EXHIBIT 3.6
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
TEEKAY OFFSHORE OPERATING L.P.
DATED: AS OF ____________ __, 2006
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AMENDED AND RESTATED
AGREEMENT OF
LIMITED PARTNERSHIP
OF
TEEKAY OFFSHORE OPERATING L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF TEEKAY
OFFSHORE OPERATING L.P., dated as of ___________ __, 2006, is entered into and
executed by TEEKAY OFFSHORE OPERATING GP L.L.C., a Xxxxxxxx Islands limited
liability company, as General Partner, and TEEKAY SHIPPING CORPORATION, a
Xxxxxxxx Islands corporation, and TEEKAY OFFSHORE PARTNERS L.P., a Xxxxxxxx
Islands limited partnership, as Limited Partners.
RECITALS
WHEREAS, the Partnership was formed on September 25, 2006 pursuant to the
Act, subject to an Agreement of Limited Partnership dated as of September 25,
2006 entered into by Teekay Shipping Corporation as limited partner and the
General Partner as general partner.
WHEREAS, Teekay Shipping Corporation has transferred portions of its
limited partner interest in the Partnership to Teekay Offshore Partners L.P. and
Teekay Offshore GP L.L.C. and its interest in the General Partner to Teekay
Offshore Partners L.P., and Teekay Offshore GP L.L.C. has transferred its
interest in the Partnership to Teekay Offshore Partners L.P.
WHEREAS, the General Partner and Limited Partners now desire to amend and
restate the Agreement of Limited Partnership in its entirety upon the terms and
conditions stated below.
NOW, THEREFORE, the Agreement of Limited Partnership is hereby amended and
restated in its entirety as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated to the contrary, apply to the terms used in this Agreement.
"Act" means the Xxxxxxxx Islands Limited Partnership Act, as amended from
time to time, and any successor to such act.
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"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.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership of Teekay Offshore Operating L.P., as it may be amended,
supplemented or restated from time to time. This Agreement shall constitute a
"partnership agreement" as such term is defined in the Act.
"Certificate of Limited Partnership" means the Certificate of Limited
Partnership filed with the Registrar of Corporations of the Republic of the
Xxxxxxxx Islands as described in the first sentence of Section 2.5, as amended
or restated from time to time.
"Code" means the Internal Revenue Code of 1986, as amended, and in effect
from time to time. Any reference herein to a specific section or sections of the
Code shall be deemed to include a reference to any corresponding provision of
any successor law.
"General Partner" means Teekay Offshore Operating GP L.L.C., a Xxxxxxxx
Islands limited liability company, in its capacity as the general partner of the
Partnership, and any successor to Teekay Offshore Operating GP L.L.C., as the
general partner of the Partnership.
"Indemnitee" means (a) the General Partner, (b) any former General Partner,
(c) any Person who is or was an Affiliate of the General Partner or any former
General Partner, (d) any Person who is or was a member, partner, director,
officer, fiduciary or trustee of any Person which any of the preceding clauses
of this definition describes, (e) any Person who is or was serving at the
request of the General Partner or any former General Partner or any Affiliate of
the General Partner or any former General Partner as an officer, director,
member, partner, fiduciary or trustee of another Person, (provided, however,
that that Person shall not be an Indemnitee by reason of providing, on a
fee-for-services basis, trustee, fiduciary or custodial services), and (f)
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AGREEMENT OF LIMITED PARTNERSHIP
any other Person the General Partner designates as an "Indemnitee" for purposes
of this Agreement.
"Limited Partner" means the Persons listed as Limited Partners on Schedule
I, as it may be updated, amended, supplemented or restated from time to time by
the General Partner, and any other limited partner admitted to the Partnership
from time to time following the date of this Agreement.
"Partner" means the General Partner or any Limited Partner.
"Partnership" means Teekay Offshore Operating L.P., a Xxxxxxxx Islands
limited partnership.
"Percentage Interest" means, with respect to any Partner, the percentage
set forth on Schedule I next to such Partner's name under the heading
"Percentage Interest."
"Person" or "person" means an individual or a corporation, firm, limited
liability company, partnership, joint venture, trust, unincorporated
organization, association, governmental agency or political subdivision thereof
or other entity.
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1 Formation. Subject to the provisions of this Agreement, the
General Partner and Teekay Shipping Corporation as the initial limited partner
formed the Partnership as a limited partnership pursuant to the provisions of
the Act. The General Partner and the Limited Partners hereby enter into this
Agreement to set forth the rights and obligations of the Partners and certain
matters related thereto. Except as otherwise provided herein, the rights and
obligations of the Partners and the administration, dissolution and termination
of the Partnership shall be governed by the Act.
Section 2.2 Name. The name of the Partnership shall be, and the business of
the Partnership shall be conducted under the name of, "Teekay Offshore Operating
L.P."
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Section 2.3 Principal Office; Registered Office.
(a) The principal office of the Partnership shall be at Xxxxxxx Xxxxx,
Xxxxxxx Xxxxxxxxx Xxxx, Xxxx Xxx Xxxxxx & Blake Road, P.O. Box
AP-59212, Nassau, Bahamas, c/o Teekay Shipping Limited, or such other
place as the General Partner may from time to time designate. The
Partnership may maintain offices at such other places as the General
Partner deems advisable.
(b) Unless and until changed by the General Partner, the address of the
Partnership's registered office in the Xxxxxxxx Islands is Trust
Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Xxxxxxxx
Islands MH96960, and the name of the Partnership's registered agent
for service of process at such address shall be The Trust Company of
the Xxxxxxxx Islands, Inc.
Section 2.4 Term. The Partnership shall continue in existence until an
election by the General Partner to dissolve the Partnership.
Section 2.5 Organizational Certificate. A Certificate of Limited
Partnership of the Partnership has been filed by the General Partner with the
Registrar of Corporations of The Xxxxxxxx Islands as required by the Act. The
General Partner shall cause to be filed such other certificates or documents as
may be required for the formation, operation and qualification of a limited
partnership in the Xxxxxxxx Islands and any jurisdiction in which the
Partnership may elect to do business. The General Partner shall thereafter file
any necessary amendments to the Certificate of Limited Partnership and any such
other certificates and documents and do all things requisite to the maintenance
of the Partnership as a limited partnership (or as a partnership in which the
Limited Partners have limited liability) under the laws of the Xxxxxxxx Islands
and any jurisdiction in which the Partnership may elect to do business.
Section 2.6 Fiscal Year. The fiscal year of the Partnership shall be
January 1 to December 31.
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ARTICLE III
PURPOSE
The purpose and business of the Partnership shall be to engage in any
lawful activity for which limited partnerships may be organized under the Act.
ARTICLE IV
CAPITAL CONTRIBUTIONS; PERCENTAGE INTERESTS
No Partner shall have the obligation to make any additional capital
contribution to the Partnership. The Percentage Interests of the Partners are
set forth on Schedule I, as such schedule may be updated, amended, supplemented
or restated from time to time.
ARTICLE V
CAPITAL ACCOUNTS ALLOCATIONS
Section 5.1 Capital Accounts. The Partnership shall maintain a capital
account for each of the Partners in accordance with the regulations issued
pursuant to Section 704 of the Code and as determined by the General Partner as
consistent therewith.
Section 5.2 Allocations. For U.S. federal income tax purposes, each item of
income, gain, loss, deduction and credit of the Partnership shall be allocated
among the Partners in accordance with their Percentage Interests, except that
the General Partner shall have the authority to make such other allocations as
are necessary and appropriate to comply with Section 704 of the Code and the
regulations issued pursuant thereto.
Section 5.3 Reserves and Distributions. From time to time, but not less
often than quarterly, the General Partner shall review the Partnership's
accounts and determine the amount of the Partnership's available cash and
appropriate reserves (including cash reserves for future maintenance capital
expenditures, working capital and other matters), and the Partnership shall make
a distribution to the Partners of the available cash, subject to the reserves.
The General Partner's determination of the amount of distributions and reserves
shall be made on its behalf by its sole member, Teekay Offshore Partners L.P.
The General Partner may make such cash
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AGREEMENT OF LIMITED PARTNERSHIP
distributions as it may determine and without being limited to current or
accumulated income or gains from any Partnership funds, including, without
limitation, Partnership revenues, capital contributions or borrowed funds;
provided that no such distribution shall be made if, after giving effect
thereto, the liabilities of the Partnership exceed the fair market value of the
assets of the Partnership. In its sole discretion, the General Partner may,
subject to the foregoing proviso, also distribute to the Partners other
Partnership property or other securities of the Partnership or other entities.
All distributions, including distributions in liquidation of the Partnership,
shall be made in accordance with the Percentage Interests of the Partners.
ARTICLE VI
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 6.1 General Partners Authority; Reimbursement. Except as otherwise
expressly provided in this Agreement, all powers to control and manage the
business and affairs of the Partnership shall be vested exclusively in the
General Partner; and the Limited Partners shall not have any power to control or
manage the Partnership. The General Partner shall be reimbursed on a basis as
the General Partner may determine for (i) all direct and indirect expenses it
incurs or payments it makes on behalf of the Partnership (including salary,
bonus, incentive compensation and other amounts paid to any Person, including
Affiliates of the General Partner, to perform services for the Partnership or
for the General Partner in the discharge of its duties to the Partnership) and
(ii) all other direct and indirect expenses allocable to the Partnership or
otherwise incurred by the General Partner in connection with operating the
Partnership's business (including expenses allocated to the General Partner by
its Affiliates). The General Partner shall determine the expenses that are
allocable to the Partnership. Reimbursements pursuant to this Section 6.1 shall
be in addition to any reimbursement to the General Partner as a result of
indemnification pursuant to Section 6.4. The General Partner may be removed or
replaced only with the written consent of the General Partner and Limited
Partners having at least 75% of the Percentage Interests.
Section 6.2 Approval Required for Certain Action. In addition to matters
set forth in Section 5.2, the General Partner shall not cause the Partnership
to, and the Partnership shall not, take any of the following actions without the
approval or consent of the sole member of the
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TEEKAY OFFSHORE OPERATING L.P.
AGREEMENT OF LIMITED PARTNERSHIP
General Partner, Teekay Offshore Partners L.P. (which consent may be made
categorically or by policy):
- effecting any merger or consolidation involving the Partnership;
- effecting any sale or exchange of all or substantially all of
Partnership's assets;
- dissolving or liquidating the Partnership;
- creating or causing to exist any consensual restriction on the ability
of the Partnership or its subsidiaries to make distributions, pay any
indebtedness, make loans or advances or transfer assets to its Limited
Partners or their subsidiaries;
- settling or compromising any claim, dispute or litigation directly
against, or otherwise relating to indemnification by the Partnership
of, any of the directors or officers of the General Partner; or
- issuing additional interests in the Partnership.
Section 6.3 Conflict Committee Approval of Certain Actions. Without the
approval or consent of the conflicts committee of the board of directors of the
general partner of the sole member of the General Partner, Teekay Offshore
Partners L.P., the General Partner may not (a) amend the limited liability
company agreement of the General Partner or (b) amend this Agreement.
Section 6.4 Indemnification.
(a) To the fullest extent permitted by law but subject to the limitations
expressly provided in this Agreement, all Indemnitees shall be
indemnified and held harmless by the Partnership from and against any
and all losses, claims, damages, liabilities, joint or several,
expenses (including legal fees and expenses), judgments, fines,
penalties, interest, settlements or other amounts arising from any and
all claims, demands, actions, suits or proceedings, whether civil,
criminal, administrative or investigative, in which any Indemnitee may
be involved, or is threatened to be
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AGREEMENT OF LIMITED PARTNERSHIP
involved, as a party or otherwise, by reason of its status as an
Indemnitee; provided, that the Indemnitee shall not be indemnified and
held harmless if there has been a final and non-appealable judgment
entered by a court of competent jurisdiction determining that, in
respect of the matter for which the Indemnitee is seeking
indemnification pursuant to this Section 6.4, the Indemnitee acted in
bad faith or engaged in fraud or willful misconduct or, in the case of
a criminal matter, acted with knowledge that the Indemnitee's conduct
was unlawful. Any indemnification pursuant to this Section 6.4 shall
be made only out of the assets of the Partnership, it being agreed
that the Partners shall not be personally liable for such
indemnification and shall have no obligation to contribute or loan any
monies or property to the Partnership to enable it to effectuate such
indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees
and expenses) incurred by an Indemnitee who is indemnified pursuant to
this Section 6.4 in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Partnership
prior to a determination that the Indemnitee is not entitled to be
indemnified upon receipt by the Partnership of any undertaking by or
on behalf of the Indemnitee to repay such amount if it shall be
determined that the Indemnitee is not entitled to be indemnified as
authorized in this Section 6.4.
(c) The indemnification provided by this Section 6.4 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
Indemnitee's capacity as an Indemnitee and as to actions in any other
capacity, and shall continue as to an Indemnitee who has ceased to
serve in such capacity and shall inure to the benefit of the heirs,
successors, assigns and administrators of the Indemnitee.
(d) The Partnership may purchase and maintain (or reimburse any Partner or
its Affiliates for the cost of) insurance, on behalf of any Partner,
its Affiliates and such other Persons as the General Partner shall
determine, against any liability that may be asserted against, or
expense that may be incurred by, such Person in connection
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AGREEMENT OF LIMITED PARTNERSHIP
with the Partnership's activities or such Person's activities on
behalf of the Partnership, regardless of whether the Partnership would
have the power to indemnify such Person against such liability under
the provisions of this Agreement.
(e) For purposes of this Section 6.4, the Partnership shall be deemed to
have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by it of its duties to the
Partnership also imposes duties on, or otherwise involves services by,
it to the plan or participants or beneficiaries of the plan; excise
taxes assessed on an Indemnitee with respect to an employee benefit
plan pursuant to applicable law shall constitute "fines" within the
meaning of Section 6.4(a); and action taken or omitted by it with
respect to any employee benefit plan in the performance of its duties
for a purpose reasonably believed by it to be in the best interest of
the participants and beneficiaries of the plan shall be deemed to be
for a purpose that is in the best interests of the Partnership.
(f) In no event may an Indemnitee subject any of the Partners to personal
liability by reason of the indemnification provisions set forth in
this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part
under this Section 6.4 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 6.4 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and
shall not be deemed to create any rights for the benefit of any other
Persons.
(i) No amendment, modification or repeal of this Section 6.4 or any
provision hereof shall in any manner terminate, reduce or impair the
right of any past, present or future Indemnitee to be indemnified by
the Partnership, nor the obligations of the Partnership to indemnify
any such Indemnitee under and in accordance with the
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AGREEMENT OF LIMITED PARTNERSHIP
provisions of this Section 6.4 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 6.5 Liability of Indemnitees.
(a) Notwithstanding anything to the contrary set forth in this Agreement,
no Indemnitee shall be liable for monetary damages to the Partnership
for losses sustained or liabilities incurred as a result of any act or
omission of an Indemnitee unless there has been a final and
non-appealable judgment entered by a court of competent jurisdiction
determining that, in respect of the matter in question, the Indemnitee
acted in bad faith or engaged in fraud or willful misconduct or, in
the case of a criminal matter, acted with knowledge that the
Indemnitee's conduct was criminal.
(b) Any amendment, modification or repeal of this Section 6.5 or any
provision hereof shall be prospective only and shall not in any way
affect the limitations on the liability of the Indemnitees under this
Section 6.5 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 6.6 Loans or Contributions from the Partnership. The Partnership
may lend or contribute to any Affiliate or Limited Partner, and any Affiliate or
Limited Partner may borrow from the Partnership, funds on terms and conditions
determined by the General Partner.
ARTICLE VII
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
The Limited Partners shall have no liability under this Agreement.
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
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TEEKAY OFFSHORE OPERATING L.P.
AGREEMENT OF LIMITED PARTNERSHIP
The Partnership shall be dissolved, and its affairs shall be wound up, upon
the expiration of its term as provided in Section 2.4.
ARTICLE IX
AMENDMENT OF PARTNERSHIP AGREEMENT
Subject to Section 6.3, the General Partner may amend any provision of this
Agreement with the consent of the Limited Partners having at least 75% of the
Percentage Interests, and may execute, swear to, acknowledge, deliver, file and
record whatever documents may be required in connection therewith.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Addresses and Notices. Any notice to the Partnership shall be
deemed given if received by it in writing at the principal office of the
Partnership designated pursuant to Section 2.3(a). Any notice to the General
Partner or a Limited Partner shall be deemed given if received by it in writing
at the address designated in Schedule I, or such other place as the General
Partner or Limited Partner may from time to time designate.
Section 10.2 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
Section 10.3 Integration. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings pertaining thereto.
Section 10.4 Severability. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions hereof, or of such provision in other
respects, shall not be affected thereby.
Section 10.5 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the Xxxxxxxx Xxxxxxx.
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XXXXXX XXXXXXXX OPERATING L.P.
AGREEMENT OF LIMITED PARTNERSHIP
Section 10.6 No Third Party Beneficiary. This Agreement is made solely and
specifically for the benefit of the Partners and their successors and assigns
and no other Persons shall have any rights, interest or claims hereunder or be
entitled to any benefits under or on account of this Agreement as a third party
beneficiary or otherwise. None of the provisions of this Agreement shall be for
the benefit of, or shall be enforceable by, any creditor of the Partnership.
[Remainder of Page Intentionally Left Blank]
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TEEKAY OFFSHORE OPERATING L.P.
AGREEMENT OF LIMITED PARTNERSHIP
WHEREFORE, this Amended and Restated Agreement of Limited Partnership has
been duly executed by the General Partner and the Limited Partners as of the
date first above written.
GENERAL PARTNER:
TEEKAY OFFSHORE OPERATING GP L.L.C.
By: Teekay Offshore Partners L.P., its
Sole Member
By: Teekay Offshore GP L.L.C., its
General Partner
By:
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Xxxxx Xxxxxxx
Chief Executive Officer and Chief
Financial Officer
Place of execution:
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LIMITED PARTNERS:
TEEKAY SHIPPING CORPORATION
By:
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Xxxxxx Xxxxxxx
Executive Vice President, General
Counsel and Secretary
TEEKAY OFFSHORE PARTNERS L.P.
By: Teekay Offshore GP L.L.C., its
General Partner
By:
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Xxxxx Xxxxxxx
Chief Executive Officer and Chief
Financial Officer
Place of execution:
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SIGNATURE PAGE
TEEKAY OFFSHORE OPERATING L.P.
AGREEMENT OF LIMITED PARTNERSHIP
SCHEDULE I
As of __________, 2006
LIMITED PARTNER NAME AND ADDRESS: PERCENTAGE INTEREST:
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Teekay Shipping Corporation 74.0%
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx Xxxx
Xxxx Xxx Xxxxxx & Blake Road, P.O. Box AP-59212
Nassau, Bahamas
Teekay Offshore Partners L.P. 25.99%
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx Xxxx
Xxxx Xxx Xxxxxx & Blake Road, P.O. Box AP-59212
Nassau, Bahamas
c/o Teekay Shipping Limited
GENERAL PARTNER NAME AND ADDRESS: PERCENTAGE INTEREST:
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Teekay Offshore Operating GP L.L.C. 0.01%
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx Xxxx
Xxxx Xxx Xxxxxx & Blake Road, P.O. Box AP-59212
Nassau, Bahamas
c/o Teekay Shipping Limited
SIGNATURE PAGE
TEEKAY OFFSHORE OPERATING L.P.
AGREEMENT OF LIMITED PARTNERSHIP
