EXHIBIT 10.13
AGREEMENT OF LIMITED PARTNERSHIP
OF
MAVERICK TUBE, L.P.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY STATE SECURITIES LAWS. WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF, EXCEPT UPON DELIVERY TO THE
PARTNERSHIP OF ADVANCE NOTICE OF THE INTENDED SALE, TRANSFER OR OTHER
DISPOSITION AND, IF REQUESTED BY THE GENERAL PARTNER, AN OPINION OF COUNSEL
SATISFACTORY TO THE GENERAL PARTNER AND TO COUNSEL FOR THE PARTNERSHIP THAT
REGISTRATION OF SUCH SALE, TRANSFER OR OTHER DISPOSITION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR
ANY RULE OR REGULATION PROMULGATED THEREUNDER.
AGREEMENT OF LIMITED PARTNERSHIP
OF MAVERICK TUBE, L.P.
This Agreement of Limited Partnership is entered into as of this 30th
day of September 1997, by and among Maverick Tube Corporation, a Delaware
corporation, as the general partner (referred to herein as "Maverick" or
"General Partner"), and Maverick Investment Corporation, a Delaware corporation,
as a limited partner (referred to herein as "MIC" or "Limited Partner").
The Partnership was organized as a limited partnership pursuant to a
Certificate of Limited Partnership for the Partnership on September 11, 1997
filed with Secretary of State of the State of Delaware with Maverick Tube
Corporation, a Delaware corporation, as the sole General Partner and Maverick
Investment Corporation as the sole Limited Partner. Simultaneously with the
execution of this Agreement: (a) the General Partner is contributing the
Partnership Transferred Assets to the Partnership (subject to Assumed
Liabilities) in exchange for a five percent (5%) general partnership interest
(the "General Partnership Interest"); (b) the Partnership is assuming all of the
Assumed Liabilities; and (c) the Limited Partner is contributing the MIC
Transferred Assets to the Partnership in exchange for a ninety-five percent
(95%) limited partnership interest (the "Limited Partnership Interest").
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the Partners wish to incorporate completely the agreement
of the Partners.
ARTICLE I
DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, for
purposes of this Agreement, the following terms shall have the meaning ascribed
to them in this ARTICLE I. When the context requires, terms not otherwise
defined herein which, when initially used, are within quotation marks and with
the first letter of each word thereof (other than prepositions and articles
capitalized) shall have the same meaning as ascribed to them in the Contribution
Agreement.
1.1 Agreement. This Agreement of Limited Partnership and all amendments
thereof.
1.2 Assignment and Assumption Agreements. The assignment and assumption
agreements as contemplated by the Contribution Agreement, pursuant to which (i)
the General Partner will transfer and assign the Partnership Transferred Assets
to the Partnership (subject to the Assumed Liabilities), (ii) the Partnership
will assume the Assumed Liabilities, and (iii) the Limited Partner will transfer
and assign the MIC Transferred Assets to the Partnership.
1.3 Assumed Liabilities. The Assumed Liabilities as set forth in the
Contribution Agreement.
1.4 Business. The manufacture, distribution and sale of steel pipe and
tubular products heretofore conducted by Maverick at its Conroe, Texas and
▇▇▇▇▇▇▇, Arkansas facilities, as modified from time to time consistent with the
requirements of this Agreement.
1.5 Capital Contribution. The Partnership Transferred Assets (subject
to Assumed Liabilities) and the MIC Transferred Assets, contributed by the
General Partner and Limited Partner respectively.
1.6 Cash. Money and equivalents, such as checks, but only when
collected, and bank transfers.
1.7 Cash Available for Distribution. At any given time, all sums of
Cash, or converted to Cash by the Partnership during the period, provided by the
Business.
1.8 Code. The Internal Revenue Code of 1986, as amended, or any
successor statute or statutes constituting the United States tax laws.
1.9 Contribution Agreement. The Restructure and Contribution Agreement
among the parties hereto dated as of September 30, 1997 (the "Contribution
Agreement").
1.10 Delaware Limited Partnership Law. The Revised Uniform Limited
Partnership Act as adopted in the State of Delaware.
1.11 Dissolution Event. Any event affecting a General Partner which
would result in the dissolution of the Partnership under the Delaware Limited
Partnership Law.
1.12 Expenses. The expenses of the Partnership required in order to
operate the Partnership (including, without limitation, amounts set aside for
working capital, and to pay taxes, insurance, debt service obligations and other
costs and expenses incident to the operation of the Partnership).
1.13 General Partner. The general partner of the Partnership, initially
Maverick Tube Corporation, a Delaware corporation.
1.14 Limited Partner. The limited partner of the Partnership, initially
Maverick Investment Corporation, a Delaware corporation.
1.15 Partners. The General Partner and the Limited Partner.
1.16 Partnership. Maverick Tube, L.P., a Delaware limited partnership
governed by the Agreement and the Delaware Limited Partnership Law.
1.17 Regulation. The Income Tax Regulations promulgated under the Code,
as such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
1.18 Reserves. The sums which the General Partner, in its sole
discretion, reasonably determines should be set aside for the payment of future
Expenses (including capital expenditures) and for such other purposes as the
General Partner, in its sole discretion, reasonably determines to be desirable
for the Partnership.
1.19 Successor General Partner. The successor to the General Partner
appointed under Article VII of this Agreement.
1.20 Transferred Assets. The Transferred Assets as set forth in the
Contribution Agreement.
ARTICLE II
ORGANIZATION, OFFICE, TERM, LIMITATION ON LIABILITY,
LIMITED PARTNER POWERS AND REGISTERED AGENT
2.1 Organization of the Partnership. The Partnership is organized as a
limited partnership under the Delaware Limited Partnership Law, and the parties
desire that the Partnership continue to qualify as a limited partnership. As
otherwise required, the General Partner, on behalf of the Partnership and the
Limited Partner, shall execute and file an amended certificate of limited
partnership and all necessary or appropriate conforming certificates and
documents and perform such other filing, recording, publishing and other acts as
are necessary or appropriate to comply with all requirements for the formation
and operation of a limited partnership in the State of Delaware and all other
jurisdictions where the Partnership desires to conduct its Business. The General
Partner shall cause the Partnership to comply with all requirements for the
qualification of the Partnership as a limited partnership in any jurisdiction
before the Partnership conducts its Business in the jurisdiction.
2.2 Name and Principal Office. The name of the Partnership is "Maverick
Tube, L.P." or such other name or names as the General Partner determines and
designates by written notice to the Partners. The principal office of the
Partnership shall be located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as the General Partner
designates by written notice to the Limited Partner.
2.3 Term. The existence of the Partnership commenced on September 11,
1997, and shall continue until December 31, 2050, unless terminated earlier
pursuant to Section 8.1.
2.4 Purposes. The purposes of the Partnership shall be:
(a) To accept the Transferred Assets, subject to the Assumed
Liabilities, and to own and operate the Business of the manufacture,
distribution and sale of steel pipe and tubular products (the "Products"),
heretofore conducted by Maverick at two manufacturing and distribution
facilities, one located in Conroe, Texas and the other located in ▇▇▇▇▇▇▇,
Arkansas; and
(b) To conduct such other activities, including, without
limitation, the borrowing of funds and pledging, hypothecation, assignment or
other transfer or disposal of any property of the Partnership, the entering into
contracts (including, without limitation, the Management Agreement with
Maverick) and any other activity as may be necessary or appropriate to promote
the purposes set forth in clause (a) above.
2.5 Title to Partnership Assets. Title to the property of the
Partnership, initially consisting of the Transferred Assets, will be held in the
name of the Partnership.
2.6 Admission of Limited Partner. The Partnership hereby admits the
Limited Partner to the Partnership as a Limited Partner.
2.7 Limited Partner.
(a) Limitation on Limited Partner's Liabilities. No Limited
Partner shall be bound by or be personally liable for the expenses, liabilities
or obligations of the Partnership, the General Partner or any other Limited
Partner, and the liability of the Limited Partner shall be limited solely to its
Capital Contributions. No Limited Partner shall be generally obligated to lend
funds to the Partnership for any purpose.
(b) No Control of Business or Right to Act for Partnership -
Powers of Limited Partner. The Limited Partner, in its capacity as limited
partner, shall not participate in the control of the Business of the
Partnership, or have any right or authority to act on behalf of the Partnership
or to sign for or bind the Partnership. The rights of the Limited Partner with
respect to the Partnership shall be limited to those expressly set forth herein,
or as required by the Delaware Limited Partnership Law. No salaries shall be
paid to any Limited Partner as a limited partner of the Partnership.
(c) No Priority. No Limited Partner shall be entitled to any
distribution or to withdraw from the Partnership or to demand the return of any
contribution to the capital of the Partnership, except as specifically provided
in this Agreement. No Limited Partner shall have the right to demand or receive
property other than Cash as a distribution of income or capital. No Limited
Partner shall have priority over any other Limited Partner either as to the
return of any contribution to capital or as to distributions, except with
respect to the additional distribution or as otherwise specifically provided in
this Agreement.
2.8 Registered Agent and Registered Office. The initial registered
agent for the Partnership is The Corporation Trust Company, whose place of
business is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
General Partner shall give the Limited Partner prior written notice of any
change in the registered agent or registered office of the Partnership.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 General Partner Contributions. The General Partner will contribute
the Partnership Transferred Assets to the Partnership in exchange for the entire
General Partnership Interest in the Partnership.
3.2 Limited Partner Contributions. The Limited Partner shall contribute
the MIC Transferred Assets to the Partnership in exchange for the entire Limited
Partnership Interest.
3.3 Contribution Obligations. No Limited Partner, as a limited partner
of the Partnership, shall be required to contribute any capital to the
Partnership other than as provided in this Article III, except that if a Limited
Partner has received the return, by Cash distribution or otherwise, of the whole
or part of such Limited Partner's Capital Contribution, the Limited Partner will
remain liable to the Partnership, to the extent provided under the Delaware
Limited Partnership Law, for any sums (not in excess of the Capital Contribution
so returned) necessary to discharge the Partnership's liabilities to all
creditors who extended credit or whose claims arose before such return.
3.4 No Third Party Beneficiaries. The contribution obligation of the
Partners under this Article III is not intended to create any obligation to
third party beneficiaries. No creditor may rely on that obligation unless the
Partner against whom the obligation is asserted has expressly agreed in writing
that the creditor may so rely on the contribution obligation.
ARTICLE IV
DISTRIBUTIONS
Cash Available for Distribution, if any, shall be distributed at such
times as the General Partner may determine, as follows: (i) five percent (5%) to
the General Partner; and (ii) ninety-five percent (95%) to the Limited Partner.
ARTICLE V
RIGHTS, POWERS AND DUTIES OF GENERAL PARTNER
Subject to the powers of the Limited Partner expressly provided in this
Agreement or as required by the Delaware Limited Partnership Law, the following
provisions shall govern the General Partner's management of the Partnership's
Business:
5.1 Management of Partnership Business. The General Partner shall be
solely responsible for the management of the Partnership's Business with all
rights and powers generally conferred by law or necessary, advisable or
consistent to and with the accomplishment of the purposes of the Partnership or
as otherwise determined by the General Partner, in its judgment, to be in the
best interests of the Partnership. All decisions regarding management of the
Partnership shall be made by the General Partner. The General Partner is
expressly authorized to execute and deliver, on behalf of the Partnership, the
Management Agreement, Assignment and Assumption Agreements and all other
agreements, instruments, documents, promissory notes, mortgages, deeds of trust
and loan or credit agreements, and any amendments or modifications thereto, and
to act or vote on behalf of the Partnership where required.
5.2 Rights and Powers of the General Partner. In addition to the rights
and powers possessed by general partners under law, the General Partner shall
have all specific rights and powers required for or appropriate, in its
judgment, to the management of the Partnership's Business. Such rights and
powers shall include, by way of illustration but not by way of limitation, the
following rights and powers in furtherance of the Business of the Partnership:
(a) To borrow money for Partnership purposes from any entity,
including a Partner, but in the case of any borrowing from one or more of the
Partners, such borrowing will be at a rate no greater than market rates of
interest otherwise available to the Partnership, and to mortgage or otherwise
pledge any property and in connection with any such borrowing, mortgaging or
encumbering, to grant to any secured party, as remedies upon default,
acceleration of the indebtedness, appointment of a receiver and such other
remedies as the secured party may require, provided that none of such remedies
shall provide for or result in any recourse against any Limited Partner;
(b) To employ the services of agents, attorneys, brokers,
managing agents, architects, contractors, subcontractors, accountants and
others, including affiliates of the General Partner, on behalf of the
Partnership, provided that such services are performed upon reasonable terms and
conditions and the consideration to be paid therefor is reasonable (for such
purposes, the terms and conditions under which services are performed, and the
compensation to be paid therefor, shall be deemed reasonable if such terms,
conditions and compensation are not less favorable than those obtainable from
non-affiliated providers of similar services at the location where the services
are performed);
(c) To pay, collect, compromise, arbitrate, resort to or
defend legal action with respect to, or otherwise adjust, claims or demands of
or against the Partnership;
(d) To consent to the modification, renewal or extension of
any obligation of any entity to the Partnership or any agreement to which the
Partnership is a party or of which it is a beneficiary or by which it is bound;
(e) To sell or exchange all or any part of the property,
including sales or exchanges to a Partner or an affiliate of a Partner, or to
purchase property (real or personal, tangible or intangible), including
purchases from a Partner or an affiliate of a Partner; provided, however, that
in the case of any sale, exchange or purchase from or to a Partner or an
affiliate of a Partner other than as contemplated herein or the Contribution
Agreement, such sale, exchange or purchase shall require the consent of the
majority of the Limited Partners.
(f) To execute, acknowledge and deliver any and all
instruments necessary to the foregoing.
Each power specified above shall be exercised in good faith, to the
extent and in the manner consistent with and necessary for the proper management
of the Business of the Partnership, in the best judgment of the General Partner.
Notwithstanding the foregoing, the General Partner may not, without the consent
of the Limited Partner: (i) cause the Partnership to make loans to, or guarantee
loans on behalf of, any third party (including Partners and their affiliates)
other than in the ordinary course of the Partnership's Business; or (ii) enter
into a material contract, transaction or agreement with a Partner or an
affiliate of a Partner other than as provided in or contemplated by the
Contribution Agreement. All such agreements between affiliates and such other
contracts, transactions and agreements shall be fair and reasonable.
5.3 Other Business Ventures. Any Partner and any officer, director or
affiliate of a Partner may engage in or possess an interest in other business
ventures of every nature and description, independently or with others, and
neither the Partnership nor any of the Partners shall have any right by virtue
of this Agreement in or to such independent ventures or to the income or profits
derived therefrom. However, nothing contained in this Section 5.3 is intended to
absolve the General Partner from any liability to the Partnership or the Limited
Partner arising as a result of any breach by the General Partner of its
fiduciary obligations as General Partner to the Partnership or to the Limited
Partner, as limited partner of the Partnership.
5.4 Liability of the General Partner to Limited Partner and
Partnership; Indemnification.
(a) The General Partner shall devote such time and attention
to the Partnership as the General Partner deems reasonably necessary and
advisable to manage the affairs of the Partnership to its best advantage. Except
as otherwise specifically set forth herein, the General Partner (and its
officers, directors and employees) shall not be liable to the Limited Partner
because any taxing authority disallows or adjusts any deduction or credit in the
income tax returns of the Partnership or the Limited Partner. In addition, the
doing of any act or omission to do any act by the General Partner (and its
officers, directors and employees) which may cause or result in loss or damage
to the Partnership, if done in good faith and within the scope of authority
conferred by this Agreement, shall not subject the General Partner (or its
officers, directors and employees) to any liability to the Partnership or to the
Limited Partner. The Partnership will indemnify and hold the General Partner
(and its officers, directors and employees) harmless from any claim, loss,
expense, liability, action or damage to it resulting from any such act or
omission in the conduct of the Business of the Partnership in good faith and
within the scope of the authority conferred by this Agreement, including,
without limitation, reasonable costs and expenses of litigation and appeal
(including reasonable fees and expenses of attorneys engaged by the General
Partner in the defense or prosecution of any action relating to such act or
omission); but the General Partner (and its officers, directors and employees)
shall not be entitled to be indemnified or held harmless from any claim, loss,
expense, liability, action or damage due to or arising from the fraud, bad faith
or gross negligence of the General Partner (or any of its officers, directors
and employees).
(b) In addition to its obligations set forth in the
immediately preceding paragraph, the Partnership will indemnify and hold the
Limited Partner (and its respective officers, directors and employees) harmless
against and in respect of any and all damages, losses, deficiencies,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred or suffered by a Limited Partner resulting from,
relating to or arising out of: (a) the MIC Transferred Assets or the
manufacturer, distribution or sale by the Partnership of any Products resulting
from such operation; (b) the failure by the Partnership to perform and be bound
by any of the terms, covenants, conditions and restrictions relating to the MIC
Transferred Assets accepted by the Partnership under the Assignment and
Assumption Agreement; (c) any and all actions, suits, claims, or legal,
administrative, arbitration, governmental or other proceedings or investigations
against a Limited Partner or any director, officer, employee, agent,
representative or subcontractor of a Limited Partner, that relate to the MIC
Transferred Assets or the Business of the Partnership, whether or not the event
giving rise thereto occurred prior or subsequent to the occurrence of the MIC
Transferred Assets or that relate to any claim asserted against a Limited
Partner under any law or regulation, including, without limitation, laws and
regulations relating to the environment; and (d) any and all actions, suits,
claims, proceedings, investigations, demands, assessments, audits, fines,
judgments, cost and other expenses (including, without limitation, reasonably
legal fees and expenses) incident to any of the foregoing or to the enforcement
of the Partnership's obligation to indemnify the Limited Partner set forth in
this paragraph 5.4(b). The obligation of the Partnership to indemnify a Limited
Partner hereunder is limited to such party in its capacity as a Limited Partner.
ARTICLE VI
BOOKS, RECORDS AND REPORTS, ACCOUNTING,
TAX ELECTIONS, ETC.
6.1 Books, Records and Reports.
(a) The General Partner shall keep proper and complete records
and books of account in which all transactions and other matters relative to the
Partnership's Business are entered. The Partnership's books and records shall be
prepared in accordance with the method of accounting selected by the General
Partner in its sole discretion utilizing generally accepted accounting
principles, consistently applied. The Partnership shall also keep (i) a list or
lists containing the full name and last known mailing address of each current
and past Partner, (ii) a copy of the then effective Agreement and certificate of
limited partnership and all amendments thereto and restatements thereof,
together with executed copies of any powers of attorney pursuant to which any
certificate has been executed, (iii) copies of the Partnership's federal, state
and local income tax returns and reports, if any, for all years with respect to
which the period for assessment of a deficiency has not expired, (iv) copies of
any financial statements of the Partnership for the three most recent years, and
(v) such other records as required under the Delaware Limited Partnership Law.
Such books and records shall be maintained at the office of the Partnership and
shall be open for inspection and copying by the Partners or their duly
authorized representatives for reasonable Partnership purposes, including the
evaluation of their investment in the Partnership.
(b) The Partnership shall prepare quarterly and annual
financial statements showing the income and expenses of the Partnership for the
quarter or fiscal year and the balance sheets of the Partnership as of the end
of such quarter or fiscal year and shall have the annual statements audited by
the Partnership's certified public accountants. Each Partner shall be furnished
such quarterly statements within forty-five days of the end of each fiscal
quarter and the audited annual statements within one hundred twenty (120) days
of the close of each fiscal year. Prior to execution by the General Partner, the
Limited Partner shall be given a reasonable opportunity to review all federal
and material state income tax informational returns of the Partnership and to
consult with the General Partner with respect thereto. All additional
Partnership information necessary in the preparation of the Limited Partner's
federal income tax returns shall be furnished by the Partnership within one
hundred twenty (120) days of the close of each fiscal year of the Partnership.
Further, each Partner shall be furnished, within a reasonable time upon their
availability, such monthly general financial statements as are normally prepared
by the Partnership for management's internal use. The Partnership shall also
furnish to any Partner, upon reasonable demand (i) true and full information
regarding the state of the business and financial condition of the Partnership
and (ii) promptly after becoming available, a copy of the Partnership's federal,
state and local income tax returns for each year, together with a reconciliation
of capital account balances and changes thereto for each Partner.
6.2 Bank Accounts. The Partnership shall maintain its bank accounts in
such banking institutions as the General Partner determines, and withdrawals
shall be made only in the regular course of Partnership Business on such
signature or signatures as the General Partner determines.
6.3 Accountants. The independent accountants for the Partnership will
be selected by the General Partner, in its sole and absolute discretion. Such
independent accountants shall review the federal and all material state income
tax returns of the Partnership and shall audit and certify to all annual
financial statements of the Partnership.
6.4 Tax Elections.
(a) The Partners shall take all action on a timely basis
required to effect a Partnership election pursuant to Treasury Regulation
Section 301.7701-3(c) to be classified as an association taxable as a
corporation.
(b) All elections required or permitted by the Partnership
under the Code shall be made by the General Partner.
(c) The General Partner will not be responsible for initiating
any change in accounting methods from the methods initially chosen. The General
Partner shall not incur any liability for any election made by it in good faith.
ARTICLE VII
WITHDRAWAL OR REMOVAL AND ADMISSION OF PARTNERS
AND TRANSFER OF PARTNERSHIP INTERESTS
7.1 General Partner.
(a) The General Partner may not voluntarily withdraw from and
may not assign all or any part of its interest in the Partnership without the
consent of the majority of the Limited Partners.
(b) If a Dissolution Event occurs with respect to the General
Partner and no general partner remains as a general partner of the Partnership
to continue the Business of the Partnership, the General Partner or the General
Partner's legal representatives shall promptly notify the Limited Partner and
the Partnership shall wind up in accordance with Section 8.4, unless the consent
of the majority of the Limited Partners to continue the Business of the
Partnership is obtained. A Successor General Partner shall be appointed, if at
all, by the consent of the majority of the Limited Partners obtained within
ninety (90) days from the date of such Dissolution Event. The Successor General
Partner shall have the right to acquire the General Partner's interest in the
Partnership for an amount determined by the Partnership's accountants (at the
expense of the Partnership and with the assistance of such professional
appraisers or other counsel as are deemed necessary or desirable by such
accountants) to represent the fair market value of such interest at the date
upon which the Dissolution Event occurred; provided, however, that in the event
there is a material change involving the Partnership's assets, liabilities,
operations or Business during the period commencing on the date of the
occurrence of the Dissolution Event and ending on the date the Successor General
Partner is appointed, a request for a revaluation may be made by the Successor
General Partner or any Limited Partner. The right of a Limited Partner or the
Successor General Partner to request such revaluation shall be exercisable only
within 90 days after the date of notice to the Limited Partner of the
Dissolution Event. Such revaluation shall determine the fair market value of the
General Partner's interest in the Partnership immediately following the event
giving rise to the revaluation and shall be made by the Partnership's
accountants within thirty (30) days of the date requested. The expenses of the
revaluation, if any, shall be borne by the person requesting the revaluation.
The Successor General Partner's acquisition of the General Partner's interest
shall take place, if at all, within forty-five (45) days after the date upon
which the valuation is made, or if later, the date on which the revaluation is
made.
(c) The General Partner may be removed by any Limited Partner
if, and only if, the General Partner is found by a court of competent
jurisdiction to have willfully violated its fiduciary responsibilities as a
General Partner of the Partnership. Upon such removal, the Limited Partner may
designate a Successor General Partner in accordance with the procedure specified
in Section 7.1(b), whereupon the Successor General Partner will become entitled
to the removed General Partner's interest in the Partnership upon the Successor
General Partner's payment to the removed General Partner of the fair market
value of the General Partner's interest in the Partnership as determined in the
manner provided under Section 7.1(b).
7.2 Death, Incompetence, Dissolution or Withdrawal of a Limited
Partner.
(a) Upon the death, legal incapacity, bankruptcy or insolvency
of any individual Limited Partner (including an assignee who becomes a Limited
Partner), such Limited Partner's legally authorized personal representative
shall have all of the rights of a Limited Partner for the purpose of settling or
managing such Limited Partner's estate and shall have such power as the
deceased, incompetent, bankrupt or insolvent Limited Partner possessed to make
an assignment of the interest of such Limited Partner in the Partnership in
accordance with the terms of this Agreement.
(b) Upon the bankruptcy, insolvency, dissolution or other
cessation to exist as an entity of any Limited Partner which is not an
individual, the authorized representative of such entity shall have all the
rights of a Limited Partner for the purpose of effecting the orderly winding up
and disposition of the Business of such Limited Partner and such power as the
Limited Partner possessed to make an assignment of its interest in the
Partnership in accordance with the terms of this Agreement.
7.3 Assignment of Interest of Limited Partner.
(a) General. The Limited Partner shall have the right, subject
to the provisions of this Section 7.3, to sell or assign any and all of its
Limited Partnership Interest in the Partnership, provided that: (i) such
assignment is made by an instrument in form and substance satisfactory to
counsel for the Partnership, including an expression of the assignee to become a
Limited Partner, and such assignee's acceptance and adoption of the terms and
conditions of this Agreement, as amended from time to time, and agreement to pay
the expenses of such transfer incurred by the Partnership in connection with
such admission, including, for example, the cost of preparing, filing and
publishing any necessary amendment or amendments to the certificate of limited
partnership, and (ii) at the request of the General Partner, the assignee
delivers to the General Partner an opinion of counsel satisfactory to the
General Partner and counsel to the Partnership to the effect that registration
of the sale, assignment or other disposition is not required under the
Securities Act or applicable state law or any rule or regulation promulgated
thereunder.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND WINDING UP
8.1 Dissolution and Winding Up. Except as otherwise expressly provided
in this Agreement, the Partnership shall be dissolved and wound up upon the
occurrence of any of the following events:
(a) A Dissolution Event with respect to the last remaining General Partner,
unless the Business of the Partnership is continued in accordance with Section
7.1;
(b) A sale or other disposition of all or substantially all of the Partnership's
property;
(c) The distribution to the Partners of all Partnership property;
(d) The expiration of the term provided in Section 2.3;
(e) The written consent of the Partners;
(f) The entry of a decree of judicial dissolution by the circuit court of the
county of the principal place of business or registered office of the
Partnership; or
(g) as otherwise provided in the Delaware Limited Partnership Law.
Dissolution shall be effective on the date of the event giving rise to
the dissolution of the Partnership, but the Partnership shall not terminate
until its property shall have been distributed in accordance with the provisions
of Section 8.4. Neither the death, insanity, incompetency, bankruptcy,
insolvency or similar event of dissolution or liquidation of a Limited Partner
shall dissolve the Partnership.
8.2 Liquidating Trustee. Upon the occurrence of an event under Section
8.1 giving rise to the dissolution and winding up of the Partnership, the
liquidating trustee (which will be the General Partner unless the General
Partner is the subject of the Dissolution Event) will proceed diligently to wind
up the affairs of the Partnership and distribute its assets in accordance with
the provisions of Section 8.4. During the interim, the liquidating trustee will
continue to exercise the rights and operate the Business of the Partnership
consistently with the liquidation thereof, exercising in connection therewith
all the power and authority of the General Partner under this Agreement. If the
General Partner is not permitted to be the liquidating trustee, then a
liquidating trustee shall be selected by the holders of more than fifty percent
(50%) of the total Limited Partnership Interests.
8.3 Accounting on Dissolution. Upon the occurrence of an event under
Section 8.1 giving rise to the dissolution and winding up of the Partnership,
the liquidating trustee will cause the Partnership's accountants to make a
complete accounting of the assets, liabilities and operations of the Partnership
as of the last day of the month in which the dissolution occurs.
8.4 Liquidation and Termination. As expeditiously as possible:
(a) The liquidating trustee will pay all liabilities of the
Partnership and establish Reserves, if the liquidating trustee deems Reserves to
be necessary, for payment of future or contingent Partnership obligations.
(b) The liquidating trustee will distribute the balance of the
proceeds of the liquidation among the Partners as follows: (i) five percent (5%)
to the General Partner; and (ii) ninety-five percent (95%) to the Limited
Partner.
(c) Unless agreed to in writing by all of the Partners, the
Limited Partner shall have no right to demand and receive property other than
Cash upon liquidation and the liquidating trustee, in any event, shall have the
power to sell property for Cash in order to provide for payment of liabilities
and establishment of Reserves. All salable property of the Partnership may be
sold in connection with any liquidation at public or private sale, conducted in
a commercially reasonable manner, at such price and upon such terms as the
liquidating trustee, in its sole discretion, may deem advisable. Any Partner and
any Entity in which any Partner is in any way interested may purchase property
at such sale.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
9.1 Representations, Warranties and Agreements of the Limited Partner.
The Limited Partner represents, warrants, confirms and agrees with the other
Partners as follows:
(a) Such Limited Partner has full right, power and authority
to execute and deliver this Agreement and to perform each of such Limited
Partner's obligations hereunder.
(b) This Agreement has been duly executed and delivered by or
on behalf of such Limited Partner and constitutes the legal, valid and binding
obligation of such Limited Partner in accordance with its terms.
(c) Such Limited Partner is not subject to any restriction or
agreement which prohibits or would be violated by the execution and delivery of
this Agreement or by the consummation of the transactions contemplated herein or
pursuant to which the consent of any third person, firm or corporation is
required in order to give effect to the transactions contemplated herein.
(d) Such Limited Partner (i) has such knowledge of business
and financial affairs as is necessary to enable it to understand the nature of
and the risks attendant to the investment contemplated herein and to understand
the particular financial, legal and tax implications of the Business to be
conducted by the Partnership; and (ii) has had access to any and all information
concerning the Partnership which the Limited Partner and the Limited Partner's
legal, tax and other advisors requested or considered necessary to make a proper
evaluation of such an investment and has received such representations and
warranties with respect thereto as deemed by such Limited Partner as necessary
and appropriate in connection with such evaluation.
(e) Such Limited Partner understands that the Limited
Partnership Interest being acquired has not been registered under the Securities
Act of 1933, as amended, on the grounds that the investment in the Partnership
is exempt from registration thereunder. Such Limited Partner further understands
that the Limited Partnership Interest being acquired by it has not been
registered under the securities laws of any other jurisdiction on the grounds
that the investment in the Partnership is likewise exempt from registration.
Such Limited Partner represents that its Limited Partnership Interest is being
acquired for investment for such Limited Partner's own account, with no present
intention of reselling or otherwise disposing of any portion of such investment
and understands that the reliance of the Partners and the Partnership upon such
exemptions is predicated upon the lack of such intention. Such Limited Partner
in no event will sell, transfer or otherwise dispose of its Limited Partnership
Interest or any portion thereof, unless and until such Limited Partner delivers
to the Partnership advance notice of the intended sale, transfer or other
disposition and, if requested by the General Partner, an opinion of counsel
reasonably satisfactory to the General Partner and to counsel for the
Partnership that registration is not required for such sale, transfer or other
disposition under, and that any such sale, transfer or other disposition will
not violate the Securities Act, or applicable state securities laws or any rule
or regulation promulgated thereunder.
(f) Such Limited Partner further acknowledges the Limited
Partner's understanding that no trading market for Limited Partnership Interests
exists.
9.2 Representations, Warranties and Agreements of the General Partner.
The General Partner represents and warrants to and confirms and agrees with the
other Partners that:
(a) The General Partner has full right, power and authority to
execute and deliver this Agreement and to perform each of its obligations
hereunder.
(b) The General Partner has taken all corporate action to duly
execute and deliver this Agreement.
(c) This Agreement has been duly executed and delivered and is
a duly and validly binding obligation of the General Partner in accordance with
its terms.
(d) The General Partner is not subject to any restriction or
agreement which prohibits or would be violated by the execution and delivery of
this Agreement or the consummation of the transactions contemplated herein or
pursuant to which the consent of any third person, firm or corporation is
required in order to give effect to the transactions contemplated herein.
(e) The General Partner will not permit the Partnership to
issue additional Limited Partnership Interests, except in connection with a
permitted sale or other disposition by Limited Partner of all or any portion of
its Limited Partnership interest.
ARTICLE X
APPOINTMENT OF GENERAL PARTNER AS ATTORNEY-IN-FACT
10.1 Appointment as Attorney-in-Fact. Each Limited Partner hereby
irrevocably constitutes and appoints the General Partner its true and lawful
attorney-in-fact (with full power and authority in said attorney to substitute
another attorney in such attorney's place and to revoke such substitution) to
execute, acknowledge, deliver, swear to, file and record at the appropriate
public office such documents as may be necessary or appropriate to carry out the
provisions of this Agreement, including:
(a) This Agreement and any amendments to this Agreement
required by the laws of the United States or any state;
(b) All certificates of limited partnership and other
certificates or instruments (including counterparts of this Agreement) and
amendments thereto, and any amendment of this Agreement, which the General
Partner deems appropriate to qualify or continue the Partnership as a limited
partnership in any jurisdiction in which the Partnership may conduct business or
to correct an error in this Agreement or the certificate of limited partnership;
(c) All instruments, including amendments to the certificate
of limited partnership and amendments to this Agreement, which the General
Partner deems appropriate to reflect the admission of a Partner to or the
withdrawal of a Partner from the Partnership in accordance with the terms of
this Agreement; and
(d) All conveyances and other instruments which the General
Partner deems appropriate to reflect the dissolution and termination of the
Partnership.
10.2 Continuing Effect. The appointment by the Limited Partners of the
General Partner, as their attorney-in-fact shall be deemed to be a power coupled
with an interest, in recognition of the fact that each of the Partners under
this Agreement will be relying upon the power of the General Partner to act as
contemplated by this Agreement in any filing or other action on behalf of the
Partnership, and shall survive the bankruptcy, death or incompetence of any
Partners hereby giving such power and the transfer or assignment of all or any
part of the interest of such Partners; provided, that in the event of the
transfer by a Limited Partner of all or any part of its interest, the foregoing
power of attorney shall survive the delivery of the assignment by the Limited
Partner of the whole or any portion of such Limited Partner's interest; except
that where such assignee has been approved by the General Partner for admission
to the Partnership as a Limited Partner, the power of attorney shall survive the
delivery of such assignment for the sole purpose of enabling the General Partner
to execute, acknowledge and file any instruments necessary to effect such
substitution.
ARTICLE XI
GENERAL
11.1 Notices. All communications, notices and consents provided for
herein shall be in writing and be given in person or by means of telex, telecopy
or other wire transmission (with request for assurance of receipt in a manner
typical with respect to communications of that type) or by mail, and shall
become effective (x) on delivery if given in person, (y) on the date of
transmission if sent by telex, telecopy or other wire transmission, or (z) four
business days after being deposited in the mails (addressed to the address set
forth following the person's or Entity's name on the signature page hereto),
with proper postage for first class registered or certified mail, prepaid.
Partners may change their addresses for the purpose of this Section
11.1 by notice to the Partnership at its principal office in the manner provided
in this Section.
11.2 Further Assurances. The Partners agree to execute, acknowledge,
deliver, file, record and publish such further certificates, instruments,
agreements and other documents, and to take all such further action as may be
required by law or deemed by the General Partner to be necessary in furtherance
of the Partnership's purposes and the objectives and intentions underlying this
Agreement and not inconsistent with the terms of this Agreement.
11.3 Entire Agreement. This instrument incorporates the entire
agreement among the parties hereto, regardless of anything to the contrary
contained in any certificate of limited partnership or other instrument or
notice purporting to summarize the terms of this Agreement, whether or not the
same shall be recorded or published.
11.4 Amendments.
(a) To the extent permitted by the Delaware Limited
Partnership Law, this Agreement and any certificate of limited partnership may
be amended only upon the unanimous consent of the Partners.
(b) In addition to any amendment otherwise authorized herein,
the General Partner may amend this Partnership Agreement from time to time
without the consent of the Limited Partner:
(i) to reflect the addition or substitution of Limited
Partner; or
(ii) to make all filings as may be necessary or proper to
provide that this Agreement shall constitute, for all
purposes, an agreement of limited partnership under the
terms of the laws of the State of Delaware as in effect
from time to time.
11.5 Gender and Number. Unless the context otherwise requires, when
used in the Agreement, the singular includes the plural and vice versa, and the
masculine includes the feminine and neuter and vice versa.
A person is deemed to include an individual or any other Entity.
11.6 Benefit. This Agreement is binding upon and inures to the benefit
of the parties to this Agreement, their heirs, legal representatives, successors
and assigns.
11.7 Captions. Captions are inserted for convenience only and shall not
be given any legal effect.
11.8 Execution. This Agreement may be executed in any number of
counterparts, and each such counterpart will, for all purposes, be deemed an
original instrument, but all such counterparts together will constitute but one
and the same agreement.
11.9 Governing Law and Severability. This Agreement shall be governed
by the laws of the State of Delaware. If any provision hereof is determined to
be invalid or unenforceable, it shall be modified or deleted, if necessary, from
this Agreement in order to prevent this Agreement as a whole from being rendered
invalid or unenforceable, and this Agreement shall be interpreted to give effect
to the intention of the Partners ascertained from this Agreement as a whole,
even if that requires taking the invalid or unenforceable provision into
consideration in ascertaining such intention (but only for that purpose).
IN WITNESS WHEREOF, this Agreement has been duly sworn to and executed
as of the date first above written.
GENERAL PARTNER
Maverick Tube Corporation,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
LIMITED PARTNER
Maverick Investment Corporation,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
