THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF DEP HOLDINGS, LLC A Delaware Limited Liability Company
Exhibit 3.2
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
DEP HOLDINGS, LLC
A Delaware Limited Liability Company
LIMITED LIABILITY COMPANY AGREEMENT
OF
DEP HOLDINGS, LLC
A Delaware Limited Liability Company
This Third Amended and Restated Limited Liability Company Agreement (this “Agreement”)
of DEP Holdings, LLC, a Delaware limited liability company (the “Company”), dated effective
September 7, 2011, is entered into by Enterprise Products Operating LLC, a Delaware limited
liability company, as the sole member (the “Member”) of the Company.
RECITALS
A. The Company owns all of the general partner interest in, and is the sole general partner
of, Xxxxxx Energy Partners L.P., a Delaware limited partnership (“Xxxxxx”).
B. The Second Amended and Restated Limited Liability Company Agreement of DEP Holdings, LLC
was executed effective May 3, 2007 by its sole member, Enterprise Products Operating L.P. and
amended by the First Amendment to the Second Amended and Restated Limited Liability Company
Agreement of DEP Holdings, LLC on November 6, 2008 (the “Existing Agreement”).
C. The Member deems it advisable to amend and restate the Existing Agreement in its entirety
as set forth herein.
1. Name. The name of the Company is:
DEP Holdings, LLC
2. Formation. The Company was organized as a Delaware limited liability company by
the filing of a Certificate of Formation (the “Certificate of Formation”) on September 28,
2006 with the Secretary of State of the State of Delaware under and pursuant to the Delaware
Limited Liability Company Act (the “Act”) .
3. Purposes. The purposes of the Company are the transaction of any or all lawful
business for which limited liability companies may be organized under the Act.
4. Powers. In furtherance of its purposes, but subject to all of the provisions of
this Agreement, the Company shall have the power and is hereby authorized to:
(a) Acquire by purchase, lease, contribution of property or otherwise, own, hold,
sell, convey, transfer or dispose of any real or personal property that may be necessary,
convenient, or incidental to the accomplishment of the purposes of the Company;
(b) Act as a trustee, executor, nominee, bailee, director, officer, agent or in some
other fiduciary capacity for any Person (as defined below) and to exercise all of the
powers, duties, rights and responsibilities associated therewith;
(c) Take any and all actions necessary, convenient or appropriate as trustee,
executor, nominee, bailee, director, officer, agent or fiduciary, including the granting or
approval of waivers, consents or amendments of rights or powers relating thereto and the
execution of appropriate documents to evidence such waivers, consents or amendments;
(d) Operate, purchase, maintain, finance, improve, own, sell, convey, assign,
mortgage, lease or demolish or otherwise dispose of any real or personal property that may
be necessary, convenient or incidental to the accomplishment of the purposes of the
Company;
(e) Invest any funds of the Company pending distribution or payment of the same
pursuant to the provisions of this Agreement;
(f) Enter into, perform and carry out contracts of any kind, including without
limitation, contracts with any Person affiliated with the Member, deemed by the Member to
be necessary to, in connection with, convenient to, or incidental to the accomplishment of
the purposes of the Company;
(g) Employ or otherwise engage employees, managers, contractors, advisors, attorneys
and consultants and pay reasonable compensation for such services;
(h) Enter into partnerships, limited liability companies, trusts, associations,
corporations or other ventures with other Persons in furtherance of the purposes of the
Company; and
(i) Do such other things and engage in such other activities related to the foregoing
as may be necessary, convenient or incidental to the conduct of the business of the
Company, and have and exercise all of the powers and rights conferred upon limited
liability companies formed pursuant to the Act.
As used in this Agreement, “Person” means a natural person, partnership (whether general or
limited), limited liability company, governmental entity, trust, estate, association, corporation,
venture, custodian, nominee or any other individual or entity in its own or any representative
capacity.
5. Principal Business Office. The principal business office of the Company shall be
located at such location as may hereafter be determined by the Member.
6. Registered Agent and Registered Office. The address of the initial
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registered office and name of the initial registered agent of the Company in the State of
Delaware, upon whom process against the Company may be served, is as contained in the Certificate
of Formation filed with the Secretary of State of the State of Delaware. At any time, the Member
may designate another registered agent and/or registered office.
7. Member. The name and the address of the Member are as follows:
Address
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
8. Limited Liability. Except as otherwise provided by the Act, the debts, obligations
and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and the Member shall not be obligated personally
for any such debt, obligation or liability of the Company solely by reason of being a member of the
Company.
9. Capital Contributions. The Member may make capital contributions to the Company,
in cash, property or other assets as the Member in its sole discretion shall determine from time to
time, but shall have no obligation to do so.
10. Allocation of Profits and Losses. The Company’s profits and losses shall be
allocated solely to the Member.
11. Distributions. Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Member. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not make a distribution to the Member on account of
its interest in the Company if such distribution would violate Section 18-607 of the Act or other
applicable Law. “Law” means any applicable constitutional provision, statute, act, code,
law, regulation, rule, ordinance, order, decree, ruling, proclamation, resolution, judgment,
decision, declaration or interpretative or advisory opinion or letter of a governmental authority.
12. Management. The management of the Company shall be exclusively vested in a Board
of Directors (the “Board” or “Board of Directors”) and, subject to the direction of
the Board, the officers (the “Officers”), who shall collectively (Board and Officers)
constitute “managers” of the Company within the meaning of the Act. The authority and functions of
the Board on the one hand and of the Officers on the other shall be identical to the activity and
functions of the board of directors and officers, respectively, of a corporation organized under
the Delaware General Corporation Law. Thus, the business and affairs of the Company shall be
managed by the Board, and the day-to-day activities of
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the Company shall be conducted on the Company’s behalf by the Officers, who shall be agents of
the Company.
13. Board of Directors. The Board shall consist of one or more individuals (the
“Directors”) appointed by the Member, such number of Directors to be determined from time
to time by the Member. Vacancies on the Board for whatever cause shall be filled by the Member.
The Directors shall hold office until their respective successors are chosen and qualify or until
their earlier death, resignation or until removed by the Member, in the Member’s discretion. The
Board may act (a) by majority vote of Directors present at a meeting at which a quorum (consisting
of a majority of Directors) is present or (b) by written consent of a majority of the Directors.
14. Officers. The Board may, from time to time as it deems advisable, select natural
persons, who shall be agents of the Company, and designate them as Officers of the Company and
assign titles (including, without limitation, Chairman, President, Vice President, Secretary,
Treasurer, Assistant Secretary and Assistant Treasurer) to any such person. Unless the Board
decides otherwise, if the title is one commonly used for officers of a business corporation formed
under the Delaware General Corporation Law, the assignment of such title shall constitute the
delegation to such person of the authorities and duties that are normally associated with that
office. Any delegation pursuant to this Section 14 may be revoked at any time by the Board. An
Officer may be removed with or without cause by the Board.
15. Other Business. The Member may engage in or possess an interest in other business
ventures of every kind and description, independently or with others. The Company shall not have
any rights in or to such independent ventures or the income or profits therefrom by virtue of this
Agreement.
16. Indemnification.
(a) To the fullest extent permitted by Law but subject to the limitations expressly
provided in this Agreement, each Indemnitee (as defined below) shall be indemnified and
held harmless by the Company from and against any and all losses, claims, damages,
liabilities (joint or several), expenses (including reasonable legal fees and expenses),
judgments, fines, penalties, interest, settlements and other amounts arising from any and
all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative
or investigative, in which any such person may be involved, or is threatened to be
involved, as a party or otherwise, by reason of such person’s status as (i) a present or
former member of the Board of Directors or any committee thereof, (ii) a present or former
Member, (iii) a present or former Officer, or (iv) a Person serving at the request of the
Company in another entity in a similar capacity as that referred to in the immediately
preceding clauses (i) or (iii), provided, that the Person described in the immediately
preceding clauses (i), (ii), (iii) or (iv) (“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
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of the matter for which the Indemnitee is seeking indemnification pursuant to this
Section 16, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or,
in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was
unlawful. Any indemnification pursuant to this Section 16 shall be made only out of the
assets of the Company.
(b) To the fullest extent permitted by Law, expenses (including reasonable legal fees
and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 16(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 an 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 16.
(c) The indemnification provided by this Section 16 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.
(d) The Company may purchase and maintain insurance, on behalf of the members of the
Board of Directors, the Officers and such other persons as the Board of Directors shall
determine, against any liability that may be asserted against or expense that may be
incurred by such person in connection with the Company’s activities or such person’s
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 16, the Company shall be deemed to have requested an
Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by
the Indemnitee of such Indemnitee’s duties to the Company also imposes duties on, or
otherwise involves services by, the Indemnitee 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 16;
and action taken or omitted by the Indemnitee with respect to an employee benefit plan in
the performance of such Indemnitee’s duties for a purpose reasonably believed by such
Indemnitee 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) In no event may an Indemnitee subject any Members of the Company to personal
liability by reason of the indemnification provisions of this Agreement.
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(g) An Indemnitee shall not be denied indemnification in whole or in part under this
Section 16 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 16 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 16 or any provision hereof
shall in any manner terminate, reduce or impair either the right of any past, present or
future Indemnitee to be indemnified by the Company or the obligation of the Company to
indemnify any such Indemnitee under and in accordance with the provisions of this Section
16 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,
and provided such Person became an Indemnitee hereunder prior to such amendment,
modification or repeal.
(j) THE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 16 ARE INTENDED BY
THE PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE
FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, FAULT OR OTHER
CONDUCT.
17. 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, the Members or any other
Person 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 in a court
of competent jurisdiction determining that, in respect of the matter in question, the
Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a
criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.
(b) Subject to its obligations and duties as set forth in Sections 12 and 13, the
Board of Directors and any committee thereof may exercise any of the powers granted to it
by this Agreement and perform any of the duties imposed upon it hereunder either directly
or by or through the Company’s Officers or agents, and neither the Board of Directors nor
any committee thereof shall be responsible for any misconduct or negligence on the part of
any such Officer or agent appointed by the Board of Directors or any committee thereof in
good faith.
(c) Any amendment, modification or repeal of this Section 17 or any
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provision hereof shall be prospective only and shall not in any way affect the
limitations on liability under this Section 17 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 be asserted.
18. Assignments. The Member may at any time assign in whole or in part its limited
liability company interest in the Company. If the Member transfers all of its interest in the
Company pursuant to this Section 18, the transferee shall be admitted to the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and conditions of this
Agreement. Such admission shall be deemed effective immediately prior to the transfer, and,
immediately following such admission, the transferor Member shall cease to be a member of the
Company.
19. Resignation. The Member may at any time resign from the Company. If the Member
resigns pursuant to this Section 19, an additional member shall be admitted to the Company, subject
to Section 20 hereof, upon its execution of an instrument signifying its agreement to be bound by
the terms and conditions of this Agreement. Such admission shall be deemed effective immediately
prior to the resignation, and, immediately following such admission, the resigning Member shall
cease to be a member of the Company.
20. Admission of Additional Members. One or more additional members of the Company
may be admitted to the Company with the written consent of the Member.
21. Dissolution.
(a) The Company shall dissolve and its affairs shall be wound up upon the first to
occur of the following: (i) the written consent of the Member; (ii) at any time there are
no members of the Company unless, within 90 days of the occurrence of the event that
terminated the continued membership of the last remaining member of the Company (the
“Termination Event”), the personal representative of the last remaining member
agrees in writing to continue the Company and to the admission to the Company of such
personal representative or its nominee or designee as a Member, effective as of the
occurrence of the Termination Event, and such successor or its nominee or designee shall be
admitted upon its execution of an instrument signifying its agreement to be bound by the
terms and conditions of this Agreement; or (iii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act.
(b) The bankruptcy of the Member shall not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the Company shall
continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the Company in an
orderly manner), and the assets of the Company shall be applied in the manner, and in the
order of priority, set forth in Section 18-804 of the Act.
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22. Severability of Provisions. Each provision of this Agreement 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 Agreement that are
valid, enforceable and legal.
23. Entire Agreement; Interpretation Under the Act. This Agreement constitutes the
entire agreement of the Member with respect to the subject matter hereof. In the event of a direct
conflict between the provisions of this Agreement and (a) any provision of the Certificate of
Formation, or (b) any mandatory, non-waivable provision of the Act, such provision of the
Certificate of Formation or the Act shall control. If any provision of the Act provides that it
may be varied or superseded in the 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.
24. Governing Law. 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.
25. Amendments. This Agreement may not be modified, altered, supplemented or amended
except pursuant to a written agreement executed and delivered by the Member.
26. Sole Benefit of Member. The provisions of this Agreement (including Section 8)
are intended solely to benefit the Member and, to the fullest extent permitted by applicable Law,
shall not be construed as conferring any benefit upon any creditor of the Company (and no such
creditor shall be a third-party beneficiary of this Agreement), and no Member shall have any duty
or obligation to any creditor of the Company to make any contributions or payments to the Company.
Signature Page Follows.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed
this Agreement as of the date set forth above.
| ENTERPRISE PRODUCTS OPERATING LLC |
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| By: | Enterprise Products OLPGP, Inc., its sole manager |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| President and Chief Executive Officer | ||||
Third Amended and Restated Xxxxxx XX LLC Agreement
