EXHIBIT 3.13
AGREEMENT OF LIMITED PARTNERSHIP
OF
IMCO INDIANA PARTNERSHIP L.P.
BY AND BETWEEN
IMCO ENERGY CORP.
AND
IMCO RECYCLING OF INDIANA INC.
EFFECTIVE
MAY 1, 1996
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.01 Certain Definitions.................................................................. 1
1.02 Other Definitions.................................................................... 2
1.03 Construction......................................................................... 2
ARTICLE II
ORGANIZATION
2.01 Formation............................................................................ 2
2.02 Name................................................................................. 2
2.03 Registered Office; Registered Agent, Principal Office in the United States; Other
Offices............................................................................. 3
2.04 Purposes............................................................................. 3
2.05 Certificate.......................................................................... 3
2.06 Term................................................................................. 3
2.07 Merger or Consolidation.............................................................. 3
ARTICLE III
DISPOSITIONS OF INTERESTS
3.01 Initial Partners..................................................................... 3
3.02 Restrictions on the Disposition of an Interest....................................... 3
3.03 Additional Partners.................................................................. 4
3.04 Interests in a Partner............................................................... 4
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.01 Initial Contributions................................................................ 4
4.02 Subsequent Contributions............................................................. 4
4.03 Return of Contributions.............................................................. 4
4.04 Capital Accounts..................................................................... 4
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.01 Allocations.......................................................................... 5
5.02 Distributions........................................................................ 5
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ARTICLE VI
MANAGEMENT AND OPERATION
6.01 Management of Partnership Affairs.................................................... 5
6.02 Compensation......................................................................... 6
6.03 Standards and Conflicts.............................................................. 6
6.04 Indemnification...................................................................... 6
ARTICLE VII
RIGHTS OF OTHER PARTNERS
7.01 Information.......................................................................... 7
7.02 Withdrawal........................................................................... 7
7.03 Consents and Voting.................................................................. 7
7.04 Meetings............................................................................. 7
ARTICLE VIII
TAXES
8.01 Tax Returns.......................................................................... 8
8.02 Tax Elections........................................................................ 8
8.03 Tax Matters Partner.................................................................. 8
ARTICLE IX
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
9.01 Maintenance of Books................................................................. 8
9.02 Reports.............................................................................. 8
9.03 Accounts............................................................................. 9
ARTICLE X
DISSOLUTION, LIQUIDATION, AND TERMINATION
10.01 Dissolution.......................................................................... 9
10.02 Liquidation and Termination.......................................................... 9
10.03 Cancellation of Certificate.......................................................... 10
ARTICLE XI
GENERAL PROVISIONS
11.01 Offset............................................................................... 10
11.02 Notices.............................................................................. 10
11.03 Entire Agreement; Supersedure........................................................ 11
11.04 Effect of Waiver or Consent.......................................................... 11
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11.05 Amendment or Modification........................................................... 11
11.06 Binding Effect....................................................................... 11
11.07 Governing Law; Severability.......................................................... 11
11.08 Further Assurances................................................................... 11
11.09 Waiver of Certain Rights............................................................. 11
EXHIBIT A -- Names, Addresses, Initial Capital Contributions and Sharing
Ratios of Initial Partners
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AGREEMENT OF LIMITED PARTNERSHIP OF
IMCO INDIANA PARTNERSHIP L.P.
This AGREEMENT OF LIMITED PARTNERSHIP OF IMCO INDIANA PARTNERSHIP L.P. (this
"Agreement") is made and entered into as of May 1, 1996, by and among the
Partners (as defined below).
FOR AND IN CONSIDERATION OF the mutual covenants, rights, and obligations set
forth herein, the benefits to be derived therefrom, and other good and valuable
consideration, the receipt and the sufficiency of which each Partner
acknowledges and confesses, the Partners agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Definitions. As used herein, the following terms have the
following respective meanings:
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common
control with, the Person specified.
"Agreement" has the meaning given that term in the introductory
paragraph hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a
holiday on which banks in the State of Texas generally are closed.
"Capital Contribution" means any contribution by a Partner to the
capital of the Partnership.
"Certificate" means the certificate of limited partnership of the
Partnership, as it may be amended or restated from time to time.
"Code" means the Internal Revenue Code of 1986 and any successor
statute, as amended from time to time.
"Dispose", "Disposing" or "Disposition" means a sale, assignment,
transfer, exchange, mortgage, pledge, grant of a security interest, or
other disposition or encumbrance, or the acts thereof.
"General Partner" means any Person executing this agreement as of the
date hereof as a general partner or hereafter admitted to the
Partnership as a general partner as herein provided, but shall not
include any Person who has ceased to be a general partner in the
Partnership.
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"IMCO" means IMCO Energy Corp., a Delaware corporation.
"Initial Capital Contribution" means the Capital Contribution of a
Partner as specified on Exhibit A hereto.
"Limited Partner" means any Person executing this Agreement as of the
date hereof as a limited partner or hereafter admitted to the
Partnership as a limited partner as herein provided, but shall not
include any Person who has ceased to be a limited partner in the
Partnership.
"Partner" means any General Partner or Limited Partner.
"Partnership" has the meaning given that term in Section 2.01.
"Partnership Interest" means the interest of a Partner in the
Partnership, including, without limitation, rights to distributions
(liquidating or otherwise), allocations, information, and to consent or
approve.
"Person" means any individual, corporation, partnership, limited
partnership, limited liability company or other entity.
"Sharing Ratio" with respect to any Partner means a fraction (expressed
as a percentage), the numerator of which is the sum of such Partner's
Capital Contributions and the denominator of which is the sum of the
Capital Contributions of all Partners; provided, however, that the
Sharing Ratios of the General Partner shall equal at least 1% of the
Sharing Ratios of all Partners.
1.02 Other Definitions. Other terms defined herein have the meanings so
given them.
1.03 Construction. Whenever the context requires, the gender of all words
used in this Agreement shall include the masculine, feminine, and neuter. All
references to Articles and Sections refer to articles and sections of this
Agreement, and all references to Exhibits are to Exhibits attached hereto, each
of which is made a part hereof for all purposes.
ARTICLE II
ORGANIZATION
2.01 Formation. Effective May 1, 1996, the Persons executing this Agreement
as of the date hereof form a limited partnership (the "Partnership") for the
purposes hereinafter set forth.
2.02 Name. The name of the Partnership shall be "IMCO Indiana Partnership
L.P." and all Partnership business shall be conducted in such name or such other
name or names that comply with applicable law as the General Partner may select
from time to time.
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2.03 Registered Office; Registered Agent; Principal office in the United
States; Other Offices. The registered office of the Partnership in the State of
Indiana shall be at such place as the General Partner may designate from time to
time. The registered agent for service of process on the Partnership in the
State of Indiana or any other jurisdiction shall be such Person or Persons as
the General Partner may designate from time to time. The principal office of the
Partnership in the United States shall be at such place as the General Partner
may designate from time to time, which need not be in the State of Indiana, and
the Partnership shall maintain records there and shall keep the street address
of such principal office at the registered office of the Partnership in the
State of Indiana. The Partnership may have such other offices as the General
Partner may designate from time to time.
2.04 Purposes. The purposes of the Partnership are any lawful purposes for
which a limited partnership may be organized in the State of Indiana.
2.05 Certificate. The General Partner has executed and caused to be filed
with the Secretary of State of Indiana a Certificate containing information
required by the State of Indiana and such other information as the General
Partner may deem appropriate.
2.06 Term. The Partnership shall commence on the date hereof and shall
continue in existence until its business and affairs are wound up following
dissolution automatically at the close of Partnership business on December 31,
2024, or such earlier time as this Agreement may specify. The Partnership shall
conduct no business until the Certificate shall have been filed with the
Secretary of State of Indiana.
2.07 Merger or Consolidation. The Partnership may merge or consolidate with
or into another limited partnership or other business entity, or enter into an
agreement to do so, but only with the consent of the General Partner and the
Limited Partner.
ARTICLE III
DISPOSITIONS OF INTERESTS
3.01 Initial Partners. The initial General Partner and Limited Partner of
the Partnership are the Persons executing this Agreement as of the date hereof
as general partner and limited partner, respectively, each of which is hereby
admitted to the Partnership as a General Partner or a Limited Partner, as the
case may be, effective with the commencement of the Partnership.
3.02 Restrictions on the Disposition of an Interest.
(a) Except as specifically provided in this Section 3.02, no
Disposition of a Partnership Interest shall be effected without the
consent of the General Partner and the Limited Partner.
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(b) Any permitted transferee of all of the General Partner's
Partnership Interest as a General Partner automatically shall become
General Partner and promptly shall notify all other Partners of such
change, and any permitted transferee of a portion of the General
Partner's Partnership Interest may become General Partner on notice
from the existing General Partner to all other Partners.
3.03 Additional Partners. Additional Persons may be admitted to the
Partnership as General Partners or Limited Partners and Partnership Interests
may be created and issued to such Persons and to existing Partners at the
direction of the General Partner on such terms and conditions as the General
Partner may determine at the time of such admission. Such admission or issuance
shall specify the Sharing Ratios applicable thereto and may provide for the
creation of different classes or groups of Limited Partners or General Partners
and having different rights, powers, and duties.
3.04 Interests in a Partner. No Partner shall cause or permit an interest,
direct or indirect, in itself to be Disposed of such that, on account of such
Disposition, the Partnership would be considered to have terminated within the
meaning of section 708 of the Code.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.01 Initial Contributions. Contemporaneously with the commencement of the
Partnership, each Partner shall make the Initial Capital Contributions described
for such Partner in Exhibit A.
4.02 Subsequent Contributions. Without creating any rights, remedies, or
claims in favor of or enforceable by any third party, each Partner shall
contribute to the Partnership, in cash or property, on or before the date
specified as hereinafter described, such Partner's Sharing Ratio of all monies
or properties that in the judgment of the General Partner are necessary to
enable the Partnership to cause the assets of the Partnership to be properly
operated and maintained and to discharge its costs, expenses, obligations, and
liabilities.
4.03 Return of Contributions. No Partner shall be entitled to the return of
any part of its Capital Contributions or to be paid interest in respect of
either its capital account or any Capital Contribution made by it. No unrepaid
Capital Contribution shall be deemed or considered to be a liability of the
Partnership or of any Partner. No Partner shall be required to contribute or to
lend any cash or property to the Partnership to enable the Partnership to return
any Partner's Capital Contributions.
4.04 Capital Accounts. A capital account shall be established and maintained
for each Partner.
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ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.01 Allocations. Subject to the provisions of Section 10.02 hereof, all
items of income, gain, loss, deduction, and credit of the Partnership shall be
allocated among the Partners in accordance with their Sharing Ratios.
5.02 Distributions.
(a) From time to time the General Partner shall determine in its
reasonable judgment to what extent (if any) the Partnership's cash on
hand exceeds its current and anticipated needs, including, without
limitation, for operating expenses, debt service, and a reasonable
contingency reserve. If such an excess shall exist, the General Partner
may in its sole discretion (but shall not be required to) cause the
Partnership to distribute to the Partners, in accordance with their
Sharing Ratios, an amount in cash not more than such excess.
(b) From time to time the General Partner also may cause property
of the Partnership (including securities and other investments held by
the Partnership) other than cash to be distributed to the Partners,
which distribution shall be made in accordance with their Sharing
Ratios and may be made subject to existing liabilities and obligations.
ARTICLE VI
MANAGEMENT AND OPERATION
6.01 Management of Partnership Affairs.
(a) Except for situations in which the approval of other Partners
is expressly required by this Agreement or by non-waivable provisions
of applicable law, the General Partner shall have full, complete, and
exclusive authority to manage and control the business, affairs, and
properties of the Partnership, to make all decisions regarding the
same, and to perform any and all other acts or activities customary or
incident to the management of the Partnership's business.
(b) Notwithstanding the provisions of Section 6.01 (a), without
the written consent of the Limited Partner, the General Partner shall
not cause the Partnership to sell all or substantially all of the
Partnership's assets.
(c) No Partner other than the General Partner shall have the
authority or power in its capacity as such to act for or on behalf of
the Partnership or any other Partner, to do any act that would be
binding on the Partnership or any other Partner, or to incur any
expenditures on behalf of or with respect to the Partnership.
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(d) Any Person dealing with the Partnership, other than a Partner,
shall be entitled to rely on the authority of the General Partner in
taking any action in the name of the Partnership without inquiry into
the provisions of this Agreement or compliance therewith, regardless of
whether such action actually is taken in accordance with the provisions
hereof.
6.02 Compensation. The General Partner shall receive no compensation for its
services as such.
6.03 Standards and Conflicts.
(a) The General Partner shall conduct the affairs of the
Partnership in good faith toward the best interests of the Partnership.
The General Partner, however, shall not be liable for errors or
omissions in performing its duties hereunder, absent bad faith, gross
negligence, or breach of the provisions of this Agreement. The General
Partner shall devote such time and effort to the Partnership business
and operations as shall be necessary to promote fully the interests of
the Partnership; however, neither the General Partner nor any other
General Partner shall be required to devote full time to Partnership
business.
(b) Notwithstanding any other provision hereof, the General
Partner and each other General Partner at any time and from time to
time may engage in and possess interests in any businesses or other
ventures of any and every type and description, independently or with
others, including ones in competition with the Partnership, with no
obligation to offer to the Partnership or any other Partner the right
to participate therein.
(c) The Partnership may transact business with any Partner or
Affiliate thereof on such terms and conditions as are determined in the
sole discretion of the General Partner.
6.04 Indemnification. To the fullest extent permitted by law, the
Partnership shall indemnify each General Partner, its Affiliates, and their
respective officers, directors, partners, employees, and agents and hold them
harmless from and against all losses, costs, liabilities, damages, and expenses
(including, without limitation, costs of suit and attorney's fees) any of them
may incur in performing the obligations of such General Partner hereunder,
SPECIFICALLY INCLUDING SUCH PERSON'S SOLE, PARTIAL, OR CONCURRENT NEGLIGENCE,
and the Partnership shall advance expenses associated with defense of any action
related thereto; provided, however, that such indemnity shall not apply to
actions constituting bad faith, gross negligence, or breach of the provisions of
this Agreement.
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ARTICLE VII
RIGHTS OF OTHER PARTNERS
7.01 Information. In addition to the other rights specifically set forth
herein, each Partner shall have access to all information to which such Partner
is entitled to have access. The Partners agree, however, that the General
Partner from time to time may determine, due to contractual obligations,
business concerns, or other considerations, that certain information regarding
the business, affairs, properties, and financial condition of the Partnership
should be kept confidential and not provided to some or all other Partners, and
that it shall not be just or reasonable for any such other Partner or assignee
or representative thereof to examine or copy such information.
7.02 Withdrawal. No Limited Partner shall have the right or power to
withdraw from the Partnership as a limited partner.
7.03 Consents and Voting.
(a) Subject to the provisions of Section 6.03(a) with respect to
the General Partner in its capacity as such, a Partner (including the
General Partner with respect to any Partnership Interest it may have as
a Limited Partner) may grant or withhold its consent or vote its
interest in its sole discretion, without regard to, or inquiry on
account of, the interests of the Partnership or any other Partner.
(b) In any request for consent or approval from other Partners,
the General Partner may specify a response period, ending no earlier
than the first and no later than the 15th Business Day following the
date on which such Partner receives such request as described in
Section 11.02. The failure of such Partner to respond by the end of
such period shall be deemed conclusively for all purposes to be consent
or approval by such Partner of the action set forth in such request.
7.04 Meetings. The General Partner may call a meeting of the Partners to
transact such business as the Partners or any group thereof may conduct as
provided herein. Such call shall be made by notice to all other Partners on or
before the tenth day prior to the date of the meeting specifying the location
and the time and stating the business to be transacted at such meeting, which
shall include any items the Partners requesting such meeting shall have
specified in their request. The chairperson of the meeting shall be such
individual as the General Partner shall specify. At such meeting, the Partners
may take any action included in the notice of the meeting by vote of Partners
present, in person or by proxy, constituting Partners whose consent is required
for such action pursuant to the other provisions hereof.
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ARTICLE VIII
TAXES
8.01 Tax Returns. The General Partner shall cause to be prepared and filed
all necessary federal and state income tax returns for the Partnership,
including making the elections described in Section 8.02. Each Partner shall
furnish to the General Partner all pertinent information in its possession
relating to Partnership operations that is necessary to enable such income tax
returns to be prepared and filed.
8.02 Tax Elections. The following elections shall be made on the appropriate
returns of the Partnership:
(a) to adopt as the Partnership's fiscal year any year determined
the General Partner;
(b) if there shall be a distribution of Partnership property as
described in section 734 of the Code or if there shall be a transfer of
a Partnership interest as described in section 743 of the Code, on
written request of any Partner and approval by the General Partner, to
elect, pursuant to section 754 of the Code, to adjust the basis of
Partnership properties;
(c) any other election the General Partner may deem appropriate
and in the best interests of the Partners.
No election shall be made by the Partnership or any Partner to be excluded from
the application of the provisions of subchapter K of chapter 1 of subtitle A of
the Code or any similar provisions of applicable state law.
8.03 Tax Matters Partner. The General Partner shall be the "tax matters
partner" of the Partnership pursuant to section 6231(a)(7) of the Code.
ARTICLE IX
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
9.01 Maintenance of Books. The books of account for the Partnership shall be
maintained by the General Partner in accordance with the terms of this
Agreement. The capital accounts of the Partners shall be maintained in
accordance with Section 4.04. The accounting year of the Partnership shall be
determined by the General Partner.
9.02 Reports. The General Partner may cause to be prepared or delivered such
reports as it may deem appropriate. The costs of all such reports shall be borne
by the Partnership.
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9.03 Accounts. The General Partner shall establish and maintain one or more
separate bank, securities and investment accounts and arrangements (including if
deemed necessary or advisable by the General Partner, margin accounts and
arrangements) for Partnership funds and investments with such financial
institutions, securities firms, and other firms as the General Partner may
determine.
ARTICLE X
DISSOLUTION, LIQUIDATION, AND TERMINATION
10.01 Dissolution. The Partnership shall be dissolved and its affairs shall
be wound up upon the first to occur of any of the following:
(a) the written consent of the General Partner and the Limited
Partner;
(b) the date set forth in Section 2.06;
10.02 Liquidation and Termination. On dissolution of the Partnership, the
General Partner shall act as liquidator or may appoint one or more other Persons
as liquidator. The liquidator shall proceed diligently to wind up the affairs of
the Partnership and make final distributions as provided herein. The costs of
liquidation shall be borne as a Partnership expense. Until final distribution,
the liquidator shall continue to operate the Partnership properties with all of
the power and authority of the General Partner. The steps to be accomplished by
the liquidator are as follows:
(a) as promptly as possible after dissolution and again after
final liquidation, the liquidator shall cause a proper accounting to be
made of the Partnership's assets, liabilities, and operations through
the last day of the calendar month in which the dissolution shall occur
or the final liquidation shall be completed, as applicable;
(b) the liquidator shall pay all of the debts and liabilities of
the Partnership (including, without limitation, all expenses incurred
in liquidation) or otherwise make adequate provision therefor
(including, without limitation, the establishment of a cash escrow fund
for contingent liabilities in such amount and for such term as the
liquidator may reasonably determine); and
(c) all remaining assets of the Partnership shall be distributed
to the Partners as follows:
(i) the liquidator may sell any or all Partnership
property, and any resulting gain or loss from each sale shall
be computed and allocated to the capital accounts of the
Partners;
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(ii) with respect to all Partnership property that has not
been sold, the fair market value of such property shall be
determined and the capital accounts of the Partners shall be
adjusted to reflect the manner in which the unrealized income,
gain, loss, and deduction inherent in such property (that has
not been reflected in the capital accounts previously) would
be allocated among the Partners if there were a taxable
disposition of such property for the fair market value of such
property on the date of their distribution; and
(iii) Partnership property shall be distributed among the
Partners in accordance with the positive capital account
balances of the Partners, as determined after taking into
account all capital account adjustments for the taxable year
of the Partnership during which the liquidation of the
Partnership occurs (other than those made by reason of this
clause (iii); and such distributions shall be made by the end
of the taxable year of the Partnership during which the
liquidation of the Partnership occurs (or, if later, on or
before the 90th day after the date of such liquidation).
All distributions in kind to the Partners shall be made subject to the liability
of each distributes for costs, expenses, and liabilities theretofore incurred or
for which the Partnership shall have committed prior to the date of termination
and such costs, expenses, and liabilities shall be allocated to such distributes
pursuant to this Section 10.02. The distribution of cash and/or property to a
Partner in accordance with the provisions of this Section 10.02 shall constitute
a complete return to the Partner of its Capital Contributions and a complete
distribution to the Partner of its Partnership Interest and all the
Partnership's property and shall constitute a compromise to which all Partners
have consented. To the extent that a Partner shall return funds to the
Partnership, it shall have no claim against any other Partner for such funds.
10.03 Cancellation of Certificate. On completion of the distribution of
Partnership assets as provided herein, the Partnership shall be terminated, and
the General Partner shall cause the cancellation of the Certificate and any
other filings made pursuant to Section 2.05 hereof and shall take such other
actions as may be necessary to terminate the Partnership.
ARTICLE XI
GENERAL PROVISIONS
11.01 Offset. Whenever the Partnership is to pay any sum to any Partner, the
Partnership shall have the right to offset and deduct any amounts such Partner
owes the Partnership from that sum before payment to such Partner.
11.02 Notices. All notices, requests, or consents provided for or permitted
to be given pursuant to this Agreement must be in writing and must be given by
depositing same in the United States mail, addressed to the recipient, postpaid,
and registered or certified with return receipt requested or by delivering such
notice to the recipient in person, by courier, or by facsimile transmission.
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11.03 Entire Agreement; Supersedure. This Agreement constitutes the entire
agreement of the Partners and their Affiliates relating to the matters contained
herein and supersedes all prior contracts or agreements, whether oral or
written.
11.04 Effect of Waiver or Consent. No waiver or consent, express or implied,
by any Person to or of any breach or default by any Person in the performance by
such Person of its obligations hereunder shall be construed to be a consent to
or waiver of any other breach or default in the performance by such Person of
the same or any other obligations of such Person hereunder. Failure on the part
of a Person to complain of any act of any Person or to declare any Person in
default, irrespective of how long such failure continues, shall not constitute a
waiver by such Person of its rights hereunder until the applicable statute of
limitation period has run.
11.05 Amendment or Modification. This Agreement may be amended or modified
from time to time only by a written instrument executed by the General Partner
and the Limited Partner.
11.06 Binding Effect. Subject to the restrictions on Dispositions set forth
herein, this Agreement shall be binding upon and shall inure to the benefit of
the Partners and their respective heirs, legal representatives, successors, and
assigns.
11.07 Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
11.08 Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, each Partner shall execute and deliver such
additional documents and instruments and perform such additional acts as may be
necessary or appropriate to effectuate, carry out, and perform the terms,
provisions, and conditions of this Agreement and such transactions.
11.09 Waiver of Certain Rights. Each Partner irrevocably waives any right it
might have to maintain any action for dissolution of the Partnership or to
maintain any action for partition of the property of the Partnership.
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IN WITNESS WHEREOF, the initial Partners have executed this Agreement as of the
date first set forth above.
IMCO ENERGY CORP.
General Partner
by:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
IMCO RECYCLING OF INDIANA INC.
Limited Partner
by:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Secretary
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