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Exhibit 3.1 EXECUTION COPY THIRD
AMENDMENT TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
DUNCAN ENERGY PARTNERS L.P. This
Third Amendment (this " Amendment ") to the Amended and
Restated Agreement of Limited Partnership of Duncan Energy Partners
L.P., dated effective as of February 5, 2007 (as amended
previously through the date hereof, the " Partnership
Agreement "), is entered into effective as of December 8,
2008, by DEP Holdings, LLC, a Delaware limited liability company
(the " General Partner "), as general partner of the
Partnership. Capitalized terms used but not defined herein are used
as defined in the Partnership Agreement. RECITALS
WHEREAS, Section 5.6 of the
Partnership Agreement provides that the General Partner, without
the approval of any Limited Partner except as otherwise provided in
the Partnership Agreement, may, for any Partnership purpose, at any
time or from time to time, issue additional Partnership Securities
for such consideration and on such terms and conditions as
determined by the General Partner; and
WHEREAS, Section 13.1(d)(i) 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 the General Partner
determines does not adversely affect the Limited Partners in any
material respect); and WHEREAS,
Section 13.1(g) 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 an amendment
that, the General Partner determines to be necessary or appropriate
in connection with the authorization of the issuance of any class
or series of Partnership Securities pursuant to Section 5.6 of
the Partnership Agreement; and
WHEREAS, the Partnership has entered
into a Purchase and Sale Agreement (the " Purchase Agreement
") with Enterprise Products Operating LLC (" EPO ") and
Enterprise GTM Holdings L.P., (" Enterprise GTM ," together
with EPO, the " Seller Parties "), and DEP Holdings, LLC,
DEP Operating Partnership, L.P., and DEP OLP GP, LLC, pursuant to
which the Seller Parties will contribute to the Partnership 100% of
the membership interests in Enterprise Holding III, L.L.C. in
exchange for (i) cash and (ii) the issuance of Class B
Units representing a new class of Partnership Securities to be
designated as "Class B Units," with such terms as are set
forth in this Amendment; and WHEREAS,
the General Partner has determined that the creation of the
Class B Units will be in the best interests of the Partnership
and fair to the Partnership’s unaffiliated Unitholders; and
WHEREAS, the issuance of the
Class B Units complies with the requirements of the
Partnership Agreement; and
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WHEREAS, the General Partner has
determined, pursuant to Section 13.1(j) of the Partnership
Agreement, that the amendments to the Partnership Agreement set
forth herein are necessary or appropriate in connection with the
authorization of the issuance of the Class B Units; and
NOW, THEREFORE, the General Partner
does hereby amend the Partnership Agreement as follows:
Section 1.
Amendments .
(a)
Section 1.1 and Attachment 1 . Section 1.1
and the definitions listed on Attachment I are hereby amended to
add, or to amend and restate, the following definitions:
"
Class B Conversion Effective Date " has the meaning
assigned to such term in Section 5.10(f).
"
Class B Unit " means a Partnership Security
representing a fractional part of the Partnership Interests of all
Limited Partners and Assignees, and having the rights and
obligations specified with respect to the Class B Units in
this Agreement. The term "Class B Unit" does not refer to a
Common Unit until such Class B Unit has converted into a
Common Unit pursuant to the terms hereof.
"
Limited Partner Interest " means the ownership interest of a
Limited Partner in the Partnership, which may be evidenced by
Common Units or Class B Units or other Partnership Securities
or a combination thereof or interest therein, and includes any and
all benefits to which such Limited Partner or Assignee is entitled
as provided in this Agreement, together with all obligations of
such Limited Partner or Assignee to comply with the terms and
provisions of this Agreement.
"
Outstanding " means, with respect to Partnership Securities,
all Partnership Securities that are issued by the Partnership and
reflected as outstanding on the Partnership’s books and
records as of the date of determination; provided ,
however , that with respect to Partnership Securities, if at
any time any Person or Group (other than the General Partner or its
Affiliates) beneficially owns 20% or more of any Outstanding
Partnership Securities of any class then Outstanding, all
Partnership Securities owned by such Person or Group shall not be
voted on any matter and shall not be considered to be Outstanding
when sending notices of a meeting of Limited Partners to vote on
any matter (unless otherwise required by law), calculating required
votes, determining the presence of a quorum or for other similar
purposes under this Agreement, except that Common Units so owned
shall be considered to be Outstanding for purposes of
Section 11.1(b)(iv) (such Common Units shall not,
however, be treated as a separate class of Partnership Securities
for purposes of this Agreement); provided, further , that
the limitation in the foregoing proviso shall not apply (i) to
any Person or Group who acquired 20% or more of any Outstanding
Partnership Securities of any class then Outstanding directly from
the General Partner or its Affiliates, (ii) to any Person or
Group who acquired 20% or more of any Outstanding Partnership
Securities of any class then Outstanding directly or indirectly
from a Person or Group described in clause (i) if the
General Partner shall have notified such Person or Group in
writing, prior to such acquisition, that such limitation shall not
apply to such Person
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or Group or (iii) to any Person or Group who acquired 20%
or more of any Partnership Securities issued by the Partnership
with the prior approval of the Board of Directors of the General
Partner; and provided , further , that none of the
Class B Units shall be deemed to be Outstanding for purposes
of determining if any Class B Units are entitled to
distributions of Available Cash unless such Class B Units
shall have been reflected on the books of the Partnership as
outstanding during such Quarter and on the Record Date for the
determination of any distribution of Available Cash.
"
Per Unit Capital Amount " means, as of any date of
determination, the Capital Account, stated on a per Unit basis,
underlying any Unit held by a Person other than the General Partner
or any Affiliate of the General Partner who holds Units.
(b)
Section 4.7(c) . Section 4.7(c) of the
Partnership Agreement is hereby amended and restated to read in its
entirety:
"(c)
The transfer of a Class B Unit that has converted into a
Common Unit shall be subject to the restrictions imposed by
Section 6.4."
(c)
Section 5.5(c). Section 5.5(c) of the
Partnership Agreement is hereby amended and restated as follows:
"(c)(i)
A transferee of a Partnership Interest shall succeed to a pro rata
portion of the Capital Account of the transferor relating to the
Partnership Interest so transferred.
(ii)
Subject to Section 6.4, immediately prior to the transfer of a
Class B Unit or of a Class B Unit that has converted into
a Common Unit pursuant to Section 5.10(f) by a holder thereof
(other than a transfer to an Affiliate unless the General Partner
elects to have this subparagraph 5.5(c)(ii) apply), the Capital
Account maintained for such Person with respect to its Class B
Units or converted Class B Units will (A) first , be
allocated to the Class B Units or converted Class B Units
to be transferred in an amount equal to the product of (x) the
number of such Class B Units or converted Class B Units
to be transferred and (y) the Per Unit Capital Amount for a Common
Unit, and (B) second , any remaining balance in such Capital
Account will be retained by the transferor, regardless of whether
it has retained any Class B Units or converted Class B
Units. Following any such allocation, the transferor’s
Capital Account, if any, maintained with respect to the retained
Class B Units or retained converted Class B Units, if
any, will have a balance equal to the amount allocated under clause
(B) hereinabove, and the transferee’s Capital Account
established with respect to the transferred Class B Units or
converted Class B Units will have a balance equal to the
amount allocated under clause (A) hereinabove."
(d)
Article V; Section 5.10 . Article V is
hereby amended to add a new Section 5.10 creating a new series
of Partnership Units as follows:
"Section 5.10
Establishment of Class B Units .
(a) General . The General
Partner hereby designates and creates a class of Units to be
designated as "Class B Units" and consisting of a total of
37,333,887 Class B Units, and fixes the designations,
preferences and relative,
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participating, optional or other special rights, powers and
duties of holders of the Class B Units as set forth in this
Section 5.10. (b) Rights of
Class B Units . During the period commencing upon issuance
of the Cl
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