalized form, unless a different meaning is clearly warranted by the context:
(a) Direct Rollover shall mean a distribution by the Plan to the Eligible Retirement Plan specified by the Distributee.
(b) Distributee shall mean a person who is entitled to receive an Eligible Rollover Distribution from the Plan.
(c) Eligible Retirement Plan shall mean an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, or a qualified trust described in Section 401(a) of the Code, that accepts the Distributees Eligible Rollover Distribution. However, in the case of an Eligible Rollover Distribution to the surviving spouse, an Eligible Retirement Plan is an individual retirement account or individual retirement annuity. An Eligible Retirement Plan shall also mean an annuity contract described in Section 403(b) of the Code and an eligible plan under Section 457(b) which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan. The definition of Eligible Retirement Plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relation order, as defined in Section 414(p) of the Code.
(d) Eligible Rollover Distribution shall mean any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee and the Distributees designated beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; and the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). In addition, any amount that is distributed on account of hardship shall not be an Eligible Rollover Distribution and the Distributee may not elect to have any portion of such a distribution paid directly to an Eligible Retirement Plan. Further, a portion of a distribution shall not fail to be an Eligible Rollover Distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual
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retirement account or annuity described in Section 408(a) or (b) of the Code, or to a qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
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ARTICLE XV.
MISCELLANEOUS PROVISIONS
15.1 Employer Adoption . Any Affiliate may, adopt or withdraw from this Plan with the consent of the Benefits Committee. The adoption resolution may contain such specific changes and variations in this Plans terms and provisions applicable to the Employees of the adopting Employer.
15.2 Plan Merger . This Plan shall not be merged or consolidated with, nor shall any assets or liabilities be transferred to, any other plan, unless the benefits payable to each Participant under this Plan and any other plan involved in such merger, consolidation or transfer, if this Plan were terminated immediately after such action, would be equal to, or greater than, the benefits to which such Participant would have been entitled if this Plan had been terminated immediately before such action.
15.3 Indemnification . Each Employer shall indemnify and hold harmless each member of the Board of Managers, each member of the Benefits Committee, and each officer and employee of an Employer to whom are delegated duties, responsibilities, and authority with respect to this Plan against all claims, liabilities, fines and penalties, and all expenses reasonably incurred by or imposed upon him (including but not limited to reasonable attorney fees) which arise as a result of his actions or failure to act in connection with the operation and administration of this Plan to the extent lawfully allowable and to the extent that such claim, liability, fine, penalty, or expense is not paid for by liability insurance purchased or paid for by an Employer. Notwithstanding the foregoing, an Employer shall not indemnify any person for any such amount incurred through any settlement or compromise of any action unless the Employer consents in writing to such settlement or compromise.
15.4 Nonalienation of Benefits . Except as expressly provided for by this Plan or otherwise permitted by law, benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or levy of any kind, either voluntary or involuntary, including any such liability which is for alimony or other payments for the support of a spouse, former spouse or children of the Participant, or for any other relative of a Participant prior to being actually received by the person entitled to the benefit under the terms of the Plan; and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, garnish, execute or levy upon, or otherwise dispose of any right to benefits payable hereunder, shall be void. The Trust shall not in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits hereunder.
15.5 Contract of Employment . Nothing contained herein shall be construed to constitute a contract of employment between an Employer and any Employee. Any amounts contributed by an Employer under this Plan shall be a gratuitous payment in recognition of services performed by such Participant during the period covered by the Employer Contribution. Whether there shall be a contribution for any given Plan Year, and the amount of such contribution shall be determined solely pursuant to the provisions of this Plan.
52
15.6 Source of Benefits . All benefits payable under this Plan shall be paid or provided for solely from the Trust, and the Employers assume no liability or responsibility therefor.
15.7 Employees Trust . This Plan and Trust are created for the exclusive purpose of providing benefits to the Participants and their Beneficiaries and defraying reasonable expenses of administering the Plan. The Plan and Trust shall be interpreted in a manner consistent with their being, respectively, a Plan described in Section 401(a) of the Code and a Trust exempt under Section 501(a) of the Code. At no time shall the Trust Fund be diverted from the above purpose.
15.8 Gender and Number . Except when the context indicates to the contrary, when used herein, masculine terms shall be deemed to include the feminine and singular the plural.
15.9 Headings . The headings of Articles and Sections are included solely for convenience of reference, and if there is any conflict between such headings and the text of this Plan, the text shall control.
15.10 Invalidity of Certain Provisions . If any provision of this Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof and the Plan shall be construed and enforced as if such provisions, to the extent invalid or unenforceable, had not been included.
15.11 Law Governing . This Plan shall be construed and enforced according to the laws of the State of Oklahoma (other than its laws respecting choice of law) to the extent not preempted by ERISA.
53
ARTICLE XVI.
CLAIM REVIEW PROCEDURES
16.1 Claims Procedure .
(a) The Committee shall make all determinations as to the right of any person to benefits. If any request for benefits is wholly or partially denied, the Committee shall notify the person requesting such benefits, in writing, of such denial, including in such notification the following information:
(1) The specific reason or reasons for such denial;
(2) The specific references to the pertinent Plan provisions upon which the denial is based;
(3) A description of any additional material and information which may be needed to clarify the request, including an explanation of why such information is required; and
(4) An explanation of this Plans review procedure with respect to denial of such Benefits.
(5) Any such notice to be delivered to any Participant or Beneficiary shall be personally delivered within a reasonable time to such Participant by obtaining a signed receipt therefor or shall be mailed by certified or registered mail with return receipt requested to such Participant. Such notice shall be written to the best of the Committees ability in a manner that may be understood without legal counsel.
(b) Any Participant or Beneficiary whose claim has been denied in accordance with the foregoing Subsection (a) herein may appeal to the Committee for review of such denial by making a written request therefor within 60 days of receipt of the notification of such denial. Such Participant or Beneficiary may examine documents pertinent to the review and may submit to the Committee written issues and comments. Within 60 days (45 days in the case of a claim involving a disability determination) after receipt of the request for review, the Committee shall communicate to the claimant, in writing, its decision, and the communication shall set forth the reason or reasons for the decision and specific reference to those Plan provisions upon which the decision is based.
54
Executed this 31 ST day of December, 2003, to be effective for all purposes as of the Effective Date.
MAGELLAN MIDSTREAM HOLDINGS, L.P. | ||
By: |
Magellan Midstream Management, LLC, its general partner |
|
Name: |
/s/ John D. Chandler |
|
Title: |
VP and CFO |
55
APPENDIX I
Investment Funds
(as of January 1, 2004)
Gartmore Stable Value Fund (Default Investment Fund) |
Evergreen Core Bond |
American High Income Trust |
Van Kampen Equity & Income |
Van Kampen Comstock Fund |
Wachovia Enhanced Stock Market Index |
Growth Fund of America |
Fidelity Advisors Mid Cap Growth |
Evergreen Special Values |
First Eagle Overseas |
Self-Directed Brokerage Account |
Exhibit 10(d)
2004 Annual Incentive Program Summary
Summary
Magellans 2004 annual incentive program has been established to motivate individual activities that will improve the overall performance of the company. Metrics have been identified and targets set in several performance categories, including financial and operational categories. In addition, a funding metric has been established that sets a floor of performance for the partnership below which no payout for any metric will be made. This mechanism reflects the view of management that it is inappropriate to pay bonuses if the overall cash generation of Magellan drops very significantly for any reason.
The 2004 program payout will be based on a combination of:
| Partnership performance |
| Individual performance |
Threshold, target and stretch levels of achievement have been set for each metric. Payouts under the plan begin after the threshold level of performance is achieved. Target payout occurs when results reach targeted performance expectations and the maximum payout occurs if results reach the stretch targets.
Payouts at the target performance level are based on a percentage of employee eligible earnings. Eligible earnings include regular base pay and eligible overtime pay for the period in which an employee is a participant in the plan, including, but not limited to, hours worked during a normal workday, PTO, short term disability, holiday pay, jury duty pay, bereavement pay and shift differentials.
If target performance is achieved, 100% of the calculated payout is eligible to be paid under the program. If stretch performance is achieved, 200% of the calculated payout is eligible to be paid. The calculated payout percentage for performance between threshold and target, or between target and stretch, will be prorated.
Fifty percent (50%) of the calculated payout is subject to a personal performance adjustment. The personal performance adjustment applied to that 50% of the calculated payment can range from 0% of that 50% to 200% of that 50%.
Eligible employees begin participating in the plan on the first day of employment in the plan year. To be eligible to receive an award, an employee must be employed during the plan year including the last day of the plan year and through the time the award is actually paid. Exceptions to this requirement will be made where a participants employment is terminated as a result of retirement or death, or the participant becomes eligible for long-term disability after the first day of the plan year but before the award is paid. Such employees will be eligible for a prorated award based on the portion of the year worked prior to the employment termination event. A participant whose employment is terminated anytime prior to the distribution of the award under any other circumstances is not eligible for an award.
Exhibit 14(a)
Code of Ethics for Senior Officers*
In my role as principal executive officer, Chief Executive Officer and President of Magellan GP, LLC (the Company), the general partner of Magellan Midstream Partners, L.P. (the Partnership), I recognize that my position holds an important and elevated role in the governance of the Partnership. I am uniquely capable and empowered to ensure that stakeholders interests are appropriately balanced, protected and preserved. Accordingly, this Code of Ethics for Senior Officers (Code) provides the following principles and responsibilities governing my professional and ethical conduct, and to which I am expected to adhere and advocate.
I certify that I adhere to and advocate:
1. | Honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; |
2. | Avoidance of conflicts of interest, including disclosure to the Chairman of the Audit Committee of the Company, and where applicable to the Chairman of the Conflicts Committee of the Company (as determined by the Agreement of Limited Partnership of the Partnership and the Limited Liability Company Agreement of the Company, then in effect) of any material transaction or relationship that reasonably could be expected to give rise to such a conflict; |
3. | Full, fair, accurate, timely and understandable disclosure in reports and documents that the Partnership files with, or submits to, the U. S. Securities and Exchange Commission and in other public communications made by the Company and the Partnership; |
4. | Compliance with applicable governmental laws, rules and regulations; |
5. | The prompt internal reporting of Code violations to the Chairman of the Audit Committee of the Company; and |
6. | Accountability for adherence to the Code. |
/s/ Don R. Wellendorf |
Don R. Wellendorf |
Dated: September 1, 2003
* Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer
Exhibit 14(b)
Code of Ethics for Senior Officers*
In my role as principal financial and accounting officer, Chief Financial Officer and Treasurer of Magellan GP, LLC (the Company), the general partner of Magellan Midstream Partners, L.P. (the Partnership), I recognize that my position holds an important and elevated role in the governance of the Partnership. I am uniquely capable and empowered to ensure that stakeholders interests are appropriately balanced, protected and preserved. Accordingly, this Code of Ethics for Senior Officers (Code) provides the following principles and responsibilities governing my professional and ethical conduct, and to which I am expected to adhere and advocate.
I certify that I adhere to and advocate:
1. | Honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; |
2. | Avoidance of conflicts of interest, including disclosure to the Chairman of the Audit Committee of the Company, and where applicable to the Chairman of the Conflicts Committee of the Company (as determined by the Agreement of Limited Partnership of the Partnership and the Limited Liability Company Agreement of the Company, then in effect) of any material transaction or relationship that reasonably could be expected to give rise to such a conflict; |
3. | Full, fair, accurate, timely and understandable disclosure in reports and documents that the Partnership files with, or submits to, the U. S. Securities and Exchange Commission and in other public communications made by the Company and the Partnership; |
4. | Compliance with applicable governmental laws, rules and regulations; |
5. | The prompt internal reporting of Code violations to the Chairman of the Audit Committee of the Company; and |
6. | Accountability for adherence to the Code. |
/s/ John D. Chandler |
John D. Chandler |
Dated: September 1, 2003
* Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer
EXHIBIT 21
LIST OF SUBSIDIARIES AS OF DECEMBER 31, 2003
Magellan GP, LLC, a Delaware limited liability company and the general partner of the Registrant
Magellan Midstream Partners, L.P., a Delaware limited partnership and the Registrant
Magellan Pipeline Company, LLC, a Delaware limited liability company
Magellan GP, Inc., a Delaware corporation
Magellan OLP, L.P., a Delaware limited partnership
Magellan NGL, LLC, a Delaware limited liability company
Magellan Ammonia Pipeline, L.P., a Delaware limited partnership
Magellan Asset Services, L.P., a Delaware limited partnership
Magellan Pipelines Holdings, L.P., a Delaware limited partnership
Magellan Terminals Holdings, L.P., a Delaware limited partnership
Exhibit 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-71670) pertaining to the Fourth Amended and Restated Magellan Midstream Partners Long-Term Incentive Plan dated February 3, 2004 and in the Registration Statements (Form S-3 File No. 333-83952 and Form S-3 File No. 333-109732) of Magellan Midstream Partners, L.P. of our report dated March 8, 2004, with respect to the consolidated financial statements of Magellan Midstream Partners, L.P. and of our report dated March 8, 2004 with respect to the consolidated balance sheet of Magellan GP, LLC, both of which are included in this Annual Report (Form 10-K) for the year ended December 31, 2003.
/s/ Ernst & Young LLP
Tulsa, Oklahoma
March 8, 2004
Exhibit 24
MAGELLAN GP, LLC
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned individuals, in their capacity as a director or officer, or both, as hereinafter set forth below their signature, of Magellan GP, LLC (the Company), a Delaware limited liability company, as general partner of Magellan Midstream Partners, L.P. (the Partnership), does hereby constitute and appoint LONNY E. TOWNSEND, JOHN D. CHANDLER and SUZANNE H. COSTIN as their true and lawful attorneys and each of them (with full power to act without the other) their true and lawful attorneys for them and in their name and in their capacity as a director or officer, or both, of Magellan GP, LLC, as hereinafter set forth below their signature, to sign the Partnerships Annual Report to the Securities and Exchange Commission on Form 10-K for the fiscal year ended December 31, 2003, and any and all amendments thereto or all instruments necessary or incidental in connection therewith; and
THAT the undersigned Company does hereby constitute and appoint LONNY E. TOWNSEND, JOHN D. CHANDLER and SUZANNE H. COSTIN its true and lawful attorneys and each of them (with full power to act without the other) its true and lawful attorney for it and in its name and on its behalf to sign said Form 10-K and any and all amendments thereto and any and all instruments necessary or incidental in connection therewith.
Each of said attorneys shall have full power of substitution and resubstitution, and said attorneys or any of them or any substitute appointed by any of them hereunder shall have full power and authority to do and perform in the name and on behalf of each of the undersigned, in any and all capacities, every act whatsoever requisite or necessary to be done in the premises, as fully to all intents and purposes as each of the undersigned might or could do in person, the undersigned hereby ratifying and approving the acts of said attorneys or any of them or of any such substitute pursuant hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF the undersigned have executed this instrument as of the 3 rd day of February, 2004.
/s/ Patrick C. Eilers |
/s/ Justin S. Huscher |
|||
Patrick C. Eilers Director |
Justin S. Huscher Director |
|||
/s/ Pierre F. Lapeyre, Jr. |
/s/ David M. Leuschen |
|||
Pierre F. Lapeyre, Jr. Director |
David M. Leuschen Director |
|||
/s/ James R. Montague |
/s/ George A. OBrien, Jr. |
|||
James R. Montague Director |
George A. OBrien, Jr. Director |
|||
/s/ Mark G. Papa |
/s/ Don R. Wellendorf |
|||
Mark G. Papa Director |
Don R. Wellendorf Chairman of the Board |
Magellan Midstream Partners, L.P. |
||
By: Magellan GP, LLC, its General Partner |
||
By: |
/s/ Don R. Wellendorf |
|
Name: |
Don R. Wellendorf |
|
Title: |
President and Chief Executive Officer |
|
(Principal Executive Officer) |
||
By: |
/s/ John D. Chandler |
|
Name: |
John D. Chandler |
|
Title: |
Chief Financial Officer and Treasurer |
|
(Principal Financial and Accounting Officer) |
ATTEST: |
/s/ Suzanne H. Costin |
Suzanne H. Costin |
Secretary |
MAGELLAN GP, LLC
I, the undersigned, SUZANNE H. COSTIN, Secretary of Magellan GP, LLC, a Delaware limited liability company (the Company) and general partner of Magellan Midstream Partners, L.P. (the Partnership), do hereby certify that the Board of Directors of the Company at a meeting held February 3, 2004, at which a quorum was present and acting throughout, unanimously adopted the following resolution:
RESOLVED that the Chief Executive Officer, the President, the Chief Financial Officer or any Vice President of Magellan GP, LLC, acting in its capacity as the general partner of Magellan Midstream Partners, L.P. (the Partnership), be, and each of them hereby is, authorized to execute a Power of Attorney for use in connection with the execution and filing of the Partnerships Annual Report on Form 10-K for the fiscal year ended December 31, 2003, as required by the Securities Exchange Act of 1934.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of Magellan GP, LLC this 10th day of March, 2004.
Magellan GP, LLC |
||||
(Seal) |
By: |
/s/ Suzanne H. Costin |
||
Suzanne H. Costin
|
Exhibit 31(a)
CERTIFICATION
I, Don R. Wellendorf, principal executive officer of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P., certify that:
1. I have reviewed this annual report on Form 10-K of Magellan Midstream Partners, L.P. (the registrant);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) [Reserved];
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of director (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: March 10, 2004
/s/ Don R. Wellendorf |
Don R. Wellendorf, principal executive officer |
Exhibit 31(b)
CERTIFICATION
I, John D. Chandler, principal financial and accounting officer of Magellan GP, LLC, general partner of Magellan Midstream Partners, L.P., certify that:
1. I have reviewed this annual report on Form 10-K of Magellan Midstream Partners, L.P. (the registrant);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) [Reserved];
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of director (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: March 10, 2004
/s/ John D. Chandler |
John D. Chandler, principal financial and accounting officer |
Exhibit 32(a)
The following certification shall not be deemed filed for purposes of Section 18 of the Exchange Act or otherwise subject to
the liability of that section. Such certification will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates it by
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of Magellan Midstream Partners, L.P. (the Partnership) for the fiscal year ending December 31, 2003, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Don R. Wellendorf, Chief Executive Officer of Magellan GP, LLC, the General Partner of the Partnership, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership.
/s/ Don R. Wellendorf |
Don R. Wellendorf, Chief Executive Officer |
Date: March 10, 2004 |
A signed original of this written statement required by Section 906 has been provided to the Partnership and will be retained by the Partnership and furnished to the Securities and Exchange Commission or its staff upon request
Exhibit 32(b)
The following certification shall not be deemed filed for purposes of Section 18 of the Exchange Act or otherwise subject to
the liability of that section. Such certification will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates it by
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of Magellan Midstream Partners, L.P. (the Partnership) for the fiscal year ending December 31, 2003, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, John D. Chandler, Chief Financial Officer of Magellan GP, LLC, the General Partner of the Partnership, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership.
/s/ John D. Chandler |
John D. Chandler, Chief Financial Officer |
Date: March 10, 2004 |
A signed original of this written statement required by Section 906 has been provided to the Partnership and will be retained by the Partnership and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 99
REPORT OF INDEPENDENT AUDITORS
The Board of Directors of Magellan GP, LLC
We have audited the accompanying consolidated balance sheets of Magellan GP, LLC as of December 31, 2003 (Successor basis) and December 31, 2002 (Predecessor basis). The consolidated balance sheets are the responsibility of the Companys management. Our responsibility is to express an opinion on the consolidated balance sheets based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated balance sheets are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the balance sheets. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall balance sheet presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated balance sheets referred to above presents fairly, in all material respects, the consolidated financial position of Magellan GP, LLC at December 31, 2003 (Successor basis) and December 31, 2002 (Predecessor basis) in conformity with accounting principles generally accepted in the United States.
/s/ Ernst & Young LLP
Tulsa, Oklahoma
March 8, 2004
MAGELLAN GP, LLC
CONSOLIDATED BALANCE SHEETS
(In thousands)
December 31,
|
||||||||
2002
|
2003
|
|||||||
(Predecessor) | (Successor) | |||||||
ASSETS | ||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 75,738 | $ | 111,357 | ||||
Restricted cash |
4,942 | 8,223 | ||||||
Accounts receivable (less allowance for doubtful accounts of $457 and $319 at December 31, 2002 and 2003, respectively) |
18,038 | 19,615 | ||||||
Other accounts receivable |
6,619 | 14,579 | ||||||
Affiliate accounts receivable |
15,608 | 13,729 | ||||||
Inventory |
5,224 | 17,282 | ||||||
Other current assets |
4,449 | 3,941 | ||||||
|
|
|
|
|
|
|||
Total current assets |
130,618 | 188,726 | ||||||
Property, plant and equipment, at cost |
1,334,527 | 1,587,489 | ||||||
Less: accumulated depreciation |
401,396 | 204,715 | ||||||
|
|
|
|
|
|
|||
Net property, plant and equipment |
933,131 | 1,382,774 | ||||||
Goodwill |
22,295 | 10,014 | ||||||
Other intangibles (less amortization of $297 and $911 at December 31, 2002 and 2003, respectively) |
2,432 | 11,417 | ||||||
Long-term affiliate receivables |
11,656 | 12,402 | ||||||
Long-term receivables |
9,268 | 8,867 | ||||||
Debt placement costs (less accumulated amortization of $960 and $1,550 at December 31, 2002 and 2003, respectively |
10,543 | 5,937 | ||||||
Other noncurrent assets |
1,873 | 3,113 | ||||||
|
|
|
|
|
|
|||
Total assets |
$ | 1,121,816 | $ | 1,623,250 | ||||
|
|
|
|
|
|
|||
LIABILITIES AND OWNERS EQUITY | ||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | 17,024 | $ | 21,199 | ||||
Affiliate accounts payable |
28,555 | | ||||||
Outstanding checks |
1,967 | 6,961 | ||||||
Accrued affiliate payroll and benefits |
7,065 | 15,077 | ||||||
Accrued taxes other than income |
13,698 | 14,286 | ||||||
Accrued interest payable |
4,065 | 8,196 | ||||||
Environmental liabilities |
10,359 | 12,243 | ||||||
Deferred revenue |
11,550 | 10,868 | ||||||
Accrued product purchases |
2,924 | 11,585 | ||||||
Current portion of long-term debt |
| 900 | ||||||
Other current liabilities |
4,535 | 5,616 | ||||||
|
|
|
|
|
|
|||
Total current liabilities |
101,742 | 106,931 | ||||||
Long-term debt |
570,000 | 580,017 | ||||||
Long-term affiliate payable |
450 | | ||||||
Affiliate pension liability |
| 3,735 | ||||||
Affiliate long-term retiree medical liability |
| 9,973 | ||||||
Other deferred liabilities |
4,516 | 11,290 | ||||||
Environmental liabilities |
11,927 | 12,861 | ||||||
Minority interest |
340,023 | 465,719 | ||||||
Commitments and contingencies |
||||||||
Owners equity |
94,129 | 433,014 | ||||||
Accumulated other comprehensive loss |
(971 | ) | (290 | ) | ||||
|
|
|
|
|
|
|||
Total liabilities and owners equity |
$ | 1,121,816 | $ | 1,623,250 | ||||
|
|
|
|
|
|
See accompanying notes.
2
MAGELLAN GP, LLC
NOTES TO CONSOLIDATED BALANCE SHEETS
1. Organization and Presentation
Magellan Midstream Partners, L.P. (the Partnership) was formed in August 2000, as Williams Energy Partners L.P., a Delaware limited partnership, to own, operate and acquire a diversified portfolio of complementary energy assets. The Williams Companies, Inc. (Williams) formed Williams Energy Partners L.P. by contributing entities under its common control into the Partnership. Williams Energy Partners L.P. was renamed Magellan Midstream Partners, L.P. effective September 1, 2003. Magellan GP, LLC, formerly, WEG GP LLC, is the managing general partner of the Partnership. WEG GP LLC was renamed Magellan GP, LLC effective September 1, 2003.
Magellan GP, LLC (Successor), formerly WEG GP LLC (Predecessor), was acquired by Magellan Midstream Holdings, L.P. (MMH) on June 17, 2003, (see Note 3 Change in Ownership of Magellan GP, LLC) in a purchase business combination recorded under the push-down method of accounting, which resulted in a new basis of accounting for the Successor period beginning June 17, 2003. Information relating to all Predecessor periods prior to June 17, 2003 is presented using the historical basis of accounting.
At the time of the Partnerships initial public offering in February 2001, the Partnership owned the petroleum products terminals system and an ammonia pipeline system. On April 11, 2002, the Partnership acquired all of the membership interests of Magellan Pipeline Company (Magellan Pipeline) for approximately $1.0 billion (see Note 5 Acquisitions and Divestitures). Because Magellan Pipeline was an affiliate of the Partnership at the time of the acquisition, the transaction was between entities under common control and, as such, was accounted for similarly to a pooling of interests. Accordingly, the consolidated balance sheets and accompanying notes of Magellan GP, LLC reflect the combined historical financial position of the petroleum products terminals system, ammonia pipeline system and Magellan Pipeline throughout the periods presented.
On April 11, 2002, the Partnership issued 7,830,924 class B common units representing limited partner interests to an affiliate of Williams. The securities were valued at $304.4 million and along with $6.2 million of additional general partner equity interests, were issued as partial payment for the acquisition of Magellan Pipeline (See Note 5 Acquisitions and Divestitures). The Partnership redeemed all of these class B common units in December 2003 for an equivalent number of common units.
In May 2002, the Partnership issued 8.0 million common units representing limited partner interests in the Partnership at a price of $37.15 per unit for total proceeds of $297.2 million. Associated with this offering, Williams contributed $6.1 million to the Partnership to maintain its 2% general partner interest. A portion of the total proceeds was used to pay underwriting discounts and commissions of $12.6 million. Legal, professional fees and costs associated with this offering were approximately $1.7 million. The remaining cash proceeds of $289.0 million were used to partially repay the $700.0 million short-term note assumed by the Partnership to help finance the Magellan Pipeline acquisition (see Note 11 Debt).
In December 2003, the Partnership issued 200,00 common units representing limited partner interests in the Partnership at a price of $50.00 per unit for total proceeds of $10.0 million. Associated with this offering, Magellan GP, LLC contributed $0.2 million to the Partnership to maintain its 2% general partnership interest. Of the proceeds received, $0.4 million was used to pay underwriting discounts and commissions. Legal, professional and other costs directly associated with this offering were approximately $0.1 million. The remaining cash proceeds of $9.7 million will be used for general partnership purposes.
The historical results for Magellan Pipeline include assets and liabilities that were conveyed to and assumed by an affiliate of Williams prior to the acquisition of Magellan Pipeline by the Partnership. The assets principally included Magellan Pipelines interest in and agreements related to Longhorn Partners Pipeline, L.P., an inactive refinery site at Augusta, Kansas, a pipeline construction project and the ATLAS 2000 software system. The liabilities principally included the environmental liabilities associated with the inactive refinery site in Augusta, Kansas and current and deferred income taxes and an affiliate note payable. The current and deferred income taxes and the affiliate note payable were contributed to the Partnership in the form of a capital contribution by an affiliate of Williams. The ATLAS 2000 software system assets were contributed to the Partnership on June 17, 2003, in conjunction with the sale of Williams interest in the Partnership (See Note 3 - Change in Ownership of Magellan GP, LLC).
2. Description of Businesses
Magellan GP, LLC serves as managing general partner for the Partnership. The Partnership owns and operates a petroleum products pipeline system, petroleum products terminals and an ammonia pipeline system.
Petroleum Products Pipeline System
The petroleum products pipeline system includes Magellan Pipeline, which covers an 11-state area extending from Oklahoma through the Midwest to North Dakota, Minnesota and Illinois. The system includes 6,700 miles of pipeline and 39 terminals that
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provide transportation, storage and distribution services. The products transported on the Magellan Pipeline system are largely petroleum products, including gasoline, diesel fuels, LPGs and aviation fuels. Product originates on the system from direct connections to refineries and interconnects with other interstate pipelines for transportation and ultimate distribution to retail gasoline stations, truck stops, railroads, airlines and other end-users.
Petroleum Products Terminals
Most of the Partnerships petroleum products terminals are strategically located along or near third party pipelines or petroleum refineries. The petroleum products terminals provide a variety of services such as distribution, storage, blending, inventory management and additive injection to a diverse customer group including governmental customers and end-users in the downstream refining, retail, commercial trading, industrial and petrochemical industries. Products stored in and distributed through the petroleum products terminal network include refined petroleum products, blendstocks and heavy oils and feedstocks. The terminal network consists of marine terminal facilities and inland terminals. Four marine terminal facilities are located along the Gulf Coast and one marine terminal facility is located in Connecticut near the New York harbor. The inland terminals are located primarily in the southeastern United States. See Note 18 Subsequent Events for a discussion of terminal acquisitions completed after December 31, 2003.
Ammonia Pipeline System
The ammonia pipeline system consists of an ammonia pipeline and six company-owned terminals. Shipments on the pipeline primarily originate from ammonia production plants located in Borger, Texas and Enid and Verdigris, Oklahoma for transport to terminals throughout the Midwest for ultimate distribution to end-users in Iowa, Kansas, Minnesota, Missouri, Nebraska, Oklahoma, South Dakota and Texas. The ammonia transported through the system is used primarily as nitrogen fertilizer.
3. Change in Ownership of Magellan GP, LLC
On June 17, 2003, Williams sold its ownership of 1,079,694 common units, 5,679,694 subordinated units and 7,830,924 class B common units of the Partnership and all of the membership interests of Magellan GP LLC, formerly WEG GP LLC, to MMH, a Delaware limited partnership, formed by Madison Dearborn Capital Partners IV, L.P. and Carlyle/Riverstone MLP Holdings, L.P.
Purchase Price
MMH paid Williams approximately $509.9 million on the closing date. The purchase price for the acquisition also consisted of the following:
| A second payment of $1.9 million, made in August 2003, based on the amount of the first regular quarterly cash distribution received by MMH; |
| A third payment, based on a percentage of the net proceeds in excess of $37.50 per unit from the sale, if any, by MMH of the first 5,000,000 common units or Class B common units after June 17, 2003, up to a maximum payment of $20.0 million. MMH sold 4,300,000 common units of the Partnership on December 24, 2003 and remitted $20.0 million of the proceeds from that sale to Williams. |
| MMHs assumption on June 17, 2003, of the obligations of Williams Energy Services, LLC (WES), a subsidiary of Williams, to indemnify Magellan GP, LLC, the Partnership and the Partnerships subsidiaries for certain environmental remediation obligations in an aggregate amount of up to approximately $21.9 million. The Partnerships environmental indemnities with Williams, as described under new Omnibus Agreement below and in Note 14 Commitments and Contingencies, are still in effect; however, MMH is responsible for certain identified environmental matters up to approximately $21.9 million. The amount was previously recorded by the Partnership as a receivable from Williams. MMH assumed this obligation as part of its negotiations with Williams and reduced the purchase price it paid for Williams ownership interest in the Partnership accordingly. If MMHs costs associated with these environmental obligations and other Williams indemnities are less than $21.9 million, MMH will be required to remit the difference to Williams. |
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Allocation of Purchase Price
Magellan GP, LLC has recorded a step-up in basis of the assets of the Partnership as a result of MMHs purchase of Williams ownership interests in the partnership. MMHs second and third payments to Williams of $1.9 million in August 2003 and $20.0 million in December 2003, respectively are reflected in the purchase price. The step-up in basis of the assets of the Partnership includes adjustments to reflect the fair market value for MMHs 54.6% proportional ownership interest in the asset and liabilities of the Partnership acquired on June 17, 2003. The initial purchase price, allocations to assets acquired and liabilities assumed and the step-up in basis of assets was as follows (in millions):
Purchase Price: |
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Cash paid |
$ | 531.8 | ||
Transaction costs paid |
3.2 | |||
Liabilities assumed: |
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Union pension plan |
3.7 | |||
Post-retirement medical and life benefits |
10.0 | |||
Environmental |
21.9 | |||
Paid time off accrual |
5.4 | |||
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|
|
||
Total liabilities assumed |
41.0 | |||
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|
|
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Total purchase price |
$ | 576.0 | ||
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|
|
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Allocation of Purchase Price: |
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Cash and cash equivalents |
$ | 44.5 | ||
Restricted cash |
3.0 | |||
Accounts receivable |
13.9 | |||
Other current assets |
14.5 | |||
Property, plant and equipment |
860.0 | |||
Other noncurrent assets |
12.9 | |||
Accounts payable |
(9.5 | ) | ||
Accrued taxes other than income |
(6.8 | ) | ||
Deferred revenue |
(3.0 | ) | ||
Other current liabilities |
(19.2 | ) | ||
Long-term debt |
(323.5 | ) | ||
Other deferred liabilities |
(10.8 | ) | ||
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|
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Total |
$ | 576.0 | ||
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Step-Up In Basis of Assets: |
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Cash paid, including transaction costs |
$ | 535.0 | ||
Consolidated Magellan GP, LLC basis in net assets at June 17, 2003 |
143.5 | |||
|
|
|
||
Step-up in basis of assets |
$ | 391.5 | ||
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|
|
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Fair market value adjustments: |
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Property, plant and equipment |
$ | 444.1 | ||
Retiree medical liability |
(10.0 | ) | ||
Long-term debt |
(12.2 | ) | ||
Debt issuance costs |
(5.3 | ) | ||
Paid time off accrual |
(5.5 | ) | ||
Pension liability |
(3.7 | ) | ||
Goodwill |
(12.0 | ) | ||
Other |
(3.9 | ) | ||
|
|
|
||
Step-up in basis of assets |
$ | 391.5 | ||
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|
|
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ATLAS 2000 Agreement
As part of the overall sales transaction between Williams and MMH, an affiliate of Williams assigned its rights to, and interest in, the ATLAS 2000 software system and associated hardware to the Partnership.
Services Agreement
Prior to June 17, 2003, the Partnership had been a party to a services agreement with Williams and its affiliates whereby Williams and its affiliates agreed to perform specified services, including providing necessary employees to operate the Partnerships assets. On June 17, 2003, Williams exercised its right to terminate this services agreement effective September 15, 2003. During a transition period after June 17, 2003, the employees that managed the Partnerships operations continued to be employees of Williams and its affiliates and, until the employees were transferred to MMH, provided services to the Partnership under a transition services agreement (TSA) entered into as a part of the sales transaction between Williams and MMH. Under the provisions of the TSA, Williams was to provide specified technical, commercial, information system and administrative services to the Partnership for a monthly fee. All of the Williams employees assigned to the Partnership were transferred to MMH on or before January 1, 2004. MMH and Williams agreed to extend specific portions of the TSA relating to a financial system, software licenses and record storage beyond January 1, 2004. The financial system extension was terminated at the end of January 2004. The software licenses extension will terminate when all licenses are transferred to Magellan and the record storage extension will terminate in March 2004.
On June 17, 2003, the Partnership entered into a new services agreement with MMH pursuant to which MMH has agreed to perform specified services, including providing necessary employees to operate our assets after the transition period described above. In return, the Partnership will reimburse MMH for its direct and indirect expenses incurred in providing these services, subject to the limitations on reimbursement of general and administrative expenses discussed under the New Omnibus Agreement section below. MMH has the right to terminate its obligations under this new services agreement upon 90 days written notice.
New Omnibus Agreement
Also, in conjunction with the sale of Williams interests in the Partnership, MMH, Williams and certain of Williams affiliates entered into a new Omnibus Agreement, the terms of which include the items listed below:
| Williams and certain of its affiliates have indemnified the Partnership for covered environmental losses related to assets operated by the Partnership at the time of its initial public offering date (February 9, 2001) that become known by February 9, 2004 and that exceed amounts recovered or recoverable under the Partnerships contractual indemnities from third persons or under any applicable insurance policies. However, Williams obligations under this indemnity are limited to $13.3 million, which represents the $15.0 million indemnity provided under the old omnibus agreement less amounts paid by Williams prior to June 17, 2003 under that agreement. Covered environmental losses are those non-contingent terminal and ammonia system environmental losses, costs, damages and expenses suffered or incurred by the Partnership arising from correction of violations of or performance of remediation required by environmental laws in effect at February 9, 2001, due to events and conditions associated with the operation of the assets and occurring before February 9, 2001. |
| Williams and certain of its affiliates have indemnified the Partnership for right-of-way defects or failures in the ammonia pipeline easements for 15 years after February 9, 2001. Williams and certain of its affiliates have also indemnified the Partnership for right-of-way defects or failures associated with the marine facilities at Galena Park and Corpus Christi, Texas and Marrero, Louisiana for 15 years after February 9, 2001. |
| The Partnership will pay MMH for direct and indirect general and administrative expenses incurred by MMH on behalf of the Partnership, subject to a reimbursement limitation as described below: |
| The reimbursement obligation is subject to a lower cap amount, which is calculated as follows: |
| For the period of June 18, 2003 through December 31, 2003, MMH will reimburse the Partnership for general and administrative costs in excess of a lower cap amount of approximately $20.5 million, which represents an annual reimbursement amount of $37.9 million pro-rated for the period from June 18, 2003 through December 31, 2003; |
| For each succeeding fiscal year following 2003, the $37.9 million reimbursement amount will be adjusted by the greater of: (i) 7%, or (ii) the percentage increase in the Consumer Price Index All Urban Consumers, U.S. City Average, Not Seasonally Adjusted. However, the reimbursement amount will also be adjusted as applicable during 2003 and subsequent periods for acquisitions, construction projects, capital improvements, replacements or expansions that the Partnership completes that are expected to increase the Partnerships general and administrative costs; |
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| The reimbursement limitation expires on December 31, 2010. Additionally, the expense reimbursement limitation excludes: (i) expenses associated with equity-based incentive compensation plans and (ii) implementation costs associated with changing the name of the Partnership and expenses and capital expenditures associated with transitioning the assets, operations or employees from Williams to MMH or the Partnership. |
| The reimbursement limitation is further subject to an upper cap amount. MMH is not required to reimburse the Partnership for any general and administrative expenses that exceed this upper cap amount. The upper cap is calculated as follows: |
| For the period of June 18, 2003 through December 31, 2003, the upper cap will be approximately $26.6 million, which represents an annual upper cap amount of $49.3 million pro-rated for the period from June 18, 2003 through December 31, 2003; |
| For each succeeding fiscal year after 2003, the upper cap will be increased annually by the lesser of: (i) 2.5%, or (ii) the percentage increase in the Consumer Price Index All Urban Consumers, U.S. City Average, Not Seasonally Adjusted. The upper cap will also be adjusted as applicable during 2003 and subsequent periods for acquisitions, construction projects, capital improvements, replacements or expansions that the Partnership completes that are expected to increase the Partnerships general and administrative costs. |
| For the twelve months immediately following the transaction close date of June 17, 2003, Williams has agreed to reimburse MMH for any and all general and administrative expenses incurred by or on behalf of the Partnership in excess of the upper cap amount, if any. |
| For the period June 18, 2003 through December 31, 2003, the Partnerships general and administrative costs did not exceed the upper cap amount. |
| Williams has agreed to reimburse the Partnership in each of the Partnerships 2003 and 2004 fiscal years for any reasonable and customary maintenance capital expenditures to maintain the assets of Magellan Pipeline, in either year, in excess of $19.0 million per year, subject to an aggregate reimbursement limitation of $15.0 million. Magellan Pipelines maintenance capital expenditures in 2003 were less than $19.0 million. |
Other Matters
| In connection with Williams sale of its interests in the Partnership, six of the seven directors resigned from the board of directors of Magellan GP, LLC and four directors affiliated with MMH were appointed to Magellan GP, LLCs board. In addition, three independent directors were appointed to Magellan GP, LLCs board during 2003. One of the independent directors appointed in 2003, George OBrien, Jr. serves as the financial expert on the Boards Audit Committee. |
| Also, subsequent to the closing of the transaction, MMH, as the holder of the Partnerships class B common units, exercised its rights under our partnership agreement to require the Partnership to solicit the approval of the Partnerships common unitholders for the conversion of the class B common units into an equal number of common units and the resulting issuance of an aggregate of 7,830,924 common units upon the conversion and cancellation of the 7,830,924 class B common units. The vote on this proposal was completed at the November 2003 annual meeting of limited partners and the class B common units were converted into an equivalent number of common units on December 1, 2003. |
| Upon the closing of the transaction, MMH, as the sole member of Magellan GP, LLC, entered into the Second Amendment to Limited Liability Company Agreement of Magellan GP, LLC, which, among other matters, provided for the single-member status of Magellan GP, LLC as of June 17, 2003. Also, upon the closing of the transaction, the Board of Directors of Magellan GP, LLC, adopted the Third Amendment to Limited Liability Company Agreement which, among other provisions, requires Magellan GP, LLC to obtain the prior approval of MMH before taking certain actions that would have, or would reasonably be expected to have a direct or indirect material affect on MMHs membership interest in Magellan GP, LLC. Examples of the type of matters discussed in the previous sentence are: (i) commencement of any action relating to bankruptcy or bankruptcy-related matters by the Partnership, (ii) mergers, consolidations, recapitalization or similar |
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transactions involving the Partnership, (iii) the sale, exchange or other transfer of assets not in the ordinary course of business of a substantial portion of the assets of the Partnership, (iv) dissolution or liquidation of the Partnership, (v) material amendments of the partnership agreement, and (vi) a material change in the amount of the quarterly distribution made on the common units of the Partnership or the payment of a material extraordinary distribution. |
| Upon closing of the transaction, Williams indemnified the Partnership against any environmental losses, breaches of representations and warranties, rights-of-way losses and tax matters incurred from February 9, 2001 through June 17, 2003 for assets included in the Partnerships initial public offering and from April 2002 through June 17, 2003 for Magellan Pipeline assets as well as other items not covered by Williams preexisting indemnities of the Partnership in the amount of $175.0 million. The indemnity limitations are discussed above and in Note 14 Commitments and Contingencies. |
MMH assumed sponsorship of the Magellan Pension Plan for PACE Employees (Union Pension Plan), previously named the Williams Pipe Line Company Pension Plan for Hourly Employees, upon transfer of the union employees from Williams to MMH on January 1, 2004. The Partnership will be required to reimburse MMH for its obligations associated with the post-retirement medical and life benefits for qualifying individuals assigned to the Partnership. The Partnership will recognize its reimbursement obligations to MMH associated with the Union Pension Plan and the post-retirement medical and life benefits over the remaining average service lives of the applicable employees (see Note 4 Summary of Significant Accounting Policies).
4. Summary of Significant Accounting Policies
Basis of Presentation
At December 31, 2003, Magellan GP, LLC had an effective ownership in the Partnership of 38.8%. This effective ownership was derived through its 2.0% general partner ownership, which gives it control of the Partnership, and its affiliates, who owned 36.8% of the limited partnership interests. The Partnership is fully consolidated in Magellan GP, LLCs balance sheet. During January 2004, affiliates of Magellan GP, LLC sold 675,000 units of the Partnership, which reduced Magellan GP, LLCs effective ownership in the Partnership to 36.4%, including its 2% general partner ownership interest (see Note 16 Subsequent Events).
The consolidated balance sheet includes the petroleum products pipeline system, the petroleum products terminals and the ammonia pipeline system. For 11 of these petroleum products terminals, the Partnership owns varying undivided ownership interests. From inception, ownership of these assets has been structured as an ownership of an undivided interest in assets, not as an ownership interest in a partnership, limited liability company, joint venture or other form of entity. Each owner controls marketing and invoicing separately, and each owner is responsible for any loss, damage or injury that may occur to their own customers. As a result, the Partnership applies proportionate consolidation for its interests in these assets. In January 2004, the Partnership acquired the remaining ownership interests in 8 of these terminals (see Note 16 Subsequent Events).
Reclassifications
Certain previously reported balances have been classified differently to conform with current year presentation.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the amounts reported in the consolidated balance sheets and accompanying notes. Actual results could differ from those estimates.
Regulatory Reporting
Magellan Pipeline is regulated by the Federal Energy Regulatory Commission (FERC), which prescribes certain accounting principles and practices for the annual Form 6 Report filed with the FERC that differ from those used in these balance sheets. Such differences relate primarily to capitalization of interest, accounting for gains and losses on disposal of property, plant and equipment and other adjustments. The Partnership follows generally accepted accounting principles where such differences of accounting principles exist.
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Cash Equivalents
Cash and cash equivalents include demand and time deposits and other marketable securities with maturities of three months or less when acquired. The carrying amount of cash and cash equivalents approximates fair value of those instruments due to their short maturity.
Inventory Valuation
Inventory is comprised primarily of refined products, natural gas liquids and materials and supplies. Refined products and natural gas liquids inventories are stated at the lower of average cost or market. The average cost method is used for materials and supplies.
Trade Receivables
Trade receivables are recognized when products are sold or services are rendered. An allowance for doubtful accounts is established for all amounts where collections are considered to be at risk and reserves are evaluated no less than quarterly to determine their adequacy. Judgments relative to at risk accounts include the customers current financial condition, the customers historical relationship with the Partnership and current and projected economic conditions. Trade receivables are written off when the account is deemed uncollectible.
Property, Plant and Equipment
Property, plant and equipment are stated at cost. Expenditures for maintenance and repairs are charged to operations in the period incurred. Depreciation of property, plant and equipment is provided on the straight-line basis. The cost of property, plant and equipment sold or retired and the related accumulated depreciation is removed from the accounts, and any associated gains or losses are recorded in the income statement, in the period of sale or disposition.
Goodwill and Other Intangible Assets
Magellan GP, LLC has adopted Statement of Financial Accounting Standard (SFAS) No. 142, Goodwill and Other Intangible Assets. In accordance with this Statement, beginning on January 1, 2002, goodwill, which represents the excess of cost over fair value of assets of businesses acquired, is no longer amortized but is evaluated periodically for impairment. The determination of whether goodwill is impaired is based on managements estimate of the fair value of the Partnerships reporting units as compared to their carrying values. If an impairment were to occur, the amount of the impairment recognized would determined by subtracting the implied fair value of the reporting unit goodwill from the carrying amount of the goodwill. Other intangible assets are amortized on a straight-line basis over their estimated useful lives of 5 years up to 25 years.
Judgments and assumptions are inherent in managements estimates used to determine the fair value of its operating segments. The use of alternate judgments and/or assumptions could result in the recognition of different levels of impairment charges in the balance sheets.
Previously, goodwill was amortized on a straight-line basis over a period of 30 years for those assets acquired prior to July 1, 2001. Based on the amount of goodwill recorded as of December 31, 2001, application of the non-amortization provision of SFAS No. 142 resulted in a decrease to amortization expense in 2002 of approximately $0.8 million.
Impairment of Long-Lived Assets
In January 2002, Magellan GP, LLC adopted SFAS No. 144 Accounting for the Impairment or Disposal of Long-Lived Assets. There was no initial impact on Magellan GP, LLCs financial position upon adoption of this standard.
In accordance with this Statement, the Partnership evaluates its long-lived assets of identifiable business activities for impairment when events or changes in circumstances indicate, in managements judgment, that the carrying value of such assets may not be recoverable. The determination of whether an impairment has occurred is based on managements estimate of undiscounted future cash flows attributable to the assets as compared to the carrying value of the assets. If an impairment were to occur, the amount of the impairment recognized would be determined by estimating the fair value for the assets and recording a provision for loss if the carrying value is greater than fair value.
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For assets identified to be disposed of in the future, the carrying value of these assets is compared to the estimated fair value less the cost to sell to determine if an impairment is required. Until the assets are disposed of, an estimate of the fair value is re-determined when related events or circumstances change.
Judgments and assumptions are inherent in managements estimate of undiscounted future cash flows used to determine recoverability of an asset and the estimate of an assets fair value used to calculate the amount of impairment to recognize. The use of alternate judgments and/or assumptions could result in the recognition of different levels of impairment charges used in determining the balance sheet amounts.
Lease Financings
Direct financing leases are accounted for such that the minimum lease payments plus the unguaranteed residual value accruing to the benefit of the lessor is recorded as the gross investment in the lease. The cost or carrying amount of the leased property is recorded as unearned income. The net investment in the lease is the difference between the gross investment and the associated unearned income.
Debt Placement Costs
Costs incurred for debt borrowings are capitalized as paid and are amortized over the life of the associated debt instrument. When debt is retired before its scheduled maturity date, the Partnership writes-off the remaining debt placement costs associated with that debt.
Capitalization of Interest
Interest on borrowed funds is capitalized on projects during construction based on the approximate average interest rate on debt owed by the Partnership. Capitalized interest for the years ended December 31, 2003 and 2002 was $0.1 million and $0.2 million, respectively.
Pension and Post-retirement Medical and Life
Magellan GP, LLC has recognized affiliate pension and post-retirement medical and life obligations associated with Williams personnel, assigned to the Partnership, who became employees of MMH on or before January 1, 2004. The pension and post-retirement medical and life balances represent the funded status of the present value of benefit obligation net of unrecognized prior service cost/credits and unrecognized actuarial gains/losses.
Paid-Time Off Benefits
Affiliate liabilities for paid-time off benefits are recognized for all employees performing services for the Partnership when earned by those employees. The Partnership recognized a paid-time off liability of $5.5 million at December 31, 2003, which represented the amount of remaining vested paid-time off benefits of dedicated employees assigned to an affiliate of the Partnership, whose role is to provide operating and general and administrative services to the Partnership.
Equity-Based Incentive Compensation Awards
Magellan GP, LLC has issued incentive awards of phantom units of the Partnership to certain employees assigned to the Partnership. These awards are accounted for under provisions of Accounting Principles Board Opinion No. 25. Since the exercise price of the unit awards is less than the market price of the underlying units on the date of grant, compensation expense is recognized by Magellan GP, LLC and is directly allocated to the Partnership.
Environmental
Environmental expenditures that relate to current or future revenues are expensed or capitalized based upon the nature of the expenditures. Expenditures that relate to an existing condition caused by past operations that do not contribute to current or future revenue generation are expensed. Environmental liabilities are recorded independently of any potential claim for recovery. Receivables are recognized in cases where the realization of reimbursements of remediation costs is considered probable. Accruals related to environmental matters are generally determined based on site-specific plans for remediation, taking into account prior remediation experience of the Partnership.
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Income Taxes
Magellan GP, LLC is a partnership for income tax purposes and therefore is not subject to federal or state income taxes. Income taxes for Magellan GP, LLC are the responsibility of the owners of this partnership, which are affiliates of Magellan GP, LLC.
Effective with the closing of the Partnerships initial public offering on February 9, 2001 (see Note 1 Organization and Presentation), the Partnership was no longer a taxable entity for federal and state income tax purposes. Also, effective with its acquisition by the Partnership in April 2002, Magellan Pipeline was no longer a taxable entity for federal and state income tax purposes. Accordingly, for the petroleum products terminals and ammonia pipeline system operations, after the initial public offering, and for Magellan Pipeline after April 2002, no recognition has been given to income taxes for financial reporting purposes. The tax on Partnership net income is borne by the individual partners through the allocation of taxable income. Net income for financial statement purposes may differ significantly from taxable income of unitholders as a result of differences between the tax basis and financial reporting basis of assets and liabilities and the taxable income allocation requirements under the Partnerships partnership agreement. The aggregate difference in the basis of the Partnerships net assets for financial and tax reporting purposes cannot be readily determined because information regarding each partners tax attributes in the Partnership is not available to the Partnership.
Recent Accounting Standards
In December 2003, the Financial Accounting Standards Board (FASB) issued a revision to SFAS No. 132 Employers Disclosures about Pensions and Other Post-Retirement Benefits. This revision requires that companies provide more details about their plan assets, benefit obligations, cash flows, benefit costs and other relevant information. A description of investment policies and strategies and target allocation percentages, or target ranges, for these asset categories also are required in financial statements. Cash flows will include projections of future benefit payments and an estimate of contributions to be made in the next year to fund pension and other postretirement benefit plans. In addition to expanded annual disclosures, the FASB is requiring companies to report the various elements of pension and other post-retirement benefit costs on a quarterly basis. The guidance is effective for fiscal years ending after December 15, 2003, and for quarters beginning after December 15, 2003.
In May 2003, the FASB issued SFAS No. 150 Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity. This Statement is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. This Statement establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify a financial instrument that is within its scope as a liability (or an asset in some circumstances). Many of those instruments were previously classified as equity. This statement had no impact on Magellan GP, LLCs financial position.
In April 2003, the FASB issued SFAS No. 149 Amendment of Statement 133 on Derivative Instruments and Hedging Activities. This Statement is effective for contracts entered into or modified after June 30, 2003, and for hedging relationships designated after June 30, 2003. In addition all provisions of this Statement should be applied prospectively. This Statement amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts (collectively referred to as derivatives) and for hedging activities under FASB Statement No. 133, Accounting for Derivative Instruments and Hedging Activities. The initial application of this Statement did not have a material impact on Magellan GP, LLCs financial position.
In December 2002, the FASB issued SFAS 148, Accounting for Stock-Based Compensation - Transition and Disclosure - an amendment of FASB Statement No. 123. This Statement amends FASB Statement No. 123, Accounting for Stock-Based Compensation, to provide alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation. In addition, this Statement amends the disclosure requirements of Statement 123 to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. This Statement improves the prominence and clarity of the pro forma disclosures required by Statement 123 by prescribing a specific tabular format and by requiring disclosure in the Summary of Significant Accounting Policies or its equivalent. The standard is effective for fiscal periods ending after December 15, 2002. Although the Partnership accounts for stock-based compensation for employees assigned to the Partnership under provisions of Accounting Principles Board Opinion No. 25, the structure of the awards is such that the Partnership fully recognizes compensation expense associated with the units awards. Hence, had the Partnership adopted this standard, it would not have had a material impact on Magellan GP, LLCs financial position.
In June 2002, the FASB issued SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities. This Statement addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies Emerging Issues Task Force (EITF) Issue No. 94-3, Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring). The provisions of this Statement are effective for exit or disposal activities that are initiated after December 31, 2002, with early application encouraged. Magellan GP, LLC adopted this standard in January 2003 and it did not have a material impact on its financial position.
11
In the second quarter of 2002, the FASB issued SFAS No. 145, Rescission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement 13 and Technical Corrections. The rescission of SFAS No. 4 Reporting Gains and Losses from Extinguishment of Debt, and SFAS No. 64, Extinguishment of Debt Made to Satisfy Sinking-Fund Requirements, requires that gains or losses from extinguishment of debt only be classified as extraordinary items in the event they meet the criteria in Accounting Principle Board Opinion (APB) No. 30, Reporting the Results of Operations Reporting the Effects of Disposal of a Segment of a Business and Extraordinary, Unusual and Infrequently Occurring Events and Transactions. SFAS No. 44, Accounting for Intangible Assets of Motor Carriers, established accounting requirements for the effects of transition to the Motor Carriers Act of 1980 and is no longer required now that the transitions have been completed. Finally, the amendments to SFAS No. 13 Accounting for Leases are effective for transactions occurring after May 15, 2002. All other provisions of this Statement will be effective for financial statements issued on or after May 15, 2002. Magellan GP, LLC adopted this standard in January 2003, and it did not have a material impact on its financial position. However, in subsequent reporting periods, any gains and losses from debt extinguishments will not be accounted for as extraordinary items.
5. Acquisitions and Divestitures
Magellan Pipeline
On April 11, 2002, the Partnership acquired all of the membership interests of Magellan Pipeline from an affiliate of Williams for approximately $1.0 billion. The Partnership remitted to an affiliate of Williams consideration in the amount of $674.4 million and Williams retained $15.0 million of Magellan Pipelines receivables. The $310.6 million balance of the consideration consisted of $304.4 million of class B common units representing limited partner interests in the Partnership issued to affiliates of Williams and Williams contribution to the Partnership of $6.2 million to maintain its 2% general partner interest. The Partnership borrowed $700.0 million from a group of financial institutions, paid an affiliate of Williams $674.4 million and used $10.6 million of the funds to pay debt fees and other transaction costs (see Note 11 Debt). The Partnership retained $15.0 million of the funds to meet working capital needs.
Magellan Pipeline primarily provides petroleum products transportation, storage and distribution services and is reported as a separate business segment of the Partnership. Because of the Partnerships affiliate relationship with Magellan Pipeline at the time of the acquisition, the transaction was between entities under common control and, as such, has been accounted for similarly to a pooling of interest. Accordingly, the consolidated balance sheets and notes of Magellan GP, LLC have been restated to reflect the historical financial positions as if the companies had been combined throughout the periods presented.
Other Acquisitions and Divestitures
In July 2003, the Partnership acquired certain rights to a petroleum products management operation from an affiliate of Williams for $10.1 million plus inventory costs of approximately $5.2 million. The $10.1 million acquisition costs were allocated to other intangibles.
During the fourth quarter of 2002, the Partnership sold its Mobile, Alabama and Jacksonville, Florida inland terminals. Total cash proceeds of approximately $1.3 million were received, with a gain of approximately $1.1 million recognized.
6. Inventories
Inventories at December 31, 2002 and 2003 were as follows (in thousands):
December 31,
|
||||||
2002
|
2003
|
|||||
Refined petroleum products |
$ | 3,863 | $ | 3,435 | ||
Natural gas liquids |
| 12,362 | ||||
Additives |
897 | 977 | ||||
Other |
464 | 508 | ||||
|
|
|
|
|||
Total inventories |
$ | 5,224 | $ | 17,282 | ||
|
|
|
|
12
The increase in the natural gas liquids inventory is the result of the acquisition of certain rights and related inventories pertaining to a petroleum product management operation from Williams and its affiliates in July 2003. (See Note 5 Acquisitions and Divestitures).
7. Property, Plant and Equipment
Property, plant and equipment consists of the following (in thousands):
December 31,
|
Estimated Depreciable Lives |
|||||||
2002
|
2003
|
|||||||
Construction work-in-progress |
$ | 4,909 | $ | 14,657 | ||||
Land and right-of-way |
30,199 | 35,033 | ||||||
Carrier property |
898,829 | 1,059,739 | 6 - 59 years | |||||
Buildings |
8,281 | 9,670 | 30 - 56 years | |||||
Storage tanks |
172,865 | 199,583 | 30 - 40 years | |||||
Pipeline and station equipment |
57,551 | 92,690 | 30 - 69 years | |||||
Processing equipment |
138,180 | 139,749 | 30 years | |||||
Other |
23,713 | 36,368 | 3 - 30 years | |||||
|
|
|
|
|||||
Total |
$ | 1,334,527 | $ | 1,587,489 | ||||
|
|
|
|
Carrier property is defined as pipeline assets regulated by the FERC. Other includes capitalized interest at December 31, 2003 and 2002 of $18.1million and $18.6 million, respectively.
8. Concentration of Risk
Any issues impacting the petroleum refining and marketing and anhydrous ammonia industries could impact Magellan GP, LLCs overall exposure to credit risk. Accounts receivable from Williams Energy Marketing & Trading accounted for 0% and 7% of total accounts and affiliate receivables at December 31, 2003 and 2002, respectively.
Magellan Pipeline transports refined petroleum products for refiners and marketers in the petroleum industry. The major concentration of Magellan Pipelines revenues is derived from activities conducted in the central United States. The size and quality of the companies with which the Partnership conducts its businesses hold its credit losses to a minimum. Sales to customers are generally unsecured and the financial condition and creditworthiness of customers are periodically evaluated. The Partnership has the ability with many of its terminals contracts to sell stored customer products to recover unpaid receivable balances, if necessary. The concentration of ammonia revenues is derived from customers with plants in Oklahoma and Texas and sales are generally unsecured. Issues impacting the petroleum refining and marketing and anhydrous ammonia industries could impact the Partnerships overall exposure to credit risk.
To conduct the Partnerships operations, an affiliate of Magellan GP, LLC employs approximately 823 employees. Magellan Pipelines labor force of 435 employees is concentrated in the central United States. At December 31, 2003, 50% of the employees were represented by a union and covered by collective bargaining agreements that extend through January 31, 2006. The petroleum products terminals operations labor force of 174 people is concentrated in the southeastern and Gulf Coast regions of the United States. None of the terminal operations employees are represented by labor unions. The employees at the Partnerships Galena Park marine terminal facility were previously represented by a union, but indicated in 2000 their unanimous desire to terminate their union affiliation. Nevertheless, the National Labor Relations Board (NLRB) ordered the Partnership to bargain with the union as the exclusive collective bargaining representative of the employees at the facility. Subsequently, the NLRB reversed its decision and withdrew its order. Magellan GP, LLC considers its employee relations to be good.
9. Employee Benefit Plans
On June 17, 2003, Williams sold its interest in the Partnership (See Note 3 Change in Ownership of Magellan GP, LLC). Employees dedicated to or otherwise supporting the Partnership remained employees of Williams through December 31, 2003. and many of participated in Williams sponsored employee benefit plans. For the period from June 18, 2003 through December 31, 2003, Williams charged the Partnership for the services of the employees in accordance with the TSA as defined in Note 1 Organization and Presentation.
13
The employees previously assigned by Williams to the Partnership became employees of MMH on January 1, 2004. MMH committed to provide for certain employee benefits as of the employee transfer date. Magellan GP, LLC has recognized in its Consolidated Balance Sheet an obligation related to this commitment. The following table presents Magellan GP, LLCs recognition of the benefit obligations and plan assets for the pension plans and other post-retirement benefit plan for which MMH assumed sponsorship or created on January 1, 2004 (in thousands):
Pension
|
Other Post-
Retirement
|
|||||||
Benefit obligation |
$ | 26,294 | $ | 18,266 | ||||
Fair value of plan assets |
19,453 | | ||||||
|
|
|
|
|
|
|||
Funded Status |
(6,841 | ) | (18,266 | ) | ||||
Unrecognized net actuarial loss |
4,206 | | ||||||
Unrecognized prior service (credit) cost |
(1,100 | ) | 8,293 | |||||
|
|
|
|
|
|
|||
Prepaid benefit cost |
$ | (3,735 | ) | $ | (9,973 | ) | ||
|
|
|
|
|
|
|||
Accumulated benefit obligation |
$ | 18,252 | N/A | |||||
|
|
|
|
|
|
|||
Weighted-average assumptions used to determine benefit obligations: |
||||||||
Discount rate |
6.3 | % | 6.3 | % | ||||
Rate of compensation increase |
5.0 | % | N/A | |||||
Estimated contributions in 2004 |
$ | 1,200 | $ | | ||||
|
|
|
|
|
|
Magellan GP, LLC used a January 1, 2004, measurement date for these plans. For benefits incurred by participants prior to age 65, the annual assumed rate of increase in the health care cost trend rate for 2004 is 8.6% and systematically decreases to 5.0% by 2009. The annual assumed rate of increase in the health care cost trend rate for post-65 benefits for 2004 is 12.0%, and systematically decreases to 5.0% by 2016. The health care cost trend rate assumption has a significant effect on the amounts reported. A 1.0% change in assumed health care cost trend rates would have the following effect (in thousands):
Point Increase
|
Point Decrease
|
||||||
Effect on postretirement benefit obligation |
$ | 2,428 | $ | (1,971 | ) |
The Medicare Prescription Drug Improvement and Modernization Act of 2003 (the Act) was enacted on December 8, 2003. The effect of the Act has not been reflected in the post-retirement benefit obligation disclosed above. Authoritative guidance on the accounting for the federal subsidy is pending and that guidance, when issued, could require the Partnership to change previously reported information.
10. Related Party Transactions
Current and long-term affiliate accounts receivable are primarily associated with: (i) certain environmental liabilities indemnified by MMH at December 31, 2003 and for environmental liabilities indemnified by Williams at December 31, 2002, and (ii) for reimbursements due the Partnership associated with general and administrative costs in excess of the expense limitation as agreed to between the Partnership, MMH and Williams and its affiliates. Affiliate accounts payable at December 31, 2002 primarily represent amounts owed to affiliates for operational and general and administrative services provided on behalf of Magellan GP, LLC and the Partnership. Accrued affiliate payroll and benefits are amounts due to affiliate companies for salary and wages, bonus and associated benefit costs for employees directly assigned to the Partnership. Affiliate pension and long-term retiree medical liabilities are associated with MMH liabilities for pension and retiree medical liabilities which will be reimbursed by the Partnership.
Prior to June 17, 2003, transactions between the Partnership and Williams and its affiliates were recorded as affiliate transactions. Subsequent to June 17, 2003, commercial and operational transactions between the Partnership and its former Williams affiliates were inconsequential. The Partnership had agreements with Williams Energy Marketing & Trading Company, which provide for: (i) the
14
lease of a Carthage, Missouri propane storage cavern, and (ii) access and utilization of storage on the Magellan Pipeline system. Magellan Pipeline has entered into pipeline lease agreements and tank storage agreements with Mid-America Pipeline Company (MAPL) and Williams Bio-Energy, LLC (Williams Bio-Energy), respectively. MAPL was an affiliate entity until its sale by Williams on August 1, 2002 and Williams Bio-Energy was an affiliate entity until its sale by Williams in May 2003. The Partnership also had a leased storage contract with Williams Bio-Energy at its Galena Park, Texas marine terminal facility. The Partnership also had an agreement with Williams Energy Marketing & Trading Company, which provided for storage and other ancillary services at the Partnerships marine terminal facilities. This agreement was cancelled during the first quarter of 2003 in exchange for a $3.0 million payment to the Partnership from Williams Energy Marketing & Trading Company. From the time of Magellan Pipelines acquisition in April 2002, the Partnership had an agreement with Williams Petroleum Services, LLC to perform a petroleum products management operation for an annual fee of approximately $4.0 million until July 2003, when the Partnership acquired from an affiliate of Williams the rights to this operation (See Note 5 - Acquisitions). The Partnership also had affiliate agreements with Williams Energy Marketing & Trading Company and Williams Refining & Marketing, LLC for the non-exclusive and non-transferable sub-license to use the ATLAS 2000 software system. The rights to this system were contributed to the Partnership on June 17, 2003 (See Note 3 Change in Ownership of Magellan GP, LLC). The following table provides the percentage of total revenues that the Partnership derived from various affiliate entities (amounts as percents):
Year Ended December 31,
|
||||||
2001
|
2002
|
2003
|
||||
Williams 100%-Owned Affiliates: |
||||||
Williams Energy Marketing & Trading |
16.9 | 9.2 | 1.5 | |||
Williams Refining & Marketing |
3.0 | 1.9 | | |||
Williams Bio Energy |
0.8 | 1.1 | 0.5 | |||
Midstream Marketing & Risk Management |
| 0.4 | 0.1 | |||
Petroleum Services |
0.1 | 0.6 | 0.6 | |||
Mid-America Pipeline |
0.1 | | | |||
Other |
| 0.3 | 0.2 | |||
Williams Partially-Owned Affiliates: |
||||||
Longhorn Pipeline Partners |
0.2 | | | |||
|
|
|
||||
Total |
21.1 | 13.5 | 2.9 | |||
|
|
|
Until June 17, 2003, Williams allocated both direct and indirect general and administrative expenses to its affiliates. Direct expenses allocated by Williams were primarily salaries and benefits of employees and officers associated with the business activities of the affiliate. Indirect expenses include legal, accounting, treasury, engineering, information technology and other corporate services. The Partnership reimbursed Magellan GP, LLC for expenses charged to the Partnership by Magellan GP, LLC on a regular basis based on the expense limitations provided in the Omnibus Agreement. After June 17, 2003, MMH has allocated general and administrative expenses to Magellan GP, LLC, which, in turn, has allocated those same charges to the Partnership. Allocations from MMH were primarily bonus and associated benefit costs of employees and officers assigned by Williams to conduct the business activities of the Partnership.
11. Debt
Debt for Magellan GP, LLC was as follows (in thousands):
December 31,
|
||||||
2002
|
2003
|
|||||
Magellan OLP term loan and revolving credit facility, long-term portion |
$ | 90,000 | $ | | ||
Magellan term loan and revolving credit facility: |
||||||
Long-term portion |
| 89,100 | ||||
Current portion |
| 900 | ||||
|
|
|
|
|||
Total |
| 90,000 | ||||
Magellan Pipeline Senior Secured Notes, long-term portion |
480,000 | 490,917 | ||||
|
|
|
|
|||
Total debt |
$ | 570,000 | $ | 580,917 | ||
|
|
|
|
Magellan term loan and revolving credit facility
In August 2003, the Partnership entered into a new credit agreement with a syndicate of banks. This facility, which replaced the term loan and revolving credit facility of Magellan OLP, L.P. (Magellan OLP), formerly Williams OLP L.P., a subsidiary of the
15
Partnership, is comprised of a $90.0 million term loan and an $85.0 million revolving credit facility of which $10.0 million is available for letters of credit. Indebtedness under the term loan initially bore interest at the Eurodollar rate plus a margin of 2.4%. The facility was amended in December 2003 to reduce the margin on the term loan borrowings to 2.0%. Indebtedness under the revolving credit facility bears interest at the Eurodollar rate plus a margin of 1.8%. The Partnership also incurs a commitment fee on the un-drawn portion of the revolving credit facility. The facility provides for the establishment of up to $100.0 million in additional term loans, which would bear interest at a rate agreed to at the time of borrowing. The Partnership incurred debt placement fees of $2.6 million associated with this credit facility, which are being amortized over the life of the credit facility.
The new revolving credit facility terminates on August 6, 2007, and the new term loan terminates on August 6, 2008. Scheduled prepayments equal to 1.0% of the initial term loan balance are due on August 6th of each year until maturity. As of December 31, 2003, the $90.0 million term loan was outstanding with $0.2 million of the $85.0 million revolving credit facility being used for a letter of credit, with the balance available for future borrowings. Obligations under the facility are secured by the Partnerships equity interests in Magellan GP, Inc. and Magellan OLP and their subsidiaries, including the entities which hold the petroleum products terminals and ammonia pipeline system. Magellan GP, Inc., a Delaware corporation, is the general partner of Magellan OLP. Those entities are also guarantors of the Partnerships obligations under the facility. Magellan Pipeline is a separate operating subsidiary of the Partnership and is not a guarantor under this facility. The weighted-average interest rate for this facility for the period August 6, 2003 through December 31, 2003 was 3.4% and the interest rate at December 31, 2003 was 3.2%.
Under the terms of the above-named facility, a change in control results in an event of default, in which case the maturity date of the obligations under the facility may be accelerated. For this facility, a change of control is defined in a variety of ways, each of which involve the current owners of MMH no longer maintaining majority control of the management of MMH, the Partnership or Magellan GP, LLC. This facility contains various operational and financial covenants. The Partnership is in compliance with all of these covenants.
At December 31, 2002, Magellan OLP had a $175.0 million bank credit facility, which was comprised of a $90.0 million term loan facility and an $85.0 million revolving credit facility. On February 9, 2001, the OLP borrowed $90.0 million under the term loan facility, which remained outstanding until August 2003, when the facility was repaid. Borrowings under the credit facility carried an interest rate equal to the Eurodollar rate plus a spread from 1.0% to 1.5%, depending on the OLPs leverage ratio. Interest was also assessed on the unused portion of the credit facility at a rate from 0.2% to 0.4%, depending on the OLPs leverage ratio. Closing fees associated with the initiation of the credit facility were $0.9 million and were amortized over the life of the facility. Weighted average interest rates were 2.6% for the period January 1, 2003 through August 6, 2003 (when the facility was repaid) and 3.3% for the twelve months ended December 31, 2002. The interest rate for amounts borrowed against this facility on December 31, 2002 was 2.8%.
Magellan Pipeline Senior Secured Notes
During October 2002, Magellan Pipeline entered into a private placement debt agreement with a group of financial institutions for up to $200.0 million aggregate principal amount of Floating Rate Series A-1 and Series A-2 Senior Secured Notes and up to $340.0 million aggregate principal amount of Fixed Rate Series B-1 and Series B-2 Senior Secured Notes. Both notes are secured with the Partnerships membership interest in and assets of Magellan Pipeline. The maturity date of both notes is October 7, 2007; however, the Partnership will be required on each of October 7, 2005 and October 7, 2006, to repay 5.0% of the then outstanding principal amount of the Senior Secured Notes. Two borrowings have occurred in relation to these notes. The first borrowing was completed in November 2002 and was for $420.0 million, of which $156.0 million was borrowed under the Series A-1 notes and $264.0 million under the Series B-1 notes. The proceeds from this initial borrowing were used to repay Magellan Pipelines $411.0 million short-term loan and pay related debt placement fees. The second borrowing was completed in December 2002 for $60.0 million, of which $22.0 million was borrowed under the Series A-2 notes and $38.0 million under the Series B-2 notes. $58.0 million of the proceeds from this second borrowing were used to repay the acquisition sub-facility of the OLP and $2.0 million were used for general partnership purposes.
The Series A-1 and Series A-2 notes bear interest at a rate equal to the six month Eurodollar rate plus 4.3%. The Series B-1 notes bear interest at a fixed rate of 7.7%, while the Series B-2 notes bear interest at a fixed rate of 7.9%. The weighted-average rate for the Magellan Pipeline Senior Secured Notes at December 31, 2003 and 2002 was 6.9% and 7.0%, respectively. The Partnership incurred debt placement fees associated with these notes of $10.5 million in 2002 and $0.3 million in 2003, which are being amortized over the life of the notes. Payment of interest and repayment of the principal is guaranteed by the Partnership. Monthly deposits in the amount of interest due the lenders are made to a cash escrow account from which interest payments on the Magellan Pipeline notes are made semi-annually. These deposits are reflected as restricted cash on Magellan GP, LLCs Consolidated Balance Sheets and were $8.2 million and $4.9 million at December 31, 2003 and 2002, respectively. The fixed rate portion of this debt was adjusted to fair value for MMHs 54.6% ownership interest on June 17, 2003.
The debt agreement imposes certain restrictions on Magellan Pipeline and the Partnership. Generally, the agreement restricts the
16
amount of additional indebtedness Magellan Pipeline can incur, prohibits Magellan Pipeline from creating or incurring any liens on its property, and restricts Magellan Pipeline from disposing of its property, making any debt or equity investments, or making any loans or advances of any kind. The agreement also requires transactions between Magellan Pipeline and any of its affiliates to be on terms no less favorable than those Magellan Pipeline would receive in an arms-length transaction. In the event of a change in control of Magellan GP, LLC, each holder of the notes would have thirty days within which they could exercise a right to put their notes to Magellan Pipeline unless the new owner of Magellan GP, LLC has (i) a net worth of at least $500.0 million and (ii) long-term unsecured debt rated as investment grade by both Moodys Investor Service Inc. and Standard & Poors Rating Service. If this put right were exercised, Magellan Pipeline would be obligated to repurchase any such notes and repay any accrued interest within sixty days.
In April 2002, the Partnership borrowed $700.0 million from a group of financial institutions. This short-term loan was used to help finance the Partnerships acquisition of Magellan Pipeline. During the second quarter of 2002 the Partnership repaid $289.0 million of the short-term loan with net proceeds from an equity offering. Debt placement fees associated with the note were $7.1 million and were amortized over the life of the note. In October 2002, the Partnership negotiated an extension to the maturity of this note from October 8, 2002, to November 27, 2002, and the Partnership paid additional fees of approximately $2.1 million associated with this maturity date extension. The Partnership repaid the remaining outstanding balance of the note on November 15, 2002. The weighted average interest rate on this note was 5.1% for the period April 11, 2002 through November 15, 2002.
During September 2002, in anticipation of a new debt placement to replace the short-term debt assumed to acquire Magellan Pipeline, the Partnership entered into an interest rate hedge. The effect of this interest rate hedge was to set the coupon rate on a portion of the fixed-rate debt at 7.8% prior to actual execution of the debt agreement. The loss on the hedge, approximately $1.0 million, was recorded in accumulated other comprehensive loss and is being amortized over the five-year life of the fixed-rate debt secured during October 2002.
12. Leases
Leases - Lessee
The Partnership leases land, office buildings, tanks and terminal equipment at various locations to conduct its business operations. Future minimum annual rentals under non-cancelable operating leases as of December 31, 2003, are as follows (in thousands):
2004 |
$ | 2,435 | |
2005 |
2,290 | ||
2006 |
2,215 | ||
2007 |
2,167 | ||
2008 |
1,661 | ||
Thereafter |
7,740 | ||
|
|
||
Total |
$ | 18,508 | |
|
|
Leases Lessor
On December 31, 2001, the Partnership purchased an 8.5-mile, 8-inch natural gas liquids pipeline in northeastern Illinois from Aux Sable Liquid Products L.P. (Aux Sable) for $8.9 million. The Partnership then entered into a long-term lease arrangement under which Aux Sable is the sole lessee of these assets. The Partnership has accounted for this transaction as a direct financing lease. The lease expires in December 2016 and has a purchase option after the first year. Aux Sable has the right to re-acquire the pipeline at the end of the lease for a de minimis amount. The Partnership also has two five-year pipeline capacity leases with Farmland Industries, Inc. The first agreement, which is accounted for as a direct financing lease, will expire on November 30, 2005 and the second agreement, which is accounted for as an operating lease, will expire on April 30, 2007. Both leases contain options to extend the agreement for another five years. In addition, the Partnership has nine other capacity operating leases with terms of one to thirteen years. All of the agreements provide for negotiated extensions.
Future minimum lease payments receivable under operating-type leasing arrangements as of December 31, 2003, are as follows (in thousands):
2004 |
$ | 8,336 | |
2005 |
4,904 | ||
2006 |
4,372 | ||
2007 |
4,062 | ||
2008 |
3,907 | ||
Thereafter |
19,172 | ||
|
|
||
Total |
$ | 44,753 | |
|
|
17
Future minimum lease payments under direct-financing-type leasing arrangements as of December 31, 2003, were $2.5 million in 2004, $1.3 million during each year from 2005 through 2008 and $10.1 million cumulatively for all periods after 2008. The net investment under direct financing leasing arrangements as of December 31, 2002 and 2003, are as follows (in thousands):
December 31,
|
||||||
2002
|
2003
|
|||||
Total minimum lease payments receivable |
$ | 20,154 | $ | 17,699 | ||
Less: Unearned income |
9,923 | 8,469 | ||||
|
|
|
|
|||
Recorded net investment in direct financing leases |
$ | 10,231 | $ | 9,230 | ||
|
|
|
|
As of December 31, 2003, the net investment in direct financing leases was classified in the Consolidated Balance Sheet as $0.4 million current accounts receivable, $0.2 million current deferred revenue and $9.0 million noncurrent receivable. As of December 31, 2002, the net investment in direct financing leases was classified in the Consolidated Balance Sheet as $1.4 million current accounts receivable, $0.4 million current deferred revenue, $9.4 million noncurrent receivable and $0.2 noncurrent deferred revenue.
13. Long-Term Incentive Plan
In February 2001, Magellan GP, LLC adopted the Williams Energy Partners Long-Term Incentive Plan, which was amended and restated on February 3, 2003, on July 22, 2003 and on February 3, 2004, for employees who perform services for the Partnership and directors of Magellan GP, LLC. The Long-Term Incentive Plan consists of two components: phantom units and unit options. The Long-Term Incentive Plan permits the grant of awards covering an aggregate of 700,000 common units. The Compensation Committee of Magellans GP, LLCs Board of Directors administers the Long-Term Incentive Plan.
In April 2001, Magellan GP, LLC issued grants of 92,500 phantom units to certain key employees associated with the Partnerships initial public offering in February 2001. These awards allowed for early vesting if established performance measures were met prior to February 9, 2004. The Partnership met all of these performance measures and all of the awards vested during 2002.
In April 2001, Magellan GP, LLC granted 64,200 phantom units pursuant to the Long-Term Incentive Plan. With the change in control of Magellan GP, LLC, which occurred on June 17, 2003, these awards vested at their maximum award level, resulting in 128,400 unit awards.
During 2002, Magellan GP, LLCs Compensation Committee granted 22,650 phantom units pursuant to the Long-Term Incentive Plan. With the change in control of Magellan GP, LLC, which occurred on June 17, 2003, these awards vested at their maximum award level, resulting in 45,300 unit awards. The Partnership elected to settle these awards with cash payments instead of common units.
In February 2003, Magellan GP, LLCs Compensation Committee granted 52,825 phantom units pursuant to the Long-Term Incentive Plan. The actual number of units that will be awarded under this grant are based on certain performance metrics, which were determined by the Partnership at the end of 2003, and a personal performance component that will be determined at the end of 2005, with vesting to occur at that time. Because 3,080 unit grants vested early (see discussion below), the remaining number of units that could be awarded, excluding the personal performance component, will range from zero units up to a total of 99,490 units. These units are subject to forfeiture if employment is terminated prior to the vesting date. These awards do not have an early vesting feature, except for: (i) the death or disability of a participant, or (ii) a change in control of Magellan GP, LLC where the participant is terminated for reasons other than cause within the two years following the change in control of Magellan GP, LLC, in which case the awards will vest and payout immediately at the highest performance level under the Plan. Subsequent to the change in control of Magellan GP, LLC on June 17, 2003, certain awards under this grant vested at their maximum award level (two times the original grant), resulting in a cash payout associated with 6,160 unit awards. Until the payout of these awards, the Partnership was expensing compensation costs associated with the non-vested portion of these awards assuming 52,825 units would vest. Subsequent to the vesting of 6,160 awards previously mentioned, the Partnership began accruing compensation expense assuming 49,745 units would vest; however, during 2003, the Partnership increased the associated accrual to an expected payout of 95,271 units. The value of the 95,271 unit awards on December 31, 2003 was $4.8 million.
18
In October 2003, Magellan GP, LLCs Compensation Committee granted 10,640 phantom units pursuant to the Long-Term Incentive Plan. Of these awards, 4,850 units vested on December 31, 2003. The remaining units will vest as follows: 470 units on July 31, 2004, 4,850 units on December 31, 2004 and 470 units on July 31, 2005. There are no performance metrics associated with these awards and the payouts cannot exceed the face amount of the units awarded. These units are subject to forfeiture if employment is terminated prior to the vesting date. These awards do not have an early vesting feature, except for: (i) the death or disability of a participant, or (ii) a change in control of Magellan GP, LLC where the participant is terminated for reasons other than cause or the employee voluntarily terminates for good reason within the two years following the change in control of Magellan GP, LLC. The value of the 5,790 unvested awards at December 31, 2003 was $0.3 million.
14. Commitments and Contingencies
Williams has agreed to indemnify the Partnership against any covered environmental losses up to $15.0 million relating to assets it contributed to the Partnership at the time of the initial public offering. See Note 3 Change in Ownership of Magellan GP, LLC for additional details regarding this indemnity. Note 3 further describes certain right-of-way indemnities associated with the ammonia pipeline easements and right-of-way defects or failures associated with the marine terminal facilities at Galena Park and Corpus Christi, Texas and Marrero, Louisiana. We refer to this indemnity in the table below as the IPO Indemnity.
In connection with the acquisition of Magellan Pipeline, Williams agreed to indemnify the Partnership for any breaches of representations or warranties, environmental liabilities and failures to comply with environmental laws as described below that result in losses and damages up to $110.0 million after the payment of an applicable $2.0 million deductible. With respect to any amount exceeding $110.0 million, Williams will be responsible for one-half of that amount up to $140.0 million. Williams liability under this indemnity is capped at $125.0 million. We refer to this indemnity in the table below as the Magellan Pipeline Indemnity. This indemnification obligation survived for one year, except for those obligations relating to employees, title, taxes and environmental. Obligations relating to employees and employee benefits will survive for the applicable statute of limitations and those obligations relating to real property, including asset titles, will survive for ten years after April 11, 2002, the date the Partnership acquired Magellan Pipeline. This indemnity also provides that the Partnership will be indemnified for an unlimited amount of losses and damages related to tax liabilities. In addition, any losses and damages related to environmental liabilities caused by events that occurred prior to the acquisition and for which claims are made within six years of the Partnerships acquisition of Magellan Pipeline will be subject to a $2.0 million deductible, which was met during 2002. Covered environmental losses include those losses arising from the correction of violations of, or performance of remediation required by, environmental laws in effect at April 11, 2002.
Williams has also indemnified the Partnership against environmental losses that occurred from February 2001 through June 17, 2003 for assets included in the Partnership at the time of its initial public offering and from April 2002 through June 17, 2003 for Magellan Pipeline assets as well as other items not covered by Williams preexisting indemnifications of the Partnership. See Note 3 Change in Ownership of Magellan GP, LLC for additional discussion of this matter. We refer to this indemnity in the table below as the Acquisition Indemnity.
Maximum Indemnity Amount |
Claims Against Indemnity |
Amount of Indemnity Remaining |
|||||||
IPO Indemnity |
$ | 15.0 | $ | 3.4 | $ | 11.6 | |||
Magellan Pipeline Indemnity |
125.0 | 18.0 | 107.0 | ||||||
Acquisition Indemnity |
175.0 | 0.7 | 174.3 | ||||||
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|
|
|
|
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Total |
$ | 315.0 | $ | 22.1 | $ | 292.9 | |||
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|
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Estimated liabilities for environmental costs were $25.1 million and $22.3 million at December 31, 2003 and 2002, respectively. These estimates, provided on an undiscounted basis, were determined based primarily on data provided by a third-party environmental evaluation service and internal environmental personnel. These liabilities have been classified as current or noncurrent based on managements estimates regarding the timing of actual payments. Management estimates that expenditures associated with these environmental remediation liabilities will be paid over the next five to ten years. As described in Note 3 - Change in Ownership of Magellan GP, LLC, MMH assumed Williams obligations for $21.9 million of environmental liabilities, and the Partnership recorded a receivable from MMH for this amount. MMH reduced the amount it paid for Williams ownership interest in the Partnership by the present value of the cash flows associated with the $21.9 million of environmental liabilities. To the extent the environmental and other Williams indemnity claims against MMH are not $21.9 million and to the extent no other indemnity obligations exist with Williams, MMH will pay to Williams the remaining difference between $21.9 million and the indemnity claims paid by MMH. Receivables from Williams or its affiliates associated with indemnified environmental costs were $7.8 million at December 31, 2003 and $22.9 million at December 31, 2002 and receivables from MMH at December 31, 2003 were $19.0 million. The Partnership invoices MMH, Williams and its affiliates or other third-party entities relative to their environmental indemnities are received as remediation work is performed.
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In conjunction with the 1999 acquisition of the Gulf Coast marine terminals from Amerada Hess Corporation (Hess), Hess represented that it has disclosed to the Partnership all suits, actions, claims, arbitrations, administrative, governmental investigation or other legal proceedings pending or threatened, against or related to the assets acquired by the Partnership, which arise under environmental law. In the event that any pre-acquisition releases of hazardous substances at the Partnerships Corpus Christi and Galena Park, Texas and Marrero, Louisiana marine terminal facilities were unknown at closing but subsequently identified by the Partnership prior to July 30, 2004, the Partnership will be liable for the first $2.5 million of environmental liabilities, Hess will be liable for the next $12.5 million of losses and the Partnership will assume responsibility for any losses in excess of $15.0 million subject to Williams indemnities to the Partnership. Also, Hess agreed to indemnify the Partnership through July 30, 2014 against all known and required environmental remediation costs at the Corpus Christi and Galena Park, Texas marine terminal facilities from any matters related to pre-acquisition actions. Hess has indemnified the Partnership for a variety of pre-acquisition fines and claims that may be imposed or asserted against the Partnership under certain environmental laws.
During 2001, the Environmental Protection Agency (EPA), pursuant to Section 308 of the Clean Water Act, preliminarily determined that Williams may have systemic problems with petroleum discharges from pipeline operations. The inquiry primarily focused on Magellan Pipeline. The response to the EPAs information request was submitted during November 2001. The EPA has recently informed us that they have initiated a review of the response submitted in 2001. The Partnership believes that any claims the EPA may assert relative to this inquiry is covered by Williams indemnifications to the Partnership.
During the fourth quarter of 2003, the Partnership experienced a line break and product spill on its petroleum products pipeline near Shawnee, Kansas, which resulted in the Partnership recognizing environmental liabilities of $4.3 million. The Partnership recorded a receivable from its insurance carrier of $2.6 million associated with this spill. This break occurred in a section of line near a previous break site that had been remediated by Williams. The Partnership believes the current break is covered by indemnifications from Williams and has filed a claim against Williams for the total amount of the estimated liability associated with this spill. Williams is currently evaluating our claim.
The Partnership is party to various other claims, legal actions and complaints arising in the ordinary course of business. In the opinion of management, the ultimate resolution of all claims, legal actions and complaints after consideration of amounts accrued, insurance coverage or other indemnification arrangements will not have a material adverse effect upon Magellan GP, LLCs financial position.
15. Fair Value of Financial Instruments
The following methods and assumptions were used by the Partnership in estimating its fair value disclosure for financial instruments:
Cash and cash equivalents and restricted cash : The carrying amounts reported in the balance sheet approximate fair value due to the short-term maturity of these instruments.
Long-term affiliate receivables: Fair value is determined by discounting estimated cash flows by the Partnerships incremental borrowing rates.
Long-term receivables : Generally, fair value is determined by discounting estimated future cash flows by the rates inherent in the long-term instruments plus/minus the change in the risk free rate since inception of the instrument.
Long-term debt : During 2002, the Partnership had all variable-rate debt until late in the year, when part of the debt was replaced with fixed-rate debt, consequently, the carrying rate approximated fair value at December 31, 2002. For 2003, the carrying amount of the Partnerships variable-rate debt approximates fair value, and the fair value of the Partnerships fixed-rate debt was determined by discounting estimated future cash flows using the Partnerships incremental borrowing rate.
20
The following table reflects the carrying amounts and fair values of the Partnerships financial instruments as of December 31, 2002 and 2003 (in thousands):
December 31, 2002
|
December 31, 2003
|
|||||||||||
Carrying Amount |
Fair Value |
Carrying Amount |
Fair Value |
|||||||||
Cash and cash equivalents |
$ | 75,738 | $ | 75,738 | $ | 111,357 | $ | 111,357 | ||||
Restricted cash |
4,942 | 4,942 | 8,223 | 8,223 | ||||||||
Long-term affiliate receivables |
11,656 | 9,716 | 12,402 | 9,716 | ||||||||
Long-term receivables |
9,268 | 7,910 | 8,867 | 7,910 | ||||||||
Long-term debt |
570,000 | 570,000 | 580,917 | 577,510 |
16. Distributions
Distributions paid by the Partnership during 2002 and 2003 were as follows (in thousands, except per unit amounts):
Date Cash Distribution Paid |
Per Unit
Distribution Amount |
Common Units |
Subordinated Units |
Class B Common Units |
General
Equivalent Units |
Total Cash Distribution |
||||||||||||
02/14/02 |
$ | 0.5900 | $ | 3,351 | $ | 3,351 | $ | | $ | 159 | $ | 6,861 | ||||||
05/15/02 |
0.6125 | 3,479 | 3,479 | | 204 | 7,162 | ||||||||||||
08/14/02 |
0.6750 | 9,234 | 3,834 | 5,286 | 868 | 19,222 | ||||||||||||
11/14/02 |
0.7000 | 9,576 | 3,978 | 5,482 | 1,092 | 20,128 | ||||||||||||
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|
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Total |
$ | 2.5775 | $ | 25,640 | $ | 14,642 | $ | 10,768 | $ | 2,323 | $ | 53,373 | ||||||
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02/14/03 |
$ | 0.7250 | $ | 9,918 | $ | 4,118 | $ | 5,677 | $ | 1,321 | $ | 21,034 | ||||||
05/15/03 |
0.7500 | 10,260 | 4,260 | 5,873 | 1,548 | 21,941 | ||||||||||||
08/14/03 |
0.7800 | 10,670 | 4,430 | 6,108 | 1,820 | 23,028 | ||||||||||||
11/14/03 |
0.8100 | 11,081 | 4,601 | 6,343 | 2,499 | 24,524 | ||||||||||||
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|
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|
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Total |
$ | 3.0650 | $ | 41,929 | $ | 17,409 | $ | 24,001 | $ | 7,188 | $ | 90,527 | ||||||
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On February 13, 2004, the Partnership paid cash distributions of $0.83 per unit on its outstanding common and subordinated units to unitholders of record at the close of business on February 6, 2004. The total distribution, including distributions paid to Magellan GP, LLC on its equivalent units, was $25.8 million. The distributions above include amounts paid by the Partnership to Magellan GP, LLC. The affect of these distribution amounts were eliminated for purposes of preparing Magellan GP, LLCs balance sheets.
17. Owners Equity
Owners equity was comprised of the following interests in the Partnership (in thousands):
December 31,
|
|||||||
2002
|
2003
|
||||||
General partner interest held by Magellan GP, LLC |
$ | (410,530 | ) | $ | 25,933 | ||
Common units held by affiliates |
59,814 | 271,996 | |||||
Subordinated units held by affiliates |
131,194 | 135,085 | |||||
Class B common units held by affiliates |
313,651 | | |||||
|
|
|
|
|
|||
Ending balance |
$ | 94,129 | $ | 433,014 | |||
|
|
|
|
|
Of the Partnerships 13,679,694 common units outstanding at December 31, 2002, the public held 12,600,000 with the remaining 1,079,694 held by affiliates of Magellan GP, LLC. All of the Partnerships 5,679,694 subordinated units and 7,830,924 Class B common units are held by affiliates of Magellan GP, LLC.
In December 2003, all 7,830,924 of the Partnerships class B common units were converted to an equal number of common units. Also, during December 2003, an additional 200,000 common units of the Partnership were sold to the public. At December 31, 2003, the Partnership had 21,710,618 common units outstanding, of which 17,100,000 were held by the public, with the remaining 4,610,618 units held by affiliates of Magellan GP, LLC. All of the Partnerships 5,679,694 subordinated units outstanding at December 31, 2003, were held by affiliates of Magellan GP, LLC. With the declaration and payment of the cash distributions in February 2004, 25% of the partnerships subordinated units, or 1,419,923 units, converted to common units on the record date of February 6, 2004. Magellans partnership agreement provides for the conversion because quarterly distributions have equaled or exceeded the Partnerships $0.525 per unit minimum quarterly distribution for three consecutive years. Also, during January 2004, the underwriters exercised their over-allotment option and sold an additional 675,000 units that affiliates of general partner owned to the public. See Note 16 Subsequent Events for further discussion of this matter.
21
During the remaining subordination period, the Partnership can issue up to 2,839,847 additional common units without obtaining unitholder approval. In December 2003, the Partnership issued 200,000 units to the public, which reduced the number of additional common units it can issue without unitholder approval to 2,639,847. Magellan GP, LLC can issue an unlimited number of common units as follows:
| upon exercise of the underwriters over-allotment option; |
| upon conversion of the subordinated units; |
| under employee benefit plans; |
| upon conversion of Magellan GP, LLCs interest and incentive distribution rights as a result of a withdrawal of Magellan GP, LLC as general partner; |
| in the event of a combination or subdivision of common units; |
| in connection with an acquisition or a capital improvement that increases cash flow from operations per unit on a pro forma basis; or |
| if the proceeds of the issuance are used exclusively to repay up to $40.0 million of our indebtedness. |
The subordination period will end when the Partnership meets certain financial tests provided for in the Partnership agreement but it generally cannot end before December 31, 2005.
The limited partners holding common units of the Partnership have the following rights, among others:
| right to receive distributions of the Partnerships available cash within 45 days after the end of each quarter; |
| right to elect the board members of Magellan GP, LLC; |
| right to remove Magellan GP, LLC as the general partner upon a 66.7% majority vote of outstanding unitholders; |
| right to transfer common unit ownership to substitute limited partners; |
| right to receive an annual report, containing audited financial statements and a report on those financial statements by our independent public accountants within 120 days after the close of the fiscal year end; |
| right to receive information reasonably required for tax reporting purposes within 90 days after the close of the calendar year; |
| right to vote according to the limited partners percentage interest in the Partnership on any meeting that may be called by Magellan GP, LLC; and |
| right to inspect our books and records at the unitholders own expense. |
Net income is allocated to Magellan GP, LLC and limited partners based on their proportionate share of cash distributions for the period. Cash distributions to Magellan GP, LLC and limited partners are made based on the following table:
Percentage of
Distributions |
||||
Quarterly Distribution Amount (per unit) |
Limited Partners |
General Partner |
||
Up to $0.578 |
98 | 2 | ||
Above $0.578 up to $0.656 |
85 | 15 | ||
Above $0.656 up to $0.788 |
75 | 25 | ||
Above $0.788 |
50 | 50 |
In the event of a liquidation, all property and cash in excess of that required to discharge all liabilities will be distributed to the partners in proportion to the positive balances in their respective tax-basis capital accounts.
18. Subsequent Events
In January 2004, the underwriters exercised their over-allotment option associated with MMHs unit offering completed in December 2003. As a result, MMH sold an additional 675,000 common units of the Partnership, with all of the proceeds from this sale going to MMH.
22
On January 29, 2004, the Partnership announced that it had acquired ownership in 14 refined petroleum products terminals located in the southeastern United States for $24.8 million. The partnership previously owned a 79% interest in eight of these terminals and purchased the remaining interest from Murphy Oil USA, Inc. In addition, the acquisition includes sole ownership of six terminals that were previously jointly owned by Murphy Oil USA, Inc. and Colonial Pipeline Company.
On February 13, 2004, the Partnership paid cash distributions of $0.83 per unit on its outstanding common and subordinated units to unitholders of record at the close of business on February 6, 2004. The total distribution was $25.8 million.
Also, associated with the declaration and payment of the cash distributions in February 2004, 25% of the partnerships subordinated units, or 1,419,923 units, converted to common units on the record date of February 6, 2004. Magellans partnership agreement provides for the conversion because quarterly distributions have equaled or exceeded the Partnerships $0.525 per unit minimum quarterly distribution for three consecutive years.
In February 2004, the Partnership entered into three separate agreements with two different banks for forward interest rate swaps totaling $150.0 million. The swaps begin in October 2007, when the Partnership expects to refinance the majority of Magellan Pipelines $480.0 million senior secured notes. Under the swap agreements, the Partnership will pay fixed interest rates and will receive LIBOR in return for a ten-year period, which is the assumed tenure of replacement debt. The average fixed rate on the swap is 5.9%.
On March 2, 2004, the Partnership acquired a 50% ownership in Osage Pipe Line Company, LLC, which owns the Osage pipeline, for $25.0 million from National Cooperative Refinery Association (NCRA). The 135-mile Osage pipeline transports crude oil from Cushing, Oklahoma to El Dorado, Kansas and has connections to the NCRA refinery in McPherson, Kansas and the Frontier refinery in El Dorado, Kansas. The remaining 50% interest in the Osage Pipe Line Company, LLC will continue to be owned by NCRA.
23