EXHIBIT G-13
AGREEMENT OF LIMITED PARTNERSHIP
OF
TEXAS ▇▇▇▇▇, ▇▇
Effective as of December 21, 2001
AGREEMENT OF LIMITED PARTNERSHIP
This Agreement of Limited Partnership (this "Agreement") is made and
executed to be effective as of December 21, 2001, by Texas ▇▇▇▇▇ ▇▇, LLC, a
Texas limited liability company, as general partner (the "General Partner"), and
Texas ▇▇▇▇▇ ▇▇, LLC, a Delaware limited liability company, as limited partner (a
"Limited Partner;" the General Partner and any Limited Partners each being a
"Partner" and, collectively, the "Partners").
WHEREAS, the certificate of limited partnership of Texas ▇▇▇▇▇, ▇▇ (the
"Partnership") has been filed with the Secretary of State of the State of Texas;
and
WHEREAS, it is desired that the orderly management of the affairs of
the Partnership be provided for;
NOW, THEREFORE, it is agreed as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall have the following
meanings (unless otherwise expressly provided herein):
"Agreement" shall mean this Agreement as originally executed and as it
may be amended from time to time hereafter.
"Capital Contribution" shall mean any contribution to the capital of
the Partnership in cash or property by a Partner whenever made.
"Capital Percentage" shall have the meaning given such term in Section
5.1.
"Certificate of Limited Partnership" shall mean the Certificate of
Limited Partnership of the Partnership filed with and endorsed by the Secretary
of State of the State of Texas, as such certificate may be amended from time to
time hereafter.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or
corresponding provisions of subsequent superseding federal revenue laws.
"Entity" shall mean any foreign or domestic general partnership,
limited partnership, limited liability company, corporation, joint enterprise,
trust, business trust, employee benefit plan, cooperative or association.
"Fiscal Year" shall have the meaning given such term in Section 8.1.
"Genco Business" shall mean the electric generation business and
operations conducted with the Genco Assets (as such term is defined in the
Master Separation Agreement), subject to the Genco Liabilities (as such term is
defined in the Master Separation Agreement) contributed to and assumed by the
Partnership as provided in the Master Separation Agreement.
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"Indemnitee" shall have the meaning given such term in Section 6.1.
"Master Separation Agreement" shall mean the Master Separation
Agreement between Reliant Energy, Incorporated and Reliant Resources, Inc.,
effective as of December 31, 2000, as amended.
"Partner" shall mean each Person who executes a counterpart of this
Agreement as a Partner and each Person who may hereafter become a Partner
pursuant to Section 5.3 or Section 10.3, but shall not include any Partner that
ceases to be a Partner.
"Partnership" shall mean Texas ▇▇▇▇▇, ▇▇, a Texas limited partnership.
"Partnership Interest" shall mean, with respect to any Partner at any
time, the partnership interest of such Partner in the Partnership at such time,
including such Partner's Capital Percentage in the profits, losses, allocations
and distributions of the Partnership, and the right of such Partner to any and
all other benefits to which a Partner may be entitled as provided in the this
Agreement, together with the obligations of such Partner to comply with all the
terms and provisions of this Agreement.
"Partnership Representative" shall mean any Person who at any time
shall be, or shall have been, a general partner, limited partner, employee or
agent of the Partnership, or any Person who is or was serving at the request of
the Partnership as a partner, director, officer, venturer, proprietor, trustee,
employee or agent or similar functionary of an Entity (but excluding Persons
providing trustee, fiduciary or custodial services on a fee-for-services basis).
"Person" shall mean any individual or Entity, and any heir, executor,
administrator, legal representative, successor or assign of such "Person" where
the context so admits.
"Texas Act" shall mean the Texas Revised Limited Partnership Act, as
the same may be amended from time to time hereafter.
ARTICLE II
FORMATION OF THE PARTNERSHIP
2.1 Formation. On December 21, 2001, the Certificate of Limited
Partnership of the Partnership was filed with the Secretary of State of the
State of Texas pursuant to the Texas Act.
2.2 Name. The name of the Partnership is Texas ▇▇▇▇▇, ▇▇. If the
Partnership shall conduct business in any jurisdiction other than the State of
Texas, the General Partner shall register the Partnership or its trade name with
the appropriate authorities in such state in order to have the legal existence
of the Partnership recognized.
2.3 Place of Business. The initial principal place of business of the
Partnership shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The Partnership may
locate its places of business and registered office at any place or places as
the General Partner may from time to time deem advisable.
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2.4 Registered Office and Registered Agent. The Partnership's
registered office shall be at the office of its registered agent at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and the name of its initial registered
agent at such address shall be CT Corporation System.
2.5 Term. The Partnership and this Agreement shall continue until the
earliest of (a) such time as all of the Partnership's assets have been sold or
otherwise disposed of, or (b) such time as the Partnership's existence has been
terminated as otherwise provided herein or in the Texas Act.
2.6 Purpose of the Partnership. Subject to the further provisions
hereof, the object and purpose of the Partnership is to engage in any lawful
business activities in which a limited partnership formed under the Texas Act
may engage or participate, with its primary objectives being to engage in the
Genco Business; to manage, protect and conserve all assets of the Partnership;
to borrow money and issue evidences of indebtedness in furtherance of the
objects and purposes of the Partnership; to secure obligations of the
Partnership by mortgages, deeds of trusts, pledges or other liens and security
interests on Partnership property; to have and maintain one or more offices; and
to make such additional investments, engage in such additional business
endeavors and to do any and all acts and things that may be necessary,
incidental or convenient to carry on the Partnership's business as contemplated
by this Agreement. The Partnership shall have any and all powers necessary or
desirable to carry out the object and purpose of the Partnership to the extent
the same may be legally exercised by limited partnerships under the Texas Act.
ARTICLE III
GENERAL PARTNER
3.1 Name and Address. The name and place of business of the General
Partner are as follows:
Texas ▇▇▇▇▇ ▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
3.2 Standard of Performance. The General Partner shall act in good
faith in the performance of its obligations hereunder but shall have no
liability or obligation to any Limited Partner or the Partnership for any
decision made or action taken in connection herewith if made or taken in good
faith, irrespective of whether the same may be reasonably prudent or whether bad
judgment was exercised in connection therewith. In no event shall the General
Partner be or become obligated personally to respond to damages to any Limited
Partner pursuant to this Agreement, the liability of the General Partner being
limited to its interest in the Partnership. Any claim or judgment in favor of a
Limited Partner shall be limited accordingly.
3.3 Powers of General Partner. Except to the extent otherwise provided
herein, the General Partner shall have full power and authority to take all
action in connection with the Partnership's affairs and to exercise exclusive
management, supervision and control of the Partnership's properties and business
and shall have full power to do all things necessary or incident thereto.
Without limiting the foregoing, the General Partner, without the necessity of
any further approval of a Limited Partner, shall have the following powers
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(a) to control and manage the Partnership's assets and to arrange
for collections, disbursements and other matters necessary or desirable in
connection with the management of the Partnership's assets (such power to
include the power and authority to borrow money in furtherance of the
Partnership's purposes);
(b) to the extent that the Partnership's financial resources will
permit the General Partner to do so, to see that all indebtedness owing with
respect to and secured by the Partnership's assets, or any part thereof, is paid
and to make such other payments and perform such other acts as the General
Partner may deem necessary to preserve the interest of the Partnership therein;
(c) to pay and discharge all taxes and assessments levied and
assessed against the Partnership's assets or any part thereof for the account of
the Partnership;
(d) to carry such insurance as the General Partner may deem
necessary or appropriate;
(e) to have such other authority and power as may be reasonably
necessary or appropriate for the operation, maintenance and preservation of the
Partnership's assets;
(f) to determine the number of employees, if any, the selection of
such employees, the hours of labor and compensation for the service of such
employees;
(g) to amend this Agreement to reflect a change that is necessary
or desirable in connection with the issuance of any Partnership Interests
pursuant to Section 5.3; and
(h) to determine the time and amount of distributions to the
Partners, to make such distributions in accordance with Sections 7.2 and 7.3 and
the other provisions of this Agreement, and to establish reasonable reserves as
the General Partner may determine to be advisable.
3.4 Reimbursements and Fees. The General Partner shall be reimbursed by
the Partnership for all third-party expenses incurred in connection with the
discharge of its duties hereunder as General Partner, such as audit, accounting
and legal fees incurred by the General Partner in the accounting for and the
maintenance of the assets of the Partnership; provided that the General Partner
shall be required to pay such expenses only to the extent the Partnership
provides funds therefor.
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ARTICLE IV
LIMITED PARTNER
4.1 Name and Address. The name and place of business of the Limited
Partner are as follows:
Texas ▇▇▇▇▇ ▇▇, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4.2 No Control or Liability. Except as otherwise provided herein, (i)
no Limited Partner shall have any control over the management of the Partnership
or any power to transact any Partnership business or to bind or obligate the
Partnership, and (ii) no Limited Partner shall be personally liable for all or
any part of the debts or other obligations of the Partnership.
4.3 Rights and Powers. No Limited Partner shall have any right or power
to withdraw from the Partnership (or to receive any distribution under Section
6.04 of the Texas Act in the event of withdrawal) or to cause the liquidation of
the Partnership or the partition of its properties. Except as set forth in
Article VII and Article XI hereof, no Limited Partner shall have any right to
priority of distributions from the Partnership over any other Partner.
ARTICLE V
CAPITAL OF THE PARTNERSHIP
5.1 Initial Contributions. Contemporaneously with the execution of this
Agreement, the General Partner is making a Capital Contribution to the
Partnership in the amount set forth below in exchange for its general partner
Partnership Interest, and the Limited Partner is making a Capital Contribution
to the Partnership in the amount set forth below in exchange for its limited
partner Partnership Interest, the relative amounts of each such interest being
expressed as a "Capital Percentage:"
Capital Contribution Capital Percentage
-------------------- ------------------
General Partner
Texas ▇▇▇▇▇ ▇▇, LLC $10 1%
Limited Partner
Texas ▇▇▇▇▇ ▇▇, LLC $990 99%
5.2 Additional Contributions. No Partner shall be required to make
additional Capital Contributions unless, and except on such terms as, the
Partners unanimously agree; provided, however, that the contribution of assets
to and assumption of liabilities by the Partnership provided for in the Master
Separation Agreement shall be made at the time and in the manner
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provided for therein and shall not require any consent or authorization by any
Partner other than such consents or authorizations as may be required therein.
5.3 Additional Issuances of Partnership Interests.
(a) In the event of any additional Capital Contributions, and in
order to raise additional capital or to acquire assets, to redeem or retire
Partnership debt or for any other purpose, the Partnership authorized, at the
discretion of the General Partner, to issue additional Partnership Interests
from time to time to Partners or to other Persons. The General Partner may cause
the Partnership to assume liabilities in connection with any such issuance and
shall determine the consideration and terms and conditions with respect to any
such issuance; provided, however, that no Partnership Interests carrying any
rights or obligations other than the rights and obligations carried by the
initial Partnership Interests issued pursuant to this Agreement may be issued
without the approval of all of the Limited Partners. The General Partner shall
do all things necessary or advisable in connection with any such issuance,
including, without limitation, the making of appropriate adjustments to the
Partners' Capital Percentages and compliance with any statute, rule, regulation
or guideline of any federal, state or other governmental agency.
(b) Upon (i) the execution and delivery to the Partnership of this
Agreement, as it may be amended, by any Person who is issued any Partnership
Interest, (ii) receipt by the Partnership of any Capital Contribution required
of such Person made in connection with the issuance of such interest, (iii)
consent by all other Partners to such Person being admitted as a Partner and
(iv) any other action required by Texas law, such Person shall be admitted as a
Limited Partner of the Partnership.
5.4 Record of Contributions. The books and records of the Partnership
shall include true and full information regarding the amount of cash and cash
equivalents and designation and statement of the value of any other property
contributed by each Partner to the Partnership.
5.5 Interest. No interest shall be paid by the Partnership on Capital
Contributions.
5.6 Loans from Partners. Loans by a Partner to the Partnership shall
not be considered Capital Contributions.
5.7 Withdrawal or Reduction of Partners' Capital Contributions.
(a) A Partner shall not be entitled to withdraw any part of his
Capital Contribution or to receive any distribution from the Partnership, except
as otherwise provided in this Agreement.
(b) A Partner shall not receive out of the Partnership's property
or other assets any part of his Capital Contributions until all liabilities of
the Partnership, except liabilities to Partners on account of their Capital
Contributions, have been paid or there remains property or other assets of the
Partnership sufficient to pay all such liabilities.
(c) A Partner, irrespective of the nature of his Capital
Contribution, has only the right to demand and receive cash in return for his
Capital Contribution.
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5.8 Loans to Partnership. Nothing in this Agreement shall prevent any
Partner from making secured or unsecured loans to the Partnership by agreement
with the Partnership.
5.9 No Further Obligation. Except as expressly provided for in or
contemplated by this Article V, no Partner shall have any obligation to provide
funds to the Partnership, whether by Capital Contributions, loans, return of
monies received pursuant to the terms of this Agreement or otherwise.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification. Each Partnership Representative shall be entitled
to indemnification to the fullest extent permitted by the Texas Act and other
applicable provisions of Texas law or any successor statutory provisions, as
from time to time amended, from and against any judgments, penalties, including
excise and similar taxes, fines, settlements and reasonable expenses actually
incurred by the Partnership Representative in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, and any appeal in such an action,
suit or proceeding and any inquiry or investigation that could lead to such
action, suit or proceeding, with respect to which such Partnership
Representative was, is or is threatened to be made a named defendant or
respondent because of the Partnership Representative's status as such (each such
Partnership Representative being hereinafter referred to as an "Indemnitee").
Any repeal of this Section 6.1 shall be prospective only, and shall not
adversely affect any right of indemnification existing at the time of such
repeal or modification or thereafter arising as a result of acts or omissions
prior to the time of such repeal or modification. If any provision or provisions
of this Agreement relating to indemnification shall be held to be invalid,
illegal or unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby; and, to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable. Any indemnification
pursuant to this Article VI shall be made only out of the assets of the
Partnership, it being agreed that the General Partner shall not be personally
liable for such indemnification. In no event may an Indemnitee subject any
Limited Partner to personal liability by reason of the indemnification
provisions of this Agreement.
6.2 Advancement or Reimbursement of Expenses. An Indemnitee shall be
entitled to advance payment or reimbursement of reasonable expenses incurred by
the Indemnitee in its capacity as such after the Partnership has received a
written affirmation by the Indemnitee of the Indemnitee's good faith belief that
the Indemnitee has met the standard of conduct necessary for indemnification
under Article XI of the Texas Act, and a written undertaking (made in
conformance with the requirements of Article XI of the Texas Act) by or on
behalf of the Indemnitee to repay the amount paid or reimbursed if it is
ultimately determined that the Indemnitee did not meet that standard or it is
ultimately determined that indemnification of the Indemnitee against expenses
incurred by such Indemnitee in connection with that action, suit or proceeding
is prohibited by Section 11.05 of the Texas Act. In addition, the Partnership
shall pay or reimburse reasonable expenses incurred by a Partnership
Representative in connection with the Partnership Representative's appearance as
a witness or other participation in an action,
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suit or proceeding involving or affecting the Partnership at a time when such
Partnership Representative is not a named defendant or respondent in such
action, suit or proceeding. Any indemnification of or advancement of expenses to
a Partnership Representative who is a general partner of the Partnership in
accordance with Article XI of the Texas Act and this Article VI shall be
reported promptly to the Limited Partners, but in no event later than six months
after the date that the indemnification or advance occurs.
6.3 Nonexclusivity and Survival of Indemnification. The indemnification
and advancement of expenses provided by, or granted pursuant to, this Article VI
shall not be deemed exclusive of any other rights to which an Indemnitee may be
entitled under applicable law, this Agreement, any other agreement or otherwise,
both as to action in an official capacity and as to action in any other capacity
while an Indemnitee. The provisions of this Article VI shall not be deemed to
preclude the indemnification of any Person who is not specified in this Article
VI but whom the Partnership has the power or obligation to indemnify under the
provisions of the Texas Act or otherwise.
6.4 Insurance. To the fullest extent permitted by the Texas Act, the
Partnership may purchase and maintain insurance or another arrangement on behalf
of any Partnership Representative against any liability asserted against such
Partnership Representative and incurred by such Partnership Representative in
that capacity or arising out of the Partnership Representative's status in that
capacity, regardless of whether the Partnership would have the power to
indemnify such Partnership Representative against that liability under the
provisions of Article XI of the Texas Act or this Article VI.
ARTICLE VII
ALLOCATIONS AND DISTRIBUTIONS
7.1 Allocations. Except as may otherwise be unanimously agreed by the
Partners, all items of income, gain, loss, deduction, and credit of the
Partnership shall be allocated among the Partners in accordance with their
Capital Percentages.
7.2 Distributions. From time to time the General Partner shall, in its
sole discretion, determine 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, acquisitions, and a reasonable contingency
reserve, and if such an excess exists, cause the Partnership to distribute to
the Partners, in accordance with their Capital Percentages, an amount in cash
equal to that excess.
7.3 Limitation Upon Distributions. Notwithstanding anything herein to
the contrary, no distribution may be made to the Partners if such distribution
would violate the terms of Section 6.07 of the Texas Act.
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ARTICLE VIII
ACCOUNTING PERIOD, RECORDS AND REPORTS
8.1 Accounting Period. The Partnership's fiscal year shall be the
calendar year ending December 31 or such other period as the General Partner may
determine (the "Fiscal Year").
8.2 Records, Audits and Reports. At the expense of the Partnership, the
General Partner shall maintain records and accounts of all operations and
expenditures of the Partnership.
8.3 Inspection. The books and records of the Partnership shall be
maintained at the principal place of business of the Partnership and shall be
open to inspection by the Partners at all reasonable times during any business
day.
ARTICLE IX
TAX MATTERS
9.1 Tax Returns and Elections. The General Partner or its designees
shall cause the preparation and timely filing of all tax returns required to be
filed by the Partnership pursuant to the Code, if any, and all other tax returns
and other tax filings and elections that the General Partner or its designees
deem necessary. Copies of such returns, or pertinent information therefrom,
shall be furnished to the Partners as promptly as practicable after filing.
9.2 State, Local or Foreign Income Taxes. In the event state or foreign
income taxes are applicable, any references to federal income taxes or to
"income taxes" contained herein shall refer to federal, state, local and foreign
income taxes. References to the Code or Treasury regulations promulgated under
the Code shall be deemed to refer to corresponding provisions that may become
applicable under state, local or foreign income tax statutes and regulations.
9.3 Assignments and Issuance of Partnership Interests. The Partnership
shall allocate taxable items attributable to a Partnership Interest that is
assigned or issued in connection with a Capital Contribution by a new Partner
during a Fiscal Year between the assignor and the assignee of such Partnership
Interest or the existing Partners and the new Partners by closing the books of
the Partnership as of the end of the day prior to the day in which such
Partnership Interest is assigned or issued.
ARTICLE X
RESTRICTIONS ON TRANSFERABILITY;
ADMISSION OF SUBSTITUTE PARTNERS
10.1 Generally. All Partnership Interests at any time and from time to
time outstanding shall be held subject to the conditions and restrictions set
forth in this Article X, which conditions and restrictions shall apply equally
to the Partners and their respective transferees (except as otherwise expressly
stated), and each Partner by executing this Agreement agrees with the
Partnership and with each other Partner to such conditions and restrictions.
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Without limiting the generality of the foregoing, the Partnership shall require
as a condition to the transfer of record ownership of a Partnership Interest
that the transferee of such interest execute and deliver this Agreement as
evidence that such interest is held subject to the terms, conditions and
restrictions set forth herein.
10.2 Restriction on Transfer. No Partnership Interest shall be sold,
assigned, given, transferred, exchanged, devised, bequeathed, pledged or
otherwise disposed of to any Person except upon the unanimous approval of the
Partners and otherwise in accordance with the terms of this Agreement.
10.3 Substitute Partners. Any Person that acquires any Partnership
Interest that is not already a Partner shall not have the right to participate
in the management of the business and affairs of the Partnership, to vote such
Partnership Interest, or to become a Partner of the Partnership unless the
Partners of the Partnership unanimously consent to such Person becoming a
Partner of the Partnership. If such Person is not admitted as a Partner of the
Partnership, such Person only is entitled to receive the share of profits,
distributions, and allocations of income, gain, loss, deduction, credit, or
similar item to which the Person would be entitled if such Person were a Partner
of the Partnership.
ARTICLE XI
DISSOLUTION AND TERMINATION
11.1 Dissolution.
(a) The Partnership shall dissolve upon the occurrence of any of
the following events:
(i) the written consent of all Partners;
(ii) an event of withdrawal of the General Partner; or
(iii) as provided in Section 2.5 hereto.
(b) The personal representative (or other successor-in-interest)
of a deceased Partner shall, subject to the provisions of Article X, succeed to
the deceased Partner's interest in the Partnership. However, such personal
representative (or other successor in interest) shall not be entitled to be
admitted as a Partner unless the conditions specified in Article X are met.
11.2 Effect of Dissolution. Upon the occurrence of any of the events
specified in this Article XI effecting the dissolution of the Partnership, the
Partnership shall cease to carry on its business, except insofar as may be
necessary for the winding up of its business, but its separate existence shall
continue until a certificate of cancellation has been issued by the Secretary of
State of the State of Texas or until a decree dissolving the Partnership has
been entered by a court of competent jurisdiction.
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11.3 Winding Up, Liquidating and Distribution of Assets.
(a) Upon dissolution, an accounting shall be made of the accounts
of the Partnership and of the Partnership's assets, liabilities and operations,
from the date of the last previous accounting until the date of dissolution. The
General Partner shall immediately proceed to wind up the affairs of the
Partnership.
(b) If the Partnership is dissolved and its affairs are to be
wound up, the General Partner shall (1) sell or otherwise liquidate all of the
Partnership's assets as promptly as practicable (except to the extent the
General Partner may determine to distribute any assets in kind to the Partners),
(2) allocate any income or loss resulting from such sales to the Partners in
accordance with this Agreement, (3) discharge all liabilities to creditors in
the order of priority as provided by law, (4) discharge all liabilities of the
Partners (other than liabilities to Partners or for Capital Contributions to the
extent unpaid in breach of an obligation to do so), including all costs relating
to the dissolution, winding up and liquidation and distribution of assets, (5)
establish such reserves as the General Partner may determine to be reasonably
necessary to provide for contingent liabilities of the Partnership, (6)
discharge any liabilities of the Partnership to the Partners other than on
account of their interests in Partnership capital or profits and (7) distribute
the remaining assets to the Partners, either in cash or in kind, as determined
by the General Partner, pro rata according to the Capital Percentage of each. If
any assets of the Partnership are to be distributed in kind, the net fair market
value of such assets as of the date of dissolution shall be determined by
independent appraisal or by agreement of all of the Partners.
(c) Notwithstanding anything to the contrary in this Agreement,
upon a liquidation of the Partnership no Partner shall have any obligation to
make any contribution to the capital of the Partnership other than any Capital
Contributions such Partner agreed to make in accordance with this Agreement.
(d) Upon completion of the winding up, liquidation and
distribution of the assets, the Partnership shall be deemed terminated.
(e) The General Partner shall comply with any applicable
requirements of applicable law pertaining to the winding up of the affairs of
the Partnership and the final distribution of its assets.
11.4 Certificate of Cancellation. When all debts, liabilities and
obligations have been paid and discharged or adequate provisions have been made
therefor and all of the remaining property and assets have been distributed to
the Partners, a certificate of cancellation shall be executed in duplicate, and
verified by the person signing the certificate of cancellation and filed with
the Secretary of State of the State of Texas, which certificate shall set forth
the information required by the Texas Act.
11.5 Return of Contribution Non-recourse to Other Partners. Except as
provided by law, upon dissolution, each Partner shall look solely to the assets
of the Partnership for the return of the Partner's Capital Contribution. If the
Partnership property remaining after the payment or discharge of the debts and
liabilities of the Partnership is insufficient to return the cash or other
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property contribution of one or more Partners, such Partner or Partners shall
have no recourse against any other Partner.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Notices. Any notice, demand or communication required or permitted
to be given by any provision of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered personally to the
party or to an executive officer of the party to whom the same is directed or if
sent by registered or certified mail, postage and charges prepaid, addressed to
the Partner's and/or Partnership's address, as appropriate, which is set forth
in this Agreement. If mailed, any such notice shall be deemed to be delivered
two calendar days after being deposited in the United States mail with postage
thereon prepaid, addressed and sent as aforesaid.
12.2 Books of Account and Records. Proper and complete records and
books of account in which shall be entered fully and accurately all transactions
and other matters relating to the Partnership's business in such detail and
completeness as is customary and usual for businesses of the type engaged in by
the Partnership shall be kept or shall be caused to be kept by the Partnership.
Such books and records shall be maintained as provided in Section 8.3.
12.3 Application of Texas Law. This Agreement, and the application of
interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of Texas, and specifically the Texas Act.
12.4 Waiver of Action for Partition. Each Partner irrevocably waives,
during the term of the Partnership, any right that such Partner may have to
maintain any action for partition with respect to the property and assets of the
Partnership.
12.5 Execution of Additional Instruments. Each Partner hereby agrees to
execute such other and further statements of interest and holdings,
designations, powers of attorney and other instruments necessary to comply with
any laws, rules or regulations.
12.6 Gender and Number. Whenever required by the context, as used in
this Agreement, the singular number shall include the plural and the neuter
shall include the masculine or feminine gender, and vice versa.
12.7 Headings. The headings in this Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any provision hereof.
12.8 Waivers. No waiver of any right under this Agreement shall be
effective unless evidenced in writing and executed by the Person entitled to the
benefits thereof. The failure of any party to seek redress for violation of or
to insist upon the strict performance of any covenant or condition of this
Agreement shall not prevent another act or omission, which would have originally
constituted a violation, from having the effect of an original violation.
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12.9 Rights and Remedies Cumulative. The rights and remedies provided
by this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive the right to use any or all other rights or
remedies. Said rights and remedies are given in addition to any other rights the
parties may have by law, rule, regulation or otherwise.
12.10 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement and the application
thereof shall not be affected and shall be enforceable to the fullest extent
permitted by law.
12.11 Heirs, Successors and Assigns. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors and
assigns.
12.12 Creditors. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditor of the Partnership or any creditor
of any Partner of the Partnership.
12.13 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
12.14 Amendment. Except as otherwise expressly provided herein
(including, without limitation, Section 3.3(g)), this Agreement may not be
modified or amended without the written consent of all Partners.
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EXECUTED to be effective as of the date first above written.
GENERAL PARTNER:
TEXAS ▇▇▇▇▇ ▇▇, LLC
By:
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Name:
Title:
LIMITED PARTNER:
TEXAS ▇▇▇▇▇ ▇▇, LLC
By:
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Name:
Title:
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