EXHIBIT 3.19
AGREEMENT OF LIMITED PARTNERSHIP
OF
IMCO MANAGEMENT PARTNERSHIP L.P.
.
.
.
AGREEMENT OF LIMITED PARTNERSHIP
OF
IMCO MANAGEMENT PARTNERSHIP L.P.
ARTICLE I
DEFINITIONS
1.01 Certain Definitions....................................... 1
1.02 Other Definitions......................................... 3
1.03 Construction.............................................. 3
ARTICLE II
ORGANIZATION
2.01 Formation................................................. 3
2.02 Name...................................................... 3
2.03 Registered Office; Registered Agent; Principal Office
in the United States; Other Offices..................... 3
2.04 Purposes.................................................. 4
2.05 Certificate; Foreign Qualification........................ 5
2.06 Term...................................................... 5
2.07 Merger or Consolidation................................... 5
ARTICLE III
DISPOSITIONS OF INTERESTS
3.01 Initial Partners.......................................... 5
3.02 Restrictions on the Disposition of an Interest............ 5
3.03 Additional Partners....................................... 7
3.04 Interests in a Partner.................................... 7
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.01 Initial Contributions..................................... 8
4.02 Subsequent Contributions.................................. 8
4.03 Return of Contributions................................... 8
4.04 Advances and Loans by or to Partners and their Affiliates. 8
4.05 Capital Accounts.......................................... 9
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.01 Allocations............................................... 10
5.02 Distributions............................................. 10
(i)
ARTICLE VI
MANAGEMENT AND OPERATION
6.01 Management of Partnership Affairs......................... 10
6.02 Compensation.............................................. 12
6.03 Standards and Conflicts................................... 12
6.04 Indemnification........................................... 13
ARTICLE VII
RIGHTS OF OTHER PARTNERS
7.01 Information............................................... 13
7.02 Withdrawal................................................ 13
7.03 Consents and Voting....................................... 13
7.04 Meetings.................................................. 14
ARTICLE VIII
TAXES
8.01 Tax Returns............................................... 14
8.02 Tax Elections............................................. 14
8.03 Tax Matters Partner....................................... 15
ARTICLE IX
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
9.01 Maintenance of Books...................................... 15
9.02 Reports................................................... 15
9.03 Accounts.................................................. 15
ARTICLE X
WITHDRAWAL, BANKRUPTCY, REMOVAL, ETC.
10.01 Withdrawal, Bankruptcy, Etc. of Managing General Partner.. 15
10.02 Removal of Managing General Partner....................... 16
10.03 Conversion of Interest.................................... 17
10.04 Bankrupt Partners......................................... 17
ARTICLE XI
DISSOLUTION, LIQUIDATION, AND TERMINATION
11.01 Dissolution.............................................. 18
11.02 Liquidation and Termination.............................. 18
11.03 Cancellation of Certificate.............................. 20
(ii)
ARTICLE XII
GENERAL PROVISIONS
12.01 Offset.................................................... 20
12.02 Notices................................................... 20
12.03 Entire Agreement; Supersedure............................. 20
12.04 Effect of Waiver or Consent............................... 21
12.05 Amendment or Modification................................. 21
12.06 Binding Effect............................................ 21
12.07 Governing Law; Severability............................... 21
12.08 Further Assurances........................................ 21
12.09 Waiver of Certain Rights.................................. 21
12.10 Counterparts.............................................. 22
EXHIBIT A - Names, Addresses, Initial Capital Contributions and Sharing Ratios
of Initial Partners
EXHIBIT B - Form of Promissory Note
(iii)
AGREEMENT OF LIMITED PARTNERSHIP
OF
IMCO MANAGEMENT PARTNERSHIP L.P.
This AGREEMENT OF LIMITED PARTNERSHIP OF IMCO MANAGEMENT PARTNERSHIP
L.P. (this "Agreement") is made and entered into as of December 2,_____________,
1991, 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:
"Act" means Article 6l32a-l of the Texas Revised Civil
Statutes and any successor statute, as amended from time to time.
"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.
"Bankrupt Partner" means any Partner (whether a General
Partner or a Limited Partner) with respect to which an event of the
type described in section 4.02(a)(4) or (5) of the Act shall have
occurred, subject to the lapsing of any period of time therein
specified.
"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 Interest Rate" means a rate per annum equal to the
lesser of (a) a varying rate per annum that is equal to the interest
rate publicly quoted by NCNB Texas National Bank from time to time as
its prime commercial or similar reference interest rate, with
adjustments in such varying rate to be made on the same date as any
change in such rate, and (b) the maximum rate permitted by applicable
law.
"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.
"IMCO" means IMCO Recycling Inc., 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.
"Management Agreement" means that certain Management Services
Agreement to be executed this even date by and between IMCO and the
Partnership.
"Managing General Partner" means IMCO or any other General
Partner designated as Managing General Partner pursuant to the
provisions hereof.
"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.
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"Person" has the meaning given that term in section 1.01 of
the Act.
"Required Interest" means one or more Limited Partners having
among them 100% of the Sharing Ratios of all Limited Partners in their
capacities as such.
"Sharing Ratio" with respect to any Partner means a fraction
(expressed as a percentage), the numerator of which is the sum of such
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 Partners collectively
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 with the first proper filing of the
Certificate as described in Section 2.05, the Persons executing this Agreement
as of the date hereof form a limited partnership (the "Partnership") for the
purposes hereinafter set forth under and pursuant to the Act.
2.02 Name. The name of the Partnership shall be "IMCO Management
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 Managing
General Partner may select from time to time.
2.03 Registered Office; Registered Agent; Principal Office in the
United States; Other Offices. The registered office of the Partnership in the
State of Texas shall be at such place as the Managing General Partner may
designate from time to time. The registered agent for service of process on the
Partnership in the State of Texas or any other jurisdiction shall be such Person
or Persons as the Managing 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 Managing General Partner may designate
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from time to time, which need not be in the State of Texas, and the Partnership
shall maintain records there as required by section 1.07 of the Act and shall
keep the street address of such principal office at the registered office of the
Partnership in the State of Texas. The Partnership may have such other offices
as the Managing General Partner may designate from time to time.
2.04 Purposes. The purposes of the Partnership are:
(a) To provide to IMCO the management, administrative and
financial services that IMCO desires the Partnership to perform, all in
accordance with and pursuant to the Management Contract.
(b) To purchase, acquire, hold, sell, write, endorse,
guarantee, exchange and invest, reinvest, deal and trade in (on margin or
otherwise), within and without the United States, any and all forms of
securities and investments, including without limitation, capital stock, common
stock, preferred stock, convertible securities, reorganization certificates,
subscriptions, scrip, warrants, rights, options, puts, calls, bonds, debentures,
notes, certificates of deposit, commercial paper, letters of credit, mortgages,
evidences of indebtedness, certificates of indebtedness, bankers acceptances,
trust receipts and other securities of any corporation or other entity, whether
readily marketable or not, rights and options, whether granted or written by the
Partnership or by others, treasury bills, bonds and notes, futures contracts and
options relating thereto and financial futures and futures contracts relating to
stock indices and options thereon and other related contracts, any securities or
obligations issued or guaranteed by the United States or any state or possession
of the United States or any political subdivision or agency of any of the
foregoing, and any securities or obligations issued or guaranteed by any country
other than the United States, including futures contracts and options related to
the currencies thereof.
(c) To provide funding in the form of loans, advances or
equity infusions to corporations, partnerships and joint ventures, including
those in which IMCO or any of its Affiliates may be interested.
(d) To hold, receive, mortgage, pledge, lease, transfer,
exchange, otherwise dispose of, grant options with respect to and otherwise deal
in and exercise all rights, powers, privileges and other incidents of ownership
or possession with respect to all property held or owned by the Partnership.
(e) To enter into, make and perform all contracts and other
undertakings, and engage in all activities and transactions, as may be
necessary, advisable, suitable or proper for the conduct of its business and for
the carrying out of the purposes enumerated above.
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(f) To engage in any other business or activity that now or
hereafter may be necessary, incidental, proper, advisable, or convenient to
accomplish the foregoing purposes (including, without limitation, obtaining
financing therefor) and that is not forbidden by the law of the jurisdiction in
which the Partnership engages in such business.
2.05 Certificate; Foreign Qualification. Promptly following the
execution hereof, the General Partner shall execute and cause to be filed with
the Secretary of State of Texas a Certificate containing information required by
the Act and such other information as the Managing General Partner may deem
appropriate. Prior to conducting business in any jurisdiction other than Texas,
the Managing General Partner shall cause the Partnership to comply, to the
extent such matters are reasonably within the control of the Managing General
Partner, with all requirements necessary to qualify the Partnership as a foreign
limited partnership (or a partnership in which the Limited Partners have limited
liability) in such jurisdiction.
2.06 Term. The Partnership shall commence on the date the Certificate
first is properly filed with the Secretary of State of Texas 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, 2020, 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 Texas.
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 Managing General Partner
and a Required Interest.
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 Managing
General Partner and a Required Interest. Any attempted Disposition by a Person
of a Partnership Interest, or
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any part thereof, other than in accordance with this Section 3.02 shall be null
and void ab initio.
(b) Subject to the provisions of Section 3.02(d) and (e), any
Partner may pledge, assign for security purposes, or otherwise grant a security
interest in (and the pledgee, assignee, or secured party may foreclose on) all
or part of such Partner's interest in distributions from the Partnership.
(c) Any permitted transferee of all of the Managing General
Partner's Partnership Interest as a General Partner automatically shall become
Managing General Partner and promptly shall notify all other Partners of such
change, and any permitted transferee of a portion of the Managing General
Partner's Partnership Interest may become Managing General Partner on notice
from the existing Managing General Partner to all other Partners.
(d) The Partnership shall not recognize for any purpose any
purported Disposition of all or part of a Partnership Interest unless and until
the other applicable provisions of this Section 3.02 shall have been satisfied
and there shall have been delivered to the Managing General Partner a document
(i) executed by both the Partner effecting such Disposition (or, if such
transfer is on account of the death, incapacity, dissolution or liquidation of
the transferor, its representative) and the Person to which such Partnership
Interest or part thereof is Disposed, (ii) including the notice address of and
the written acceptance by any Person to be admitted to the Partnership of all
the terms and provisions of this Agreement and an agreement by such Person to
perform and discharge timely all of the obligations and liabilities in respect
of the Partnership Interest or part thereof being obtained, (iii) setting forth
the Sharing Ratios of the Partner effecting such Disposition and the Person to
which such interest is Disposed after such Disposition (which together shall
total the Sharing Ratio of the Partner effecting such Disposition prior
thereto), and (iv) containing a representation and warranty that such
Disposition was made in accordance with all applicable laws and regulations
(including securities laws). Each such Disposition and, if applicable, admission
shall be effective as of the first day of the calendar month immediately
succeeding the month in which the Managing General Partner shall receive such
notification of Disposition and the other requirements of this Section 3.02
shall have been met; provided, however, that if there shall be only one General
Partner and as a result of such Disposition such General Partner would cease to
be a General Partner, such transferee shall be deemed admitted as a General
Partner immediately prior to such cessation.
(e) The right of any Partner to Dispose of a Partnership
Interest or any part thereof or of any Person to be admitted to the
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Partnership In connection therewith shall not exist or be exercised unless (i)
either (A) the Partnership Interest or portion thereof subject to such
Disposition or admission shall have been registered under the Securities Act of
1933, as amended, and any applicable state securities laws or (B) the
Partnership shall have received a favorable opinion of the Partnership's legal
counsel or of other legal counsel acceptable to the Managing General Partner to
the effect that such Disposition or admission is exempt from registration under
such laws and (ii) the Partnership shall have received a favorable opinion of
the Partnership's legal counsel or of other legal counsel acceptable to the
Managing General Partner to the effect that such Disposition or admission, when
added to the total of all other sales, assignments, or other Dispositions within
the preceding 12 months, would not result in the Partnership's being considered
to have terminated within the meaning of section 708 of the Code; provided,
however, that the Managing General Partner may waive the requirements of this
Section 3.02(e).
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 Managing General Partner on such terms and conditions as the
Managing 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. The
creation of any new class or group shall be reflected in an amendment hereto
indicating such different rights, powers, and duties, and such amendment need be
executed only by the Managing General Partner. Any such admission must comply
with the provisions of Section 3.02(d)(i) and (ii) and shall not be effective
until such new Partner shall have executed and delivered to the Managing General
Partner a document including such new Partner's notice address, acceptance of
all the terms and provisions of this Agreement, and an agreement to perform and
discharge timely all of its obligations and liabilities hereunder.
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.
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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 Managing 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. The Managing General Partner shall notify each Partner of the need
for Capital Contributions pursuant to this Section 4.02, which notice shall
include a statement in reasonable detail of the proposed uses of such Capital
Contributions and a date (which date shall be no earlier than the fifth Business
Day following each Partner's receipt of such notice) before which such Capital
Contributions shall be made. All such notices for Capital Contributions shall be
made to all Partners in accordance with their Sharing Ratios.
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 Advances and Loans by or to Partners and their Affiliates. (a) At
any time the Partnership shall not have sufficient cash to pay its obligations,
the Managing General Partner, or such other Partner(s) as may agree with the
Managing General Partner's consent, may advance all or part of such funds to or
on behalf of the Partnership. Each such advance shall constitute a loan from the
Partner to the Partnership and shall bear interest from the date of the advance
until the date of repayment at the General Interest Rate. Any payment by a
General Partner on account of liability as a matter of law for Partnership
obligations shall be deemed to be an advance under this Section 4.04. Advances
described in this Section 4.04 shall not be considered to be Capital
Contributions.
(b) Loans to Partners and Affiliates. The Partnership may at any time
make a loan, advance, capital contribution or extension of
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credit to any Partner or any of such Partner's Affiliates. All loans, advances
and extensions of credit made pursuant to this Section 4.04(b) shall be
evidenced by a promissory note substantially in the form of the promissory note
attached to this Agreement as Exhibit B.
4.05 Capital Accounts. A capital account shall be established and
maintained for each Partner. Each Partner's capital account (a) shall be
increased by (i) the amount of money contributed by that Partner to the
Partnership, (ii) the fair market value of property contributed by that Partner
to the Partnership (net of liabilities secured by such contributed property that
the Partnership is considered to assume or take subject to under section 752 of
the Code), and (iii) allocations to that Partner of Partnership income and gain
(or items thereof), including income and gain exempt from tax and income and
gain described in Treas. Reg. Section 1.704-1(b)(2)(iv)(g), but excluding income
and gain described in Treas. Reg. Section 1.704-1(b)(4)(i), and (b) shall be
decreased by (i) the amount of money distributed to that Partner by the
Partnership, (ii) the fair market value of property distributed to that Partner
by the Partnership (net of liabilities secured by such distributed property that
such Partner is considered to assume or take subject to under section 752 of the
Code), (iii) allocations to that Partner of expenditures of the Partnership
described in section 705(a)(2)(B) of the Code, and (iv) allocations of
Partnership loss and deduction (or items thereof), including loss and deduction
described in Treas. Reg. Section 1.704-1(b)(2)(iv)(g), but excluding items
described in clause (b)(iii) above and loss or deduction described in Treas.
Reg. Section 1.704-1(b)(4)(i) or Section 1.704-1(b)(4)(iii). The Partners'
capital accounts also shall be maintained and adjusted as permitted by the
provisions of Treas. Reg. Section 1. 704-1(b) (2) (iv) (f) and as required by
the other provisions of Treas. Reg. Sections 1.704-1(b)(2)(iv) and
1.704-1(b)(4), including adjustments to reflect the allocations to the Partners
of depreciation, depletion, amortization, and gain or loss as computed for book
purposes rather than the allocation of the corresponding items as computed for
tax purposes, as required by Treas. Reg. Section 1.704-1(b)(2)(iv)(g). A Partner
that has more than one Partnership Interest shall have a single capital account
that reflects all such Partnership Interests, regardless of the class of
Partnership Interests owned by such Partner and regardless of the time or manner
in which such Partnership Interests were acquired. Upon the transfer of all or
part of a Partnership Interest, the capital account of the transferor that is
attributable to the transferred Partnership Interest or portion thereof shall
carry over to the transferee Partner in accordance with the provisions of Treas.
Reg. Section 1.704-1(b)(2)(iv)(l).
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ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.01 Allocations. (a) Except as may be required by section 704(c) of
the Code and Treas. Reg. Section 1.704-l(b)(2)(iv)(f)(4), and subject to the
provisions of Section 11.02 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.
(b) All items of income, gain, loss, deduction, and credit
allocable to any Partnership Interest that may have been transferred shall be
allocated between the transferor and the transferee based upon that portion of
the calendar year during which each was recognized as owning such interest,
without regard to the results of Partnership operations during any particular
portion of such calendar year and without regard to whether cash distributions
were made to the transferor or the transferee during such calendar year;
provided, however, that such allocation shall be made in accordance with a
method permissible under section 706 of the Code and the regulations thereunder.
5.02 Distributions. (a) From time to time the Managing 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 Managing 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 Managing 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. Immediately prior to any
such distribution, the capital accounts of the Partners shall be adjusted as
provided in Treas, Reg. Section 1.704-l(b)(2)(iv)(f).
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 Managing General Partner shall
have full, complete, and exclusive authority to manage and control the
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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. The
Managing General Partner may make all decisions and take all actions for the
Partnership not otherwise provided for herein, including, without limitation,
the following:
(i) entering into, making, and performing all contracts,
agreements, and other undertakings binding the Partnership as may be
necessary, appropriate, or advisable in furtherance of the purposes of
the Partnership and making all decisions and waivers thereunder;
(ii) opening and maintaining bank and investment accounts and
arrangements (including margin accounts and arrangements), drawing
checks and other orders for the payment of money, and designating
individuals with authority to sign or give instructions with respect to
such accounts and arrangements;
(iii) maintaining the assets of the Partnership in good order;
(iv) collecting sums due the Partnership;
(v) to the extent that funds of the Partnership are available
therefor, paying debts and obligations of the Partnership;
(vi) acquiring, utilizing for Partnership purposes, and
Disposing of any asset of the Partnership;
(vii) borrowing money or otherwise committing the credit of
the Partnership for Partnership activities and voluntary prepayments or
extensions of debt;
(viii) retaining the services of employees and agents of the
Partnership and the terms of any such arrangements;
(ix) selecting, removing, and changing the authority and
responsibility of lawyers, accountants, and other advisers and
consultants;
(x) obtaining insurance for the Partnership;
(xi) determining distributions of Partnership cash and other
property as provided in Section 5.02;
(xii) loaning or advancing sums of money or property of the
Partnership to any Partner or any of their Affiliates or to third
parties as provided in Sections 2.04 and 4.04(b); and
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(xiii) doing and performing all acts and deeds, or causing
same to be done or performed, necessary, helpful or advisable in
connection with, relating to or ancillary to the actions described in
subparagraphs (i) - (xi) above.
(b) Notwithstanding the provisions of Section 6.01(a),
without the written consent of Limited Partners having more than 50% of the
Sharing Ratios attributable to all Limited Partners, the Managing General
Partner shall not cause the Partnership to sell all or substantially all of the
Partnership's assets.
(c) No Partner other than the Managing 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.
(d) Any Person dealing with the Partnership, other than a
Partner, shall be entitled to rely on the authority of the Managing 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. Except indirectly with respect to compensation
received by the Partnership under the Management Agreement, the Managing General
Partner shall receive no compensation for its services as such.
6.03 Standards and Conflicts. (a) Except as otherwise expressly
provided herein, the Managing General Partner shall conduct the affairs of the
Partnership in good faith toward the best interests of the Partnership. The
Managing 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 Managing 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 Managing General Partner nor any other General Partner shall be required to
devote full time to Partnership business.
(b) Notwithstanding any other provision hereof, the
Managing 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.
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(c) Subject to the terms of Section 4.04(b) hereof, 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 Managing
General Partner.
6.04 Indemnification. To the fullest extent permitted by law, and
subject to the procedures in article 11 of the Act, 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.
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 pursuant to section 1.07 of the Act under the
circumstances and subject to the conditions therein stated. The Partners agree,
however, that the Managing 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 Managing General Partner in its capacity as such, a Partner (including
the Managing 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.
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(b) In any request for consent or approval from other
Partners, the Managing 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 12.02.
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 Managing 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 Managing 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.
ARTICLE VIII
TAXES
8.01 Tax Returns. The Managing 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 Managing 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 Managing 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 Managing General Partner, to elect, pursuant
to section 754 of the Code, to adjust the basis of Partnership
properties; and
(c) any other election the Managing General Partner
may deem appropriate and in the best interests of the
Partners.
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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 Managing 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 Managing General Partner in accordance with the terms
of this Agreement. The capital accounts of the Partners shall be maintained in
accordance with Section 4.05. The accounting year of the Partnership shall be
determined by the Managing General Partner.
9.02 Reports. The Managing 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.
9.03 Accounts. The Managing 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 Managing General
Partner, margin accounts and arrangements) for Partnership funds and investments
with such financial institutions, securities firms, and other firms as the
Managing General Partner may determine.
ARTICLE X
WITHDRAWAL, BANKRUPTCY, REMOVAL, ETC.
10.01 Withdrawal, Bankruptcy, Etc. of Managing General Partner. (a)
Each General Partner agrees that it will not withdraw from the Partnership as a
general partner. If a General Partner shall so withdraw from the Partnership in
violation of this Agreement, such withdrawal shall be effective no earlier than
the 90th day following notice of such withdrawal to all other Partners, and the
Partnership may recover damages from such General Partner, including, without
limitation, the reasonable cost of obtaining replacement of the services such
General Partner shall have been obligated to perform.
(b) A General Partner shall not cease to be a general partner
in the Partnership on the occurrence of an event of the type described in
section 4.02(a)(7)-(9) of the Act, but shall cease to be a general partner (and,
in the case of the Managing General Partner, Managing General Partner) on the
substantial completion of winding up of such General Partner's activities. A
General Partner
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shall notify each other Partner that an event of the type described in section
4.02(a)(4)-(10) of the Act has occurred with respect to it on or before the
fifth Business Day after such occurrence.
(c) Following any notice that the Managing General Partner
shall be withdrawing, or following the occurrence of an event of the type
described in section 4.02(a)(4)-(lO) of the Act with respect to the Managing
General Partner (without regard to the lapse of any time periods therein), a
Required Interest by written consent may select a new Managing General Partner,
which (if not already a General Partner) shall be admitted to the Partnership as
a General Partner effective immediately prior to the existing Managing General
Partner's ceasing to be a General Partner, with such Sharing Ratio as the
Limited Partners making such selection may specify, but only if such new
Managing General Partner shall have made such Capital Contribution as such
Limited Partners may specify and shall have executed and delivered to the
Partnership a document including such new Managing General Partner's notice
address, acceptance of all the terms and provisions of this Agreement, and an
agreement to perform and discharge timely all of its obligations and liabilities
hereunder. Notwithstanding the foregoing provisions of this Section 10.01(c), no
such new Managing General Partner shall be admitted (and the existing Managing
General Partner shall continue as such) if the event that permitted the
selection of a new Managing General Partner shall have been an event of the type
described in section 4.02(a)(5) of the Act that with the passage of time would
cause the existing Managing General Partner to become a Bankrupt Partner but,
due to the failure of such situation to continue, such Managing General Partner
does not become a Bankrupt Partner.
10.02 Removal of Managing General Partner. The Managing General Partner
may be removed only with the written consent of Limited Partners having more
than 50% of the Sharing Ratios attributable to all Limited Partners. Any such
action for removal also must (a) select a new Managing General Partner, (b)
specify the Capital Contribution it is to make, which shall be deposited with
the Partnership, and its Sharing Ratio, and (c) be accompanied by an instrument
executed by such new Managing General Partner including such new Managing
General Partner's notice address, acceptance of all the terms and provisions of
this Agreement, and an agreement to perform and discharge timely all of its
obligations and liabilities hereunder. The new Managing General Partner so
selected shall be admitted to the Partnership as a General Partner with the
Sharing Ratio specified, and such removal shall be effective only immediately
subsequent to such admission. Notwithstanding the foregoing provisions of this
Section 10.02, the right to remove the Managing General Partner shall not exist
or be exercised unless the Partnership shall have received a favorable opinion
from the Partnership's legal counsel (or other counsel acceptable to the Limited
Partners consenting to such removal) that the removal of the
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Managing General Partner and the selection and admission of a new Managing
General Partner will not result in (i) the loss of limited liability of any
Limited Partner or (ii) in the Partnership's being treated as an association
taxable as a corporation for federal income tax purposes. No other General
Partner may be removed.
10.03 Conversion of Interest. Simultaneously with a General Partner's
ceasing to be a General Partner, the former General Partner's Partnership
Interest as a General Partner shall be converted into that of a Limited Partner
in the Partnership having a Sharing Ratio equal to the Sharing Ratio of such
former General Partner as a General Partner immediately prior to its ceasing to
be a General Partner, and such General Partner shall be admitted to the
Partnership as a Limited Partner.
10.04 Bankrupt Partners. If any Partner shall become a Bankrupt
Partner, the Partnership shall have the option, exercisable by notice from the
Managing General Partner (including any newly designated Managing General
Partner) to the Bankrupt Partner (or its representative) at any time prior to
the 180th day after receipt of notice of the occurrence of the event causing it
to become a Bankrupt Partner, to buy, and upon the exercise of such option the
Bankrupt Partner or its representative shall sell, its Partnership Interest for
an amount equal to the fair market value thereof determined by agreement by the
Bankrupt Partner (or its representative) and the Managing General Partner;
provided, however, that if such Persons shall not agree on such fair market
value on or before the 30th day following the exercise of such option, either
such Person, by notice to the other, may require such determination to be made
by an independent appraiser specified in such notice, but if on or before the
tenth day following receipt the Person receiving such notice shall object to
such independent appraiser, and such Persons otherwise fail to agree on an
independent appraiser, either such Person may petition the United States
District Judge for the Northern District of Texas (Dallas Division) then senior
in service to designate such independent appraiser. The determination of such
independent appraiser shall be final and binding on all parties. The costs of
appraisal shall be borne equally by the Bankrupt Partner and the Partnership.
Such fair market value shall be paid in four equal cash installments, the first
due on closing and the remainder (together with accumulated interest on the
amount unpaid at the General Interest Rate) due on each of the first three
anniversaries thereof. The payment to be made to the Bankrupt Partner or its
representative pursuant to this Section 10.04 is, and shall be conclusively
deemed to be, in complete liquidation and satisfaction of all the rights and
interest of the Bankrupt Partner and its representative (and of any and all
Persons claiming by, through, or under the Bankrupt Partner and its
representative) in and in respect of the Partnership, including without
limitation, any Partnership Interest, any rights in specific Partnership
property,
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and any rights against the Partnership and (insofar as the affairs of the
Partnership are concerned) against the Partners and shall constitute a
compromise to which all Partners have agreed pursuant to section 5.02(d) of the
Act. If at the time any Partner shall become a Bankrupt Partner there shall be
only one other Partner, such other Partner shall have all the rights of the
Partnership and the Managing General Partner pursuant to this Section 10.04. If
the Bankrupt Partner shall be the existing Managing General Partner, the
Partnership Interest subject to this Section 10.04 shall be the Partnership
Interest into which such Managing General Partner's Partnership Interest shall
be converted pursuant to Section 10.03, along with any other Partnership
Interest it may have.
ARTICLE XI
DISSOLUTION, LIQUIDATION, AND TERMINATION
11.01 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 Managing General
Partner and a Required Interest;
(b) the date set forth in Section 2.06;
(c) a Managing General Partner shall cease to be a
General Partner as described in Section 10.01(a) or (b) and no
new Managing General Partner shall have been selected and
admitted as provided in Section l0.0l(c); or
(d) any other event causing dissolution as described
in section 8.01 of the Act (other than an event described in
section 4.02(a)(4) or (7)-(10) of the Act, except as provided
in Sections 10.01(b) and ll.0l(c)).
11.02 Liquidation and Termination. On dissolution of the Partnership,
unless it is reconstituted and continued as provided in Section 11.01, the
Managing General Partner shall act as liquidator or may appoint one or more
other Persons as liquidator; provided, however, that if the Partnership shall be
dissolved on account of an event of the type described in section
4.02(a)(4)-(10) of Act with respect to the Managing General Partner, the
liquidator shall be one or more Persons selected in writing by a Required
Interest. 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 Managing General Partner. The steps to be
accomplished by the liquidator are as follows:
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(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
and any advances described in Section 4.04) 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;
(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 distributee for costs, expenses, and
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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 distributee pursuant to this Section
11.02. The distribution of cash and/or property to a Partner in accordance with
the provisions of this Section 11.02 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 within the meaning
of section 5.02(d) of the Act. To the extent that a Partner shall return funds
to the Partnership, it shall have no claim against any other Partner for such
funds.
11.03 Cancellation of Certificate. On completion of the distribution of
Partnership assets as provided herein, the Partnership shall be terminated, and
the General Partners (or such other Person or Persons as the Act may require or
permit) 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 XII
GENERAL PROVISIONS
12.01 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.
12.02 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. A notice, request, or consent given pursuant hereto shall be
effective on receipt by the Person to receive it. All notices, requests, and
consents to be sent to a Partner shall be sent to or made at the addresses given
for such Partner on Exhibit A or in the instrument described in Section 3.02(d),
3.03, 10.01(c), or 10.02, or such other address as such Partner may specify by
notice to the other Partners. Any notice, request, or consent to the Partnership
shall be given to the Managing General Partner.
12.03 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.
- 20 -
12.04 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.
12.05 Amendment or Modification. This Agreement may be amended or
modified from time to time only by a written instrument executed by the Managing
General Partner and a Required Interest; provided, however, that (a) no
amendment or modification reducing a Partner's Sharing Ratio (other than to
reflect changes otherwise provided hereby) shall be effective without such
Partner's consent, (b) no amendment or modification reducing the required
Sharing Ratio or other measure for any consent or vote herein shall be effective
without the consent or vote of Partners having the Sharing Ratio or other
measure theretofore required, and (c) any amendment of the type described in
Section 3.03 may be adopted as therein provided.
12.06 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.
12.07 Governing Law; Severability. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT. MIGHT REFER THE GOVERNANCE OR
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. 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.
12.08 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.
12.09 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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12.10 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all signatory parties had signed the
same document. All counterparts shall be construed together and shall constitute
one and the same instrument.
* * * * *
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IN WITNESS WHEREOF, the initial Partners have executed this Agreement
as of the date first set forth above.
GENERAL PARTNER: IMCO RECYCLING INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
LIMITED PARTNER: IMCO INVESTMENT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
Initial Capital Sharing
Name and Address of Partner Contribution Ratio
------------------------------------ --------------- -------
General Partner:
IMCO Recycling Inc. 1.0%
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
Central Tower at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Limited Partner:
IMCO Investment Company 99.0%
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 97 North of Sapulpa
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
- 24 -
EXHIBIT B
FORM OF PROMISSORY NOTE
$_______________________ ____________, ___________ ____________________
FOR VALUE RECEIVED, the undersigned, ________________________________,
a _______________________________________ ("Maker") hereby unconditionally
promises to pay to the order of ________________________________________________
("Payee"), at _______________________________ or at such other address given to
Maker by Payee, the principal sum of ___________________________________ and
______________________________ ($______________.00), in lawful money of the
United States of America, together with interest (calculated on the basis of a
365 or 366-day year, as appropriate), on the unpaid principal balance from
day-to-day remaining, computed from the date hereof until maturity at the rate
per annum which shall from day-to-day be equal to the lesser of (a) the Maximum
Rate, or (b) the Fixed Rate.
Section 1. Definitions. When used in this Note, the following terms
shall have the respective meanings specified herein or in the Section referred
to:
"Event of Default" shall have the meaning ascribed to it in
Section 4 hereof.
"Fixed Rate" shall mean a rate of interest equal to _______
percent (__________%) per annum.
"Maximum Rate," as used herein, shall mean, with respect to
the holder hereof, the maximum nonusurious interest rate, if any, that
at any time, or from time to time, may be contracted for, taken,
reserved, charged, or received on the indebtedness evidenced by this
Note. To the extent that Article 5069-1.04, Title 79, Texas Revised
Civil Statutes, 1925, as amended, is relevant to any holder of this
Note for the purposes of determining the Maximum Rate, the Payee hereby
notifies Maker that the "applicable rate ceiling" shall be the
"indicated rate ceiling" referred to in Article 5069-1.04(a)(1) from
time to time in effect, as limited by Article 5069-1.04(b); provided,
however, that to the extent permitted by applicable law, Payee reserves
the right to change the "applicable rate ceiling" from time to time by
further notice and disclosure to Maker; and, provided further, that the
"Maximum Rate" for purposes of this Note shall
- 25 -
not be limited to the applicable rate ceiling under Article 5069-1,04
if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and
collected hereunder) shall permit a higher rate of interest.
"Obligation" shall mean all indebtedness, liabilities, and
obligations of every kind and character of Maker, now or hereafter
existing in favor of Payee, regardless of whether they are direct,
indirect, primary, secondary, joint, several, joint and several,
liquidated, unliquidated, fixed, or contingent, arising under this
Note.
Section 2. Payment, Principal and accrued interest on this Note,
computed as aforesaid, shall be due and payable in one installment, on that date
which is ten (10) years from the date of this Note, in the amount of the unpaid
principal balance and lawfully accrued interest on this Note as of such date.
All past-due principal and, to the extent permitted by applicable law,
past-due interest upon this Note shall bear interest at the Maximum Rate, or if
no Maximum Rate is established by applicable law, then at the rate per annum
which shall from day-to-day be equal to eighteen percent (18%) per annum.
Section 3. Waiver. Maker and each surety, endorser, guarantor and other
party ever liable for payment of any sums of money payable on this Note, jointly
and severally waive presentment, protest, notice of protest and non-payment, or
other notice of default, notice of acceleration and intention to accelerate, and
agree that their liability under this Note shall not be affected by any renewal
or extension in the time of payment hereof, or in any indulgences, or by any
release or change in any security for the payment of this Note, and hereby
consent to any and all renewals, extensions, indulgences, releases or changes,
regardless of the number of such renewals, extensions, indulgences, releases or
changes.
No waiver by Payee of any of its rights or remedies hereunder or under
any other document evidencing or securing this Note or otherwise shall be
considered a waiver of any other subsequent right or remedy of Payee; no delay
or omission in the exercise or enforcement by Payee of any rights or remedies
shall ever be construed as a waiver of any right or remedy of Payee; and no
exercise or enforcement of any such rights or remedies shall ever be held to
exhaust any right or remedy of Payee.
- 26 -
Section 4. Events of Default and Remedies. An "Event of Default" shall
exist hereunder if any one or more of the following shall occur and be
continuing:
(a) default shall occur in the performance of any of the
covenants or agreements of Maker contained herein or in any other
document executed or delivered to Payee in connection herewith;
(b) Maker shall (i) apply for or consent to the appointment of
a receiver, trustee, intervenor, custodian, or liquidator of itself or
of all or a substantial part of its assets, (ii) be adjudicated in a
bankrupt or insolvent or to file a voluntary petition for bankruptcy or
admit in writing that it is unable to pay its debts as they become due,
(iii) make a general assignment for the benefit of creditors, (iv) file
a petition or answer seeking a reorganization or an arrangement with
creditors or to take advantage of any bankruptcy or insolvency laws, or
(v) file an answer admitting the material allegations of or consent to
or default in answering a petition filed against it in any bankruptcy,
reorganization, or insolvency proceeding or take corporate action for
the purpose of affecting any of the foregoing.
Upon the occurrence of any Event of Default hereunder or under any
other agreement or instrument executed in connection herewith, then in
any such event the holder hereof may, at its option, (i) declare the
entire unpaid balance or principal of and accrued but unpaid interest
upon the Obligation to be immediately due and payable without
presentment or notice of any kind which Maker waives pursuant to
Section 3 herein; (ii) reduce any claim to judgment; and/or (iii)
pursue and enforce any of Payee's rights and remedies available
pursuant to any applicable law or agreement.
Section 5. Notice. Whenever this Note requires or permits any notice,
approval, request, or demand from one party to another, the notice, approval,
request, or demand must be in writing and shall be deemed to have been given
when personally served or when deposited in the United States mails, registered
or certified, return receipt requested, addressed to the party to be notified at
the following address (or at such other address as may have been designated by
written notice):
Payee: ________________________________________
________________________________________
Maker: ________________________________________
________________________________________
- 27 -
Section 6. Voluntary Prepayment. Maker reserves the right to prepay the
outstanding principal balance of this Note, in whole or in part, at any time and
from time to time, without premium or penalty. Any such prepayment shall be made
together with payment of interest accrued on the amount of principal being
prepaid through the date of such prepayment.
Section 7. Usury Laws. Regardless of any provision contained in this
Note or any document executed or delivered in connection herewith, Payee shall
never be deemed to have contracted for or be entitled to receive, collect or
apply as interest on this Note, any amount in excess of the Maximum Rate, and,
in the event that Payee ever receives, collects or applies as interest any such
excess, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of this Note, and, if the principal
balance of this Note is paid in full, any remaining excess shall forthwith be
paid to Maker. In determining whether or not the interest paid or payable under
any specific contingency exceeds the highest Maximum Rate, Maker and Payee
shall, to the maximum extent permitted under applicable law, (i) characterize
any non-principal payment (other than payments which are expressly designated as
interest payments hereunder) as an expense or fee rather than as interest, (ii)
exclude voluntary pre-payments and the effect thereof, and (iii) spread the
total amount of interest throughout the entire contemplated term of this Note so
that the interest rate is uniform throughout such term; provided, that if this
Note is paid and performed in full prior to the end of the full contemplated
term hereof, and if the interest received for the actual period of existence
thereof exceeds the Maximum Rate, if any, Payee or any holder hereof shall
refund to Maker the amount of such excess, or credit the amount of such excess
against the aggregate unpaid principal balance of all advances made by the Payee
or any holder hereof under this Note at the time in question.
Section 9. Applicable Laws. This Note is being executed and delivered,
and is intended to be performed in the State of Texas. Except to the extent that
the laws of the United States may apply to the terms hereof, the substantive
laws of the State of Texas shall govern the validity, construction, enforcement
and interpretation of this Note. In the event of a dispute involving this Note
or any other instruments executed in connection herewith, the undersigned
irrevocably agrees that
- 28 -
venue for such dispute shall lie in any court of competent jurisdiction in
Dallas County, Texas.
MAKER:
By: /s/ ▇▇▇▇▇ ▇. CHECK
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Name:____________________
Title:___________________
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