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Exhibit 3.5
AGREEMENT OF LIMITED PARTNERSHIP
OF
CHEVRON XXXXXXXX CHEMICAL COMPANY LP
THE UNDERSIGNED, in consideration of the mutual covenants of the
parties herein contained and other good and valuable consideration, the receipt
and sufficiency are hereby acknowledged, are executing this Agreement of Limited
Partnership ("Agreement") for the purpose of forming a limited partnership (the
"Partnership") pursuant to the provisions of the Delaware Revised Uniform
Limited Partnership Act, 6 Del. C. Sections 17-101 et seq. (the "LP Act"),
and do hereby agree as follows:
1. Name. The name of the Partnership shall be Chevron Xxxxxxxx
Chemical Company LP, or such other name as the General Partner may from time to
time hereafter designate.
2. Definitions. In addition to terms otherwise defined herein,
the following terms are used herein as defined below:
"Capital Contribution" means, with respect to any Partner, the cash,
property, services or promissory obligations (if any) contributed by such
Partner to the Partnership in accordance with Section 8 hereof (the amount
or agreed value of which is set forth on SCHEDULE I).
"Event of Withdrawal of a General Partner" means an event that
causes a person or entity to cease to be a General Partner as provided in
Section 17-402 of the LP Act.
"General Partners" means the Initial General Partner and any or all
other persons or entities admitted as additional or substituted General
Partners pursuant to the provisions of this Agreement, so long as they
remain General Partners. Reference to a "General Partner" means any one of
the General Partners.
"Initial General Partner" means Chevron Xxxxxxxx Chemical Holdings
II LLC, a Delaware limited liability company.
"Initial Limited Partner" means Chevron Xxxxxxxx Chemical Holdings I
LLC, a Delaware limited liability company.
"Initial Partners" means the Initial General Partner and the
Initial Limited Partner.
"Interest" means the ownership interest of a Partner in the
Partnership (which shall be considered personal property for all
purposes), consisting of (i) such Partner's Percentage Interest in
profits, losses, allocations and distributions (if any), (ii) such
Partner's right to vote or grant or withhold consents with respect to
Partnership matters as provided herein or in the LP Act, and (iii) such
Partner's other rights and privileges as herein provided.
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"Limited Partners" means the Initial Limited Partner and all other
persons or entities admitted as additional or substituted Limited Partners
pursuant to this Agreement, so long as they remain Limited Partners.
Reference to a "Limited Partner" means any one of the Limited Partners.
"Majority in Interest of the Limited Partners" means Limited
Partners whose Percentage Interests aggregate to greater than 50% of the
Percentage interests of all Limited Partners; provided, however, that at
any time that there are no Limited Partners having Percentage Interests,
Majority in Interest of the Limited Partners means a majority in number of
the Limited Partners.
"Partners" means those persons or entities who from time to time are
the General Partners and the Limited Partners. Reference to a "Partner"
means any one of the Partners.
"Percentage Interest" means a Partner's share of the profits and
losses of the Partnership and the Partner's percentage right to receive
distributions of Partnership assets. The Percentage Interest of each
Partner shall be the percentage set forth opposite such Partner's name on
SCHEDULE I, as such schedule shall be amended from time to time in
accordance with the provisions hereof. Subject to the provisions of
Section 8(a) hereof, the combined Percentage Interest of all Partners
shall at all times equal 100%.
Words used herein, regardless of the number and gender used, shall be deemed and
construed to include any other number, singular or plural, and any other gender,
masculine, feminine or neuter, as the context requires, and, as used herein,
unless the context clearly requires otherwise, the words "hereof," "herein," and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any particular provisions hereof.
3. Purpose. The purpose of the Partnership shall be to engage in
any lawful business that may be engaged in by a limited partnership organized
under the LP Act, as such business activities may be determined by the General
Partners from time to time.
4. Office.
(a) The principal office of the Partnership, and such
additional offices as the General Partners may determine to establish, shall be
located at such place or places inside or outside the State of Delaware as the
General Partners may designate from time to time.
(b) The registered office of the Partnership in the State of
Delaware is located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000. The registered agent of the Partnership for service of process
at such address is Delaware Corporation Organizers, Inc. The General Partners
may change such registered office or registered agent at any time.
5. Partners. The name and business or residence address of each
Partner of the Partnership, the General Partners and the Limited Partners being
separately designated, are as set forth on SCHEDULE I, as the same may be
amended from time to time.
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6. Term. The Partnership shall continue until dissolved and
terminated in accordance with Section 14 of this Agreement.
7. Management of the Partnership.
(a) The General Partners shall have the exclusive right to
manage the business of the Partnership, and shall have all powers and rights
necessary, appropriate or advisable to effectuate and carry out the purposes and
business of the Partnership and, in general, all powers permitted to be
exercised by a general partner under the LP Act. The General Partners may
appoint, employ, or otherwise contract with any persons or entities for the
transaction of the business of the Partnership or the performance of services
for or on behalf of the Partnership, and the General Partners may delegate to
any such person (who may be designated an officer of the Partnership) or entity
such authority to act on behalf of the Partnership as the General Partner may
from time to time deem appropriate.
(b) Except as to actions herein specified to be taken by all
the General Partners or by the General Partners acting unanimously, whenever
there is more than one General Partner of the Partnership, the duties and powers
of the General Partners may be exercised by any one of the General Partners
acting alone.
(c) No Limited Partner, in his status as such, shall have
the right to take part in the management or control of the business of the
Partnership or to act for or bind the Partnership or otherwise to transact any
business on behalf of the Partnership.
(d) Any action to approve or consent to any matter hereunder
or pursuant to the LP Act by the General Partners, the Limited Partners or all
Partners may be accomplished at a meeting of the applicable Partners, held at
such time and place as shall have been agreed on by them, or by written consent
executed by at least such number or percentage in interest of Partners as is
required hereunder or under the LP Act to approve the matter at issue. Written
consents may be executed and delivered by telecopy or like electronic means.
8. Capital Contributions: Capital Accounts: Administrative
Matters.
(a) At the time of execution of this Agreement and formation
of the Partnership, the Initial Partners shall not make any contributions to the
capital of the Partnership and shall not acquire any "partnership interest" (as
defined in Section 17-101 of the LP Act) in the Partnership. Accordingly at the
time of formation, neither of the Initial Partners shall have an economic
interest in the Partnership or any right to receive allocations of profit or
loss or distributions of Partnership assets hereunder or under the LP Act, and
the Percentage Interest of each Initial Partner shall be zero. Notwithstanding
the foregoing, at any time following formation of the Partnership, the Initial
Partners may make Capital Contributions and receive Percentage Interests if and
to the extent the Partners, acting unanimously, so determine. Further, the
Initial Partners may receive transfers of Interests in the Partnership in
accordance with the terms of this Agreement and thereby acquire Percentage
Interests in the Partnership (to the extent, if any, that the transferee held
Percentage Interests). Persons or entities hereafter admitted as General
Partners or Limited Partners of the Partnership shall make such contributions of
cash (or
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promissory obligations), property or services to the Partnership and shall
receive such Percentage Interests (if any), as shall be determined by the
Partners, acting unanimously, at the time of each such admission.
(b) The fiscal year of the Partnership shall be a calendar
year. The books and records of the Partnership shall be maintained in accordance
with generally accepted accounting principles.
(c) All items of Partnership income, gain, loss, deduction,
credit or the like shall be allocated among the Partners having Percentage
Interests pro rata in accordance with their respective Percentage Interests as
set forth in SCHEDULE I.
(d) Notwithstanding any other provision hereof, so long as
the Partnership is treated as having a single owner for federal, state or local
income tax purposes, it is the intention of the Partners that the Partnership
shall be disregarded as an entity separate from such single owner and,
accordingly, that for such federal, state or local income tax purposes all items
of income, gain, loss, deduction, credit or the like of the Partnership shall be
treated as items of income, gain, loss, deduction, credit or the like of such
single owner. The General Partners shall cause the Partnership to make any
necessary or appropriate elections under federal, state or local income tax laws
or regulations, and the Partners agree to execute such documents or to take such
other actions, as may be required to effectuate such intention.
9. Assignments of Partnership Interest; Substituted Partners.
(a) No Limited Partner may sell, assign, pledge or otherwise
transfer or encumber (collectively "transfer") all or any part of his Interest
in the Partnership, and no transferee of all or any part of the Interest of a
Limited Partner shall be admitted as a substituted Limited Partner, without, in
either event, having obtained the prior written consent of all of the General
Partners.
(b) No General Partner may transfer all or any part of his
Interest in the Partnership, and no transferee of all or any part of the
Interest of a General Partner shall be admitted as a substituted General
Partner, without, in either event, having obtained the consent of all other
General Partners or, if none, the consent of a Majority in Interest of the
Limited Partners.
(c) The General Partners shall amend SCHEDULE I from time to
time to reflect transfers made in accordance with, and as permitted under, this
Section 9. Any purported transfer in violation of this Section 9 shall be null
and void and shall not be recognized by the Partnership.
10. Withdrawal. No Partner shall have the right to withdraw from
the Partnership except with the consent of all of the General Partners and upon
such terms and conditions as may be specifically agreed upon between the General
Partners and the withdrawing Partner. The provisions hereof with respect to
distributions upon withdrawal are exclusive and no
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Partner shall be entitled to claim any further or different distribution upon
withdrawal under Section 17-604 of the LP Act or otherwise.
11. Additional Partners. The Partners, acting unanimously, shall
have the right to admit additional General Partners and additional Limited
Partners upon such terms and conditions, at such time or times, and for such
Capital Contributions as shall be determined by all of the Partners; and in
connection with any such admission, the General Partners shall amend SCHEDULE I
hereof to reflect the name, address and Capital Contribution of the additional
Partner and any agreed upon changes in the Partner's respective Percentage
Interests.
12. Distributions. Distributions of cash or other assets of the
Partnership shall be made at such times and in such amounts as the General
Partners may determine from time to time. Distributions shall be made to (and
profits and losses shall be allocated among) Partners having Percentage
Interests pro rata in accordance with their respective Percentage Interests.
13. Return of Capital. No Partner has the right to receive, and
the General Partners have absolute discretion to make, any distributions to a
Partner which include a return of all or any part of such Partner's Capital
Contribution, provided that upon the dissolution of the Partnership, the assets
of the Partnership shall be distributed as provided in Section 17-804 of the LP
Act. No Partner shall have any personal liability for the return of any
Partner's Capital Contribution. Any return of capital to the Partners shall be
payable solely from the assets of the Partnership.
14. Dissolution. Subject to the provisions of Section 15 of this
Agreement, the Partnership shall be dissolved and its affairs wound up and
terminated upon the first to occur of the following:
(a) The determination of all of the General Partners to
dissolve the Partnership; or
(b) The occurrence of an Event of Withdrawal of a General
Partner or any other event causing a dissolution of the Partnership under
Section 17-801 of the LP Act.
15. Continuation of the Partnership. Notwithstanding the
provisions of Section 14(b) hereof, the occurrence of an Event of Withdrawal of
a General Partner shall not dissolve the Partnership if at such time there are
one or more remaining General Partners and any one or more of such remaining
General Partners continue the business of the Partnership (any and all such
remaining General Partners being hereby authorized to continue the business of
the Partnership without dissolution). If upon the occurrence of an Event of
Withdrawal of a General Partner there shall be no remaining General Partner (or
if no remaining General Partner elects to continue the business of the
Partnership as provided in the preceding sentence), the Partnership nonetheless
shall not be dissolved and shall not be required to be wound up if, within
ninety (90) days after the occurrence of such Event of Withdrawal, all remaining
Partners agree in writing, to continue the business of the Partnership and, if
necessary or desired, to the appointment, effective as of the date of
withdrawal, of one or more additional General Partners.
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16. Amendments. Except as otherwise provided herein, this
Agreement may be amended only upon the written consent of all Partners.
17. Standard of Care; Indemnification of General Partners,
Officers, Employees and Agents.
(a) No General Partner shall have any personal liability
whatsoever to the Partnership or any other Partner by reason of such General
Partner's acts or omissions in connection with the conduct of the business of
the Partnership; provided, however, that nothing contained herein shall protect
any General Partner against any liability to the Partnership or the Partners to
which such General Partner would otherwise be subject by reason of (i) any act
or omission of such Partner that involves actual fraud or willful misconduct or
(ii) any transaction from which such General Partner derived improper personal
benefit.
(b) Except as may be limited by mandatory provisions of
applicable law, the Partnership shall indemnify and hold harmless each General
Partner and the officers, directors, stockholders, members, managers or partners
of any non-individual Partner (each an "Indemnified Person") against any and all
losses, claims, damages, expenses and liabilities (including, but not limited
to, any investigation, legal and other reasonable expenses incurred in
connection with, and any amounts paid in settlement of, any action, suit,
proceeding or claim) of any kind or nature whatsoever that such Indemnified
Person may at any time become subject to or liable for by reason of the
formation, operation or termination of the Partnership, or the Indemnified
Person's acting as a Partner under this Agreement, or the authorized actions of
such Indemnified Person in connection with the conduct of the affairs of the
Partnership (including, without limitation, indemnification against negligence,
gross negligence or breach of duty); provided, however, that no Indemnified
Person shall be entitled to indemnification if and to the extent that the
liability otherwise to be indemnified for results from (i) any act or omission
of such Indemnified Person that involves actual fraud or willful misconduct or
(ii) any transaction from which such Indemnified Person derived improper
personal benefit. The indemnities provided hereunder shall survive termination
of the Partnership and this Agreement. Each Indemnified Person shall have a
claim against the property and assets of the Partnership for payment of any
indemnity amounts from time to time due hereunder, which amounts shall be paid
or properly reserved for prior to the making of distributions by the Partnership
to Partners. Costs and expenses that are subject to indemnification hereunder
shall, at the request of any Indemnified Person, be advanced by the Partnership
to or on behalf of such Indemnified Person prior to final resolution of a
matter, so long as such Indemnified Person shall have provided the Partnership
with a written undertaking to reimburse the Partnership for all amounts so
advanced if it is ultimately determined that the Indemnified Person is not
entitled to indemnification hereunder.
(c) The contract rights to indemnification and to the
advancement of expenses conferred in this Section 17 shall not be exclusive of
any other right that any person may have or hereafter acquire under any statute,
agreement, vote of the Partners or otherwise.
(d) The Partnership may maintain insurance, at its expense,
to protect itself and any Partner, employee or agent of the Partnership or
another partnership, limited
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liability company, corporation, joint venture, trust or other enterprise against
any expense, liability or loss, whether or not the Partnership would have the
power to indemnify such person against such expense, liability or loss under the
LP Act.
(e) The Partnership may, to the extent authorized from time
to time by the General Partners, grant rights to indemnification and to
advancement of expenses to any employee or agent of the Partnership to the
fullest extent of the provisions of this Section 17 with respect to the
indemnification and advancement of expenses of General Partners of the
Partnership.
18. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of April 26, 2000.
GENERAL PARTNER:
CHEVRON XXXXXXXX CHEMICAL HOLDINGS II LLC
By: XXXXXXXX PETROLEUM COMPANY, Member
By:
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Name: X. X. Xxxxxx
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Title: Assistant Treasurer
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LIMITED PARTNER:
CHEVRON XXXXXXXX CHEMICAL HOLDINGS I LLC
By: XXXXXXXX PETROLEUM COMPANY, Member
By:
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Name: X. X. Xxxx
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Title: Assistant Treasurer
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SCHEDULE I
A. GENERAL PARTNERS
Capital Percentage
Name & Address Contribution Interest
-------------- ------------ --------
Chevron Xxxxxxxx Chemical Holdings II LLC $0 0%
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxxxx, XX 00000
B. LIMITED PARTNERS
Capital Percentage
Name & Address Contribution Interest
-------------- ------------ --------
Chevron Xxxxxxxx Chemical Holdings I LLC $0 0%
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxxxx, XX 00000
TOTAL $0 0%
