AGREEMENT OF LIMITED PARTNERSHIP OF DEP OPERATING PARTNERSHIP, L.P.
EXHIBIT 3.8
AGREEMENT OF
LIMITED PARTNERSHIP OF
DEP OPERATING PARTNERSHIP, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP (this “Agreement”), dated as of September 29, 2006, is
entered into and executed by DEP OLPGP, LLC a Delaware limited liability company, as General
Partner, and Xxxxxx Energy Partners L.P., a Delaware limited partnership, as Limited Partner.
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.
“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 polices of a Person, whether
through ownership of voting securities.
“Certificate of Limited Partnership” means the Certificate of Limited Partnership filed with
the Secretary of State of the State of Delaware as described in the first sentence of Section 2.5
as amended or restated from time to time.
“Delaware Act” means the Delaware Revised Uniform Limited Partnership Act, as amended from
time to time, and any successor to such act.
“General Partner” means DEP OLPGP, LLC, a Delaware limited liability company.
“Indemnitee” means (a) the General Partner, (b) any Person who is an Affiliate of the General
Partner, (c) any Person who is serving at the request of the General Partner or any Affiliate of
the General Partner as a member, partner, director, officer, fiduciary or trustee of the General
Partner or any subsidiary or other Affiliate controlled by the Partnership, and (d) any Person the
General Partner designates as an “Indemnitee” for purposes of this Agreement.
“Limited Partner” means Xxxxxx Energy Partners L.P., a Delaware limited partnership.
“Partner” means the General Partner or the Limited Partner.
“Partnership” means DEP Operating Partnership, L.P., a Delaware limited partnership.
“Person” means an individual or a corporation, firm, limited liability company, partnership,
joint venture, unincorporated organization, association, government agency or political subdivision
thereof or other entity.
“Percentage Interest” means, with respect to any Partner, the percentage of cash contributed
by such Partner to the Partnership as a percentage of all cash contributed by all the Partners to
the Partnership.
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 Formation. Subject to the provisions of this Agreement, the General Partner and the
Limited Partner have formed the Partnership as a limited partnership pursuant to the provisions of
the Delaware Act. The General Partner and the Limited Partner hereby enter into this Agreement to
set forth the rights and obligations of the Partnership and certain matters related thereto. Except
as expressly provided herein to the contrary, the rights and obligations of the Partners and the
administration, dissolution and termination of the Partnership shall be governed by the Delaware
Act.
2.2 Name. The name of the Partnership shall be, and the business of the Partnership shall be
conducted under the name of, “DEP Operating Partnership, L.P.”
2.3 Principal Office; Registered Office.
(a) The principal office of the Partnership shall be at 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxx 00000 or such other place as the General Partner may from time to time designate.
(b) The address of the Partnership’s registered office in the State of Delaware shall be the
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and the name of the
Partnership’s registered agent for service of process at such address shall be The Corporation
Trust Company.
2.4 Term. The Partnership shall continue in existence until an election to dissolve the
Partnership is made by the General Partner.
2.5 Organizational Certificate. A Certificate of Limited Partnership of the Partnership has
been filed by the General Partner with the Secretary of State of the State of Delaware as required
by the Delaware 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 State of Delaware and any state 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 Delaware and any state or jurisdiction
in which the Partnership may elect to do business.
2.6 Partnership Interests. Effective as of the date hereof, the Partners shall have Percentage
Interests as set forth below:
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General Partner
|
Percentage Interest | |
DEP OLPGP, LLC
|
.001% general partner interest | |
Limited Partner
|
Percentage Interest | |
Xxxxxx Energy Partners L.P.
|
99.999% limited partner interest |
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 Delaware Act.
ARTICLE IV
CAPITAL CONTRIBUTIONS
At or around the date hereof, the Limited Partner contributed to the Partnership an aggregate
of $999.99 in cash and the General Partner contributed to the Partnership $0.01 in cash.
ARTICLE V
CAPITAL ACCOUNT ALLOCATIONS
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 Internal Revenue
Code of 1986, as amended (the “Code”), and as determined by the General Partner as consistent
therewith.
5.2 Allocations. For 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 pursuant thereto.
5.3 Distributions. From time to time, but not less often than quarterly, the General Partner
shall review the Partnership’s accounts to determine whether distributions are appropriate. The
General Partner may make such cash distribution as it, in its sole discretion, may determine
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, however, 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
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entities. All distributions by the General Partner shall be made in accordance with the
Percentage Interests of the Partners.
ARTICLE VI
MANAGEMENT AND OPERATIONS OF BUSINESS
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; the
Limited Partner shall not have any power to control or manage the Partnership.
ARTICLE VII
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
The Limited Partner shall have no liability under this Agreement except as provided in Article
IV.
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
The Partnership shall be dissolved, and its affairs shall be wound up as provided in Section
2.4.
ARTICLE IX
AMENDMENT OF PARTNERSHIP AGREEMENT
The General Partner may amend any provision of this Agreement without the consent of the
Limited Partner and may execute, swear to, acknowledge, deliver, file and record whatever documents
may be required in connection therewith.
ARTICLE X
INDEMNIFICATION
10.1 No Indemnitee shall be liable to the Partnership for any act or omission based upon
errors of judgment or other fault in connection with the business or affairs of the Partnership
(including any act or omission that constitutes negligence of such Indemnitee or for which such
Indemnitee is strictly liable) if such Indemnitee’s conduct shall not have constituted gross
negligence or willful misconduct.
10.2 To the fullest extent permitted by law, the Indemnitee shall be indemnified and held
harmless by the Partnership from and against any and all losses, claims, damages, settlements and
other amounts (collectively, “Losses”) arising from any and all claims (including attorneys’ fees
and expenses, as such fees and expenses are incurred), demands, actions, suits or
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proceedings (civil, criminal, administrative or investigative), in which it may be involved,
as a party or otherwise, by reason of the management of the affairs of the Partnership, whether or
not it continued to be an Indemnitee or involved in management of the affairs of the Partnership at
the time any such liability or expense is paid or incurred, including Losses arising from the
negligence or strict liability of such Indemnitee; provided that an Indemnitee shall not be
entitled to the foregoing indemnification if a court of competent jurisdiction shall have
determined that such Losses resulted primarily from the gross negligence or willful misconduct of
such Indemnitee. The termination of a proceeding by judgment, order, settlement or conviction
under a plea of nolo contendere, or its equivalent, shall not, of itself, create any presumption
that such Losses resulted primarily from the gross negligence or willful misconduct of an
Indemnitee or that the conduct giving rise to such liability was not in the best interest of the
Partnership. The Partnership shall also indemnify each of the Indemnitees if it is or was a party
or is threatened to be made a party to any threatened, pending or completed action by or in the
right of the Partnership to procure a judgment in its favor by reason of the fact that such
Indemnitee is or was an agent of the Partnership, against any Losses incurred by such Indemnitee in
connection with the defense or settlement of such action; provided that such Indemnitee shall not
be entitled to the foregoing indemnification if a court of competent jurisdiction shall have
determined that any such Losses resulted from the gross negligence or willful misconduct of such
Indemnitee. The Partnership may advance an Indemnitee any expenses (including, without
limitation, attorneys’ fees and expenses) incurred as a result of any demand, action, suit or
proceeding referred to in this paragraph (b) provided that (i) the legal action relates to the
performance of duties or services by such Indemnitee on behalf of the Partnership; and (ii) such
Indemnitee provides a written undertaking to repay to the Partnership the amounts of such advances
in the event that such Indemnitee is determined to be not entitled to indemnification hereunder.
10.3 The indemnification provided by this Section 10 shall not be deemed to be exclusive of
any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law, in
equity or otherwise, and shall inure to the benefit of the heirs, successors and administrators of
such Indemnitee.
10.4 Any indemnification pursuant to this Section 10 will be payable only from the assets of
the Partnership.
ARTICLE XI
GENERAL PROVISIONS
11.1 Addresses and Notices. Any notice to the Partnership, the General Partner or the Limited
Partner shall be deemed given if received by it in writing at the principal office of the
Partnership designated pursuant to Section 2.3(a).
11.2 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns.
11.3 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.
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11.4 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.
11.5 Applicable Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware.
11.6 Counterparts. This Agreement may be executed (by original or telecopied signature) in
counterparts and by the different parties hereto in separate counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute but one and the same
instrument.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the General Partner and the
Limited Partner as of the date set forth above.
| GENERAL PARTNER: | ||||||||||
| DEP OLPGP, LLC | ||||||||||
| By: | Xxxxxx Energy Partners L.P., its Sole Member | |||||||||
| By: | DEP Holdings, LLC, its General Partner | |||||||||
| By: | /s Xxxxxxx X. Xxxxxxxx | |||||||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| LIMITED PARTNER: | ||||||||
| XXXXXX ENERGY PARTNERS L.P. | ||||||||
| By: | DEP Holdings LLC, its General Partner | |||||||
| By: | /s Xxxxxxx X. Xxxxxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||||
| Title: | President and Chief Executive Officer | |||||||
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