EXHIBIT 3.30
AGREEMENT OF LIMITED PARTNERSHIP
OF
WINCUP TEXAS, LTD.
THIS AGREEMENT OF LIMITED PARTNERSHIP of WinCup Texas, Ltd. (the
"Agreement") dated as of January 20, 1999 (the "Effective Date"), is entered
into by and between WinCup GP, L.L.C., a Delaware limited liability company, as
general partner ("General Partner"), and WinCup LP, L.L.C., a California
corporation, as limited partner ("Limited Partner").
WITNESSETH
WHEREAS, the General Partner and the Limited Partner wish to form a limited
partnership pursuant to the Texas Limited Partnership Act, as amended from time
to time, by filing a Certificate of Limited Partnership with the office of the
Secretary of State of the State of Texas and entering into this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms used in this Agreement shall (unless
otherwise expressly provided herein or unless the context otherwise requires)
have the following respective meanings:
"Act" means The Texas Revised Limited Partnership Act, Tex. Rev. Civ. Stat.
Xxx. Art. 6132a-1 as it may be amended from time to time, and any successor act.
"Adjusted Capital Account Deficit" means, with respect to any Limited
Partner, the deficit balance, if any, in such Limited Partner's Capital Account
as of the end of the relevant fiscal year, after giving effect to the following
adjustments:
(a) Credit to such Capital Account by any amounts which such Limited
Partner is obligated to restore pursuant to any provision of this Agreement or
is deemed obligated to restore under Treas. Reg. (S) 1.704-2(g)(1) and (S)
1.704-2(i)(5); and
(b) Debit to such Capital Account the items described in Treas. Reg.
(S) 1.704-1(b)(2)(ii)(d)(4),(S) 1.704-1(b)(2)(ii)(d)(5) and (S)
1.704-1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Treas. Reg. (S) 1.704-1(b)(2)(ii)(d) (relating to
the "alternate test for economic effect") and shall be interpreted consistently
therewith.
"Affiliate" or "Affiliates" means as to any Person, any other Person that,
directly or indirectly, through one or more intermediaries, controls is
controlled by, or is under common control with, such Person or any subsidiary of
such Person. The term "control" (including the terms "controlled by" or "under
common control with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through ownership, by contract, or otherwise.
"Capital Account" means, with respect to a Partner, the Capital Account
maintained for such Partner in accordance with the following provisions:
(a) To each Partner's Capital Account there shall be credited such
Partner's Capital Contributions, such Partner's distributive share of Profits,
any items in the nature of income or gain which are specially or curatively
allocated pursuant to Section 5.2 hereof, and the amount of any Partnership
liabilities assumed by such Partner or which are secured by any asset of the
Partnership distributed to such Partner.
(b) To each Partner's Capital Account there shall be debited the
amount of cash and the Gross Asset Value of any Partnership asset distributed to
such Partner pursuant to any provision of this Agreement, such Partner's
distributive share of Losses, any items in the nature of expenses or losses
which are specially or curatively allocated pursuant to Section 5.2 hereof, and
the amount of any liabilities of such Partner assumed by the Partnership or
which are secured by any property contributed by such Partner to the
Partnership.
(c) In the event all or a portion of a Partnership Interest is
transferred in accordance with the terms of this Agreement, the transferee shall
succeed to the Capital Account of the transferor to the extent it relates to the
transferred Partnership Interest.
(d) In determining the amount of any liability for purposes of this
definition of Capital Account, there shall be taken into account Code (S) 752(c)
and any other applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Treas.
Reg. (S)(S) 1.704-1(b) and 1.704-2, and shall be interpreted and applied in a
manner consistent with such Regulations.
"Capital Contributions" means, with respect to any Partner, the amount of
money and the initial Gross Asset Value of any property contributed to the
Partnership with respect to the Partnership Interest held by such Partner.
"Certificate of Limited Partnership" means the Certificate of Limited
Partnership of WinCup Texas, Ltd. filed with the Secretary of State of the State
of Texas, as it may be amended and/or restated from time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time (or any corresponding provisions of succeeding law).
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"Depreciation" means, for each fiscal year or other period, an amount equal
to the depreciation, amortization, or other cost recovery deduction allowable
for federal income tax purposes with respect to an asset for such year or other
period, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such year or
other period, Depreciation shall be an amount which bears the same ratio to such
beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however, that if the
federal income tax depreciation, amortization, or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the General
Partner.
"Effective Date" shall have the meaning set forth in the introduction to
this Agreement.
"General Partner" or "General Partners" means WinCup GP, L.L.C., a Delaware
limited liability company, or any additional Persons admitted to the Partnership
as a general partner of the Partnership as herein provided, but shall not
include any Person who has ceased to be a general partner in the Partnership in
accordance with this Agreement and the Act.
"Gross Asset Value" means, with respect to any asset, the asset's adjusted
basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market value of such asset,
as determined by the contributing Partner and the General Partner;
(b) The Gross Asset Values of all Partnership Assets shall be adjusted
to equal their respective gross fair market values, as determined by the General
Partner, as of the following times: (i) the acquisition of an additional
interest in the Partnership by any new or existing Partner in exchange for more
than a de minimis Capital Contribution, (ii) the distribution by the Partnership
to a Partner of more than a de minimis amount of Property as consideration for a
Partnership Interest; and (iii) the liquidation of the Partnership within the
meaning of Treas. Reg. (S) 1.704-1(b)(2)(ii)(g) (relating to when a liquidation
of a partnership occurs); provided, however, that adjustments pursuant to
clauses (i) and (ii) above shall be made only if the General Partner, in its
sole discretion, determines that such adjustments are necessary or appropriate
to reflect the relative economic interests of the Partners in the Partnership;
(c) The Gross Asset Value of any Partnership Asset distributed to any
Partner shall be the gross fair market value of such asset on the date of
distribution as determined by the General Partner; and
(d) The Gross Asset Values of Partnership Assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code (S) 734(b) or Code (S) 743(b), but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to
Treas. Reg. (S) 1.704-1(b)(2)(iv)(m) and the definition of Profits and Losses
(and allocations pursuant to Section 5.2(g) hereof); provided, however, that
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Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to
the extent the General Partner determines that an adjustment pursuant to
subparagraph (b) is necessary or appropriate in connection with a transaction
that would otherwise result in an adjustment pursuant to this subparagraph (d).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to subparagraphs (a), (b) or (d), such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect to
such asset for purposes of computing Profits and Losses.
"Indemnitee" shall mean (i) the General Partner, (ii) any Person who is or
was an Affiliate of the General Partner, (iii) any Person who is or was an
officer, director, employee, partner, agent or trustee of the General Partner,
the Partnership, or any such Affiliate, or (iv) any Person who is or was serving
at the request of the General Partner, or any such Affiliate as a director,
officer, employee, partner, agent or trustee of another Person.
"Limited Partner" or Limited Partners" means WinCup LP, L.L.C., a Delaware
limited liability company, or any additional Person admitted to the Partnership
as a limited partner of the Partnership as herein provided, but shall not
include any Person who has ceased to be a limited partner in the Partnership in
accordance with this Agreement and the Act.
"Nonrecourse Deductions" shall have the meaning set forth in Treas.
Reg. (S)(S) .1.704-2(b)(1) and 1.704-2(c).
"Partner" or "Partners" means the General Partner and the Limited Partner
and any other Person who after the date hereof executes a counterpart of this
Agreement as a partner of the Partnership.
"Partner Nonrecourse Debt" has the meaning set forth in Treas. Reg (S)
1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" means that amount determined in
accordance with the principles of Treas. Reg. (S) 1.704-2(i)(3).
"Partner Nonrecourse Deductions" shall have the meaning set forth in Treas.
Reg. (S)(S) 1.704-2(i)(1) and 1.704-2 (i)(2).
"Partnership" means WinCup Texas, Ltd., a Texas limited partnership.
"Partnership Assets" means all real and personal property owned by the
Partnership and any improvements thereto, and shall include both tangible and
intangible property.
"Partnership Interest" means, with respect to any Partner, its interest in
the Partnership, including the right to receive distributions of Partnership
assets and the right to receive allocations of income, gain, loss, deduction or
credit of the Partnership.
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"Partnership Minimum Gain" shall have the meaning set forth in Treas.
Reg. (S)(S) 1.704-2(b)(2) and 1.704-2(d).
"Partnership Percentage" means the Partnership Interest stated as a
percentage for each Partner as set forth in Section 4.1.
"Person" means in individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, limited
liability company, joint venture, or other entity, or a government or any
political subdivision or agency thereof, or any trustee, receiver, custodian, or
similar official.
"Profits" and "Losses" means, for each fiscal year or other period, an
amount equal to the Partnership's taxable income or loss for such year or period
determined in accordance with Code (S) 703(a) (for this purpose, all items of
income, gain, loss, or deduction required to be stated separately pursuant to
Code (S) 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(a) Any income of the Partnership that is exempt from federal income
tax and not otherwise taken into account in computing Profits or Losses pursuant
to this definition of Profits and Losses shall be added to such taxable income
or loss;
(b) Any expenditures of the Partnership described in Code (S)
705(a)(2)(B) or treated as Code (S) 705(a)(2)(B) expenditures pursuant to Treas.
Reg. (S) 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing
Profits or Losses pursuant to this definition of Profits and Losses, shall be
subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Partnership Asset is
adjusted as required by the terms of the definition of Gross Asset Value hereof,
the amount of such adjustment shall be taken into account as gain or loss from
the disposition of such asset for purposes of computing Profits or Losses;
(d) Gain or loss resulting from any disposition of Partnership Assets
with respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property disposed
of, notwithstanding that the adjusted tax basis of such property differs from
its Gross Asset Value;
(e) In lieu of the depreciation, amortization, and other coast
recovery deductions taken into account in computing such taxable income or loss
of the Partnership, there shall be taken into account Depreciation for such
fiscal year or other period, computed in accordance with the definition of
Depreciation herein;
(f) To the extent an adjustment to the adjusted tax basis of any
Partnership Asset pursuant to Code (S) 734(b) is required pursuant to Treas.
Reg. (S) 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital
Accounts as a result of a distribution other than in liquidation of a Partner's
Partnership Interest, the amount of such adjustment shall be treated as
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an item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases the basis of the asset) from the disposition of the
asset and shall be taken into account for purposes of computing Profits or
Losses; and
(g) Notwithstanding any other provisions of this definition, any items
which are specially or curatively allocated pursuant to Section 5.2 hereof shall
not be taken into account in computing Profits or Losses.
"Regulatory Allocations" shall have the meaning set forth in Section 5.2
hereof.
"Service" means the Internal Revenue Service of the United States of
America.
"Transfer" means a sale, assignment, transfer, exchange, mortgage, pledge,
grant of a security interest, or other disposition or encumbrance, or an
agreement to accomplish any of the foregoing.
"Treasury Regulations" (or "Treas. Reg." or "Regulation") means the Federal
income tax regulations (including proposed and temporary) promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
1.2 Other Terms. Other terms may be defined elsewhere in the text of this
Agreement and shall have the meanings indicated therein.
ARTICLE II
FORMATION OF LIMITED PARTNERSHIP
2.1 Formation. Upon the first proper filing of the Certificate of Limited
Partnership, the Persons executing this Agreement as of the date hereof, hereby
form the Partnership pursuant to the Act, upon the terms and conditions set
forth herein.
2.2 Name. The name of the Partnership shall be WinCup Texas, Ltd., and all
Partnership business shall be conducted in that name or such other name or names
that comply with applicable law as the General Partner may designate from time
to time.
2.3 Registered Office: Principal Office and Registered Agent. The address
of the initial registered office of the Partnership shall be 0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxx Xxxxx, Xxxxx 00000. The principal office of the Partnership shall
be 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000 or such other place as
the General Partner may from time to time designate.
2.4 Term of Partnership. The Partnership's existence shall commence on the
effective date of the initial filing of the Certificate of Limited Partnership
as required under the Act and shall continue until the Partnership terminates
pursuant to Section 12.3 hereof following dissolution.
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2.5 Purpose. The permitted activities of the Partnership include any
business which may be lawfully conducted by a limited partnership organized
pursuant to the Act.
2.6 Foreign Qualification. Prior to conducting business in any jurisdiction
other than Texas, the General Partner shall cause the Partnership to comply, to
the extent such matters are reasonably within the control of the 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. Upon the request of the General Partner, each
Partner shall execute, acknowledge, swear to, and deliver all certificates and
other instruments conforming with this Agreement that are necessary or
appropriate to form, qualify, continue, and terminate the Partnership as a
limited partnership under the laws of the State of Texas and to qualify,
continue, and terminate the Partnership as a foreign limited partnership (or a
partnership in which the Limited Partners have limited liability) in all other
jurisdictions in which the Partnership may conduct business.
2.7 Merger, Exchange or Conversion. The Partnership may effect or
participate in a merger or exchange, as such terms are used in Section 2.11 of
the Act, or in a conversion, as such term is used in Section 2.15 of the Act, or
enter into an agreement to participate in a merger, exchange or conversion, with
the consent of the General Partner.
2.8 Addresses of Partners. The name and business address of each Partner is
as listed below, and each such Person is admitted to the Partnership as a
general partner or a limited partner, as the case may be, at the time the
Partnership's existence begins under Section 2.4.
Partner Address
------- -------
WinCup GP, L.L.C. 0 Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
WinCup LP, L.L.C. 0 Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
ARTICLE III
DISPOSITIONS OF INTERESTS
3.1 General Prohibition. Neither a Partner nor any assignee of a Partner
shall make or suffer any Transfer of all or any part of its Partnership
Interest, whether now owned or hereafter acquired, except in accordance with the
terms of this Agreement and any purported Transfer not made in compliance with
this Agreement shall be void and of no force and effect.
3.2 Transfer by General Partner. The General Partner may make or suffer any
Transfer of al or any part of its Partnership Interest, whether now owned or
hereafter acquired, without the prior written consent of the Limited Partners.
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3.3 Transfer by Limited Partners. No Limited Partner shall make or suffer
any Transfer of all or any part of its Partnership Interest, whether now owned
or hereafter acquired, without the prior written consent of the General Partner.
3.4 Securities Law Compliance. The Partnership Interests have not been
registered with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, or the state securities laws of Texas or any other state.
Without such registration, no Limited Partner may effect or suffer a Transfer of
all or any part of its Partnership Interest without delivery to the General
Partner of an opinion of counsel satisfactory to the General Partner that such
registration is not required for such transfer and/or submission to the General
Partner of such other evidence as may be reasonably satisfactory to the General
Partner to the effect that any transfer will not be in violation of the
Securities Act of 1933, as amended, applicable state securities laws, or any
rule or regulation promulgated thereunder. All costs incurred by the Partnership
in connection with any Transfer or admission of a Person to the Partnership
shall be borne and paid by the Partner effecting such Transfer and any Person
admitted to the Partnership in connection therewith within ten (10) days after
the receipt by such Partner and Person of the Partnership's invoice for the
amount due.
3.5 Substituted Partners. Unless otherwise provided in this Agreement, an
assignee of a Partner may become a substituted partner only with the consent of
the General Partner and compliance with any other requirements of the Act (other
than any that require a different consent of Partners).
3.6 Additional Partners. Additional Persons may be admitted to the
Partnership as General Partners of Limited Partners and additional interests in
the Partnership created and issued to those Persons and to existing Partners at
the direction of the General partner on such terms and conditions as the General
Partner may determine at the time of admission. Such admission or issuance shall
specify the Partnership Percentages applicable to new interests in the
Partnership 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 General Partner. Any such admission must
also comply with the provisions of Section 3.4 and shall not be effective until
such new Partner has executed and delivered to the General Partner a document
including such new partner's notice address, its agreement to be bound by this
Agreement, and an agreement to perform and discharge timely all of its
obligations and liabilities hereunder. Additionally, such new Partner shall be
liable for all costs incurred by the Partnership in connection with the
admission of such new Partner to the Partnership and shall pay such costs within
ten (10) days after its receipt of the Partnership's invoice therefor.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 Initial Capital Contributions.
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All capital contributions were made prior to the corporation's
conversion to limited partnership. No further contributions shall be required.
Partner Partnership Percentage
------- ----------------------
General Partner 1%
Limited Partner 99%
4.2 Additional Capital Contributions of the Partners. No Partner shall be
required to make any Capital Contributions to the Partnership beyond those
described in this Agreement or otherwise agreed to in writing by the Partner
from whom such additional Capital Contribution is sought.
4.3 Capital Accounts. A separate Capital Account shall be established and
maintained by the Partnership for each Partner in the manner described in the
definition of the term "Capital Account" in Article I hereof.
4.4 Loans by Partners. Except as otherwise provided for in this Agreement,
neither the General Partner nor the Limited Partners shall be required to make
loans to the Partnership. Loans may be made, however, with the consent of the
General Partner, by any Partner to the Partnership and such loans shall not be
considered Capital Contributions. To the extent loans are made by any Partner to
the Partnership, they shall be made on terms, as to interest rates and other
finance charges as are comparable to amounts that are charged by unrelated banks
and other financial institutions on comparable loans for the same purpose.
4.5 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 to the Partnership.
4.6 Personal Liability. No Limited Partner shall have any personal
liability whatever, whether to the Partnership, to any of the Partners or to the
creditors of the Partnership, for the debts of the Partnership or any of its
losses except for (i) the aggregate amount of its Capital Contributions actually
made and (ii) as may be provided in the Act. In no event will any Limited
Partner (or any successor in interest of a Limited Partner, as such) be required
to make any capital or other contribution to the Partnership upon or following
dissolution thereof solely by reason that there is a deficit balance in the
Capital Account of such Limited Partner (or successor in interest).
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ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.1 Profits and Losses. After giving effect to the special and curative
allocations set forth in Section 5.2 hereof, Profits and Losses for any fiscal
year shall be allocated to the Partners based on their respective Partners based
on their respective Partnership Percentages.
5.2 Special Allocations. This Agreement shall incorporate the following
provisions and the following allocations shall be made in the following order:
(a) Minimum Gain Chargeback. Except as otherwise provided in Treas.
Reg. (S) 1.704-2(f), notwithstanding any other provision of this Article V, if
there is a net decrease in Partnership Minimum Gain during any fiscal year, each
Partner shall be specially allocated items of Partnership income and gain for
such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal
to such Partner's share of the net decrease in Partnership Minimum Gain,
determined in accordance with Treas. Reg. (S) 1.704-2(g). Allocations pursuant
to the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant thereto. The items to be so
allocated shall be determined in accordance with Treas. Reg. (S)(S)
1.704-2(f)(6) and 1.704-2(j)(2). This Section 5.2(a) is intended to comply with
the minimum gain chargeback requirement in Treas. Reg. (S) 1.704-2(f) and shall
be interpreted consistently therewith.
(b) Partner Minimum Gain Chargeback. Except as otherwise provided in
Treas. Reg. (S) 1.704-2(i)(4), notwithstanding any other provision of this
Article V, if there is a net decrease in Partner Nonrecourse Debt Minimum Gain
attributable to a Partner Nonrecourse Debt during any fiscal year, each Partner
who has a share of the Partner Nonrecourse Debt Minimum Gain attributable to
such Partner Nonrecourse Debt, determined in accordancde with Treas.
Reg. (S) 1.704-2(i)(5), shall be specially allocated items of Partnership income
and gain for such fiscal year (and, if necessary, subsequent fiscal years) in an
amount equal to such Partner's share of the net decrease in Partner Nonrecourse
Debt Minimum Gain, determined in accordance with Treas. Reg. (S) 1.704-2(i)(4).
Allocations pursuant to the previous sentence shall be made in proportion to the
respective amounts required to be allocated to each Partner pursuant thereto.
The items to be so allocated shall be determined in accordance with Treas.
Reg. (S)(S) 1.704-2(i)(4) and 1.704-2(j)(2). This Section 5.2(b) is intended to
comply with the minimum gain chargeback requirement in Treas.
Reg. (S) 1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Limited Partner
unexpectedly receives any adjustments, allocations, or distributions described
in Treas. Reg. (S)(S) 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially
allocated to such Limited Partner in an amount and manner sufficient to
eliminate, to the extent required by the Treasury Regulations, the Adjusted
Capital Account Deficit of such Limited Partner as quickly as possible, provided
that an allocation pursuant to this Section 5.2(c) shall be made only if and to
the extent that such Limited Partner would have an Adjusted Capital Account
Deficit after all other allocations provided for in this Article V have been
tentatively made as if this Section 5.2(c) were not in the Agreement.
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(d) Gross Income Allocation. In the event any Limited Partner has a
deficit Capital Account at the end of any fiscal year which is in excess of the
amount such Limited Partner is obligated to restore pursuant to any provision of
this Agreement or deemed obligated to restore pursuant to the penultimate
sentences of Treas. Reg. (S)(S) 1.704-2(g)(1) and 1.704-2(i)(5), each such
amount of such excess as quickly as possible, provided that an allocation
pursuant to this Section 5.2(d) shall be made only if and to the extent that
such Limited Partner would have a deficit Capital Account after all other
allocations provided for in this Article V have been made as if Section 5.2(c)
hereof and this Section 5.2(d) were not in the Agreement.
(e) Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions
for any fiscal year shall be allocated to the Partner who bears the economic
risk of loss with respect to the Partner Nonrecourse Debt to which such Partner
Nonrecourse Deductions are attributable in accordance with Treas. Reg. (S)
1.704-2(i)(1).
(f) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year
shall be allocated to the Partners in accordance with their Partnership
Percentages.
(g) Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Partnership Asset pursuant to Code (S) 734(b) or Code
(S) 743(b) is required pursuant to Treas. Reg. (S) 1.704-1(b)(2)(iv)(m)(2) or
Treas. Reg. (S) 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining
Capital Accounts as the result of a distribution to a Partner in complete
liquidation of its Partnership Interest, the amount of such adjustment to
Capital Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases such
basis) and such gain or loss shall be specially allocated to the Partners in
accordance with their interests in the Partnership in the event Treas. Reg. (S)
1.704.1(b)(2)(iv)(m)(2) applies, or to the Partner to whom such distribution was
made in the event Treas. Reg. (S) 1.704-1(b)(2)(iv)(m)(4) applies.
(h) Curative Allocations. The allocations set forth above in Sections
5.2(a) through (g) (the "Regulatory Allocations") are intended to comply with
certain requirements of the Treasury Regulations. It is the intent of the
Partners that, to the extent possible, all Regulatory Allocations shall be
offset either with other Regulatory Allocations or with special allocations of
other items of Partnership income, gain, loss or deduction pursuant to this
Section 5.2(h). Therefore, notwithstanding any other provisions of this Article
V (other than the Regulatory Allocations), the General Partner shall make such
offsetting special allocations of Partnership income, gain, loss or deduction in
whatever manner it determines appropriate so that, after such offsetting
allocations are made, each Partner's Capital Account balance is, to the extent
possible, equal to the Capital Account balance such Partner would have had if
the Regulatory Allocations were not part of this Agreement and all Partnership
items were allocated pursuant to Article V without regard to the Regulatory
Allocations.
5.3 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or any other
items allocable to any period, Profits, Losses, and any such other items shall
be determined on a daily,
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monthly or other basis, as determined by the General Partner using any
permissible method under Code (S) 706 and the Treasury Regulations thereunder.
(b) Except as otherwise provided in this Agreement, all items of
Partnership income, gain, loss, deduction and other allocations not otherwise
provided for shall be divided among the Partners in the same proportions as they
share Profits or Losses, as the case may be, for such year.
(c) The Partners are aware of the income tax consequences of the
allocations made by this Article V and hereby agree to be bound by the
provisions of this Article V in reporting their shares of Partnership income and
loss for income tax purposes.
5.4 Tax Allocations: Code (S) 704(c).
(a) In accordance with Code (S) 704(c) and the Treasury
Regulations thereunder, income, gain, loss and deduction with respect to any
property contributed to the capital of the Partnership shall, solely for tax
purposes, be allocated among the Partners so as to take account of any variation
between the adjusted basis of such property to the Partnership for federal
income tax purposes and its initial Gross Asset Value.
(b) In the event the Gross Asset Value of any Partnership asset
is adjusted as required by the definition of "Gross Asset Value" as contained in
this Agreement, subsequent allocations on income, gain, loss and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such asset for federal income tax purposes and its Gross Asset Value in
the same manner as under Code (S) 704(c) and the Regulations thereunder. Any
elections or other decisions relating to such allocations shall be made by the
General Partner.
(c) Allocations piursuant to this Section 5.4 are solely for
purposes of federal, state, and local taxes and shall not affect, or in any way
be taken into account in computing, any Partner's Capital Account or share of
Profits, Losses, other items, or distributions pursuant to any provision of this
Agreement.
5.5 Distributions. The General Partner shall have the authority to cause
the Partnership to distribute cash or other property to the Partners.
Distributions of cash, when made, shall be made among the Partners in such
amounts that would cause the total distributions for such taxable year to be
made in accordance with the Partners' Partnership Percentages.
5.6 Amounts Withheld. All amounts withheld pursuant to the Code or any
provision of any state or local tax law with respect to any payment or
distribution to the Partners shall be treated as distributed to the Partners
pursuant to this Article V for all purposes under this Agreement. The General
Partner shall allocate such amounts among the Partners in a manner that is
consistent with this Article V and applicable law.
ARTICLE VI
MANAGEMENT AND OPERATION
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6.1 Management of Partnership Affairs. Except as is otherwise provided in
this Agreement or by non-waivable provisions of applicable law, the General
Partner shall have full, complete, and exclusive authority to manage and control
the business, affairs, and properties of the Partnership, to make all decisions
regarding the same, and to perform any and all other acts or activities
customary or incident to the management of the Partnership's business. Except as
is otherwise provided for in this Agreement or the Act, the Limited Partners
shall not participate in the control of the business affairs of the Partnership,
transact any business on behalf of the Partnership, or have any power or
authority to bind or obligate the Partnership.
6.2 Reliance on Authority. In its dealings with the Partnership, a third
party may rely on the authority of the General Partner to bind the Partnership
without reviewing the provisions of this Agreement or confirming compliance with
the provisions of this Agreement.
6.3 Compensation to General Partner. Except as expressly provided in this
Article VI, the General Partner shall receive no compensation from the
Partnership for services rendered in its capacity as General Partner of the
Partnership.
6.4 Expenses in Connection with Organization of the Partnership. The
Partnership shall be responsible for all out-of-pocket fees, costs and expenses
actually incurred by the General Partner and its Affiliates in connection with:
(a) the organization of the Partnership; (b) the qualification of the
Partnership to do business in any state in which the General Partner determines
that such qualification is advisable; (c) the legal (including tax advice) and
accounting fees and disbursements of the Partnership; and (d) other
out-of-pocket expenses of similar nature incurred by the General Partner or its
Affiliates in connection with such activities.
6.5 Reimbursement of Expenses. The General Partner shall be entitled to
reimbursement by the Partnership from time-to-time for all out-of-pocket
expenses which are incurred by the General Partner in connection with the
business and affairs of the Partnership including, but not limited to any
organizational fees, legal, accounting, printing, appraisal and similar
reasonable general and administrative overhead expenses incurred by the General
Partner (including, but not limited to, expenses for the compensation of the
management and any employees of the General Partner).
6.6 Nature of Relationship. Except as is otherwise provided in this
Agreement, the General Partner shall perform its duties with respect to the
Partnership in good faith and in the best interests of the Partnership and shall
devote such time and effort to the Partnership business and operations as is
reasonably necessary to manage the affairs of the Partnership prudently. The
General Partner is liable for acts, errors, or omissions in performing its
duties with respect to the Partnership only if such performance is conducted in
bad faith or with gross negligence. THE GENERAL PARTNER IS NOT LIABLE FOR ACTS,
ERRORS, OR OMISSIONS IN PERFORMING ITS DUETIES WITH RESPECT TO THE PARTNERSHIP
FOR ANY OTHER REASON, INCLUDING THE GENERAL PARTNER'S SOLE, PARTIAL, OR
CONCURRENT NEGLIGENCE.
6.7 Indemnification. To the fullest extent permitted by law, and subject to
the procedures in Article 11 of the Act, on request by the Person indemnified
the Partnership shall
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indemnify each General Partner and 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, fees and disbursements of counsel) any of them may incur as
a General Partner in the Partnership or in performing the obligations of the
General Partner with respect to the Partnership, SPECIFICALLY INCLUDING THE
INDEMNIFIED PERSON'S SOLE, PARTIAL, OR CONCURRENT NEGLIGENCE, but excluding any
such items incurred as a result of something for which the General Partner is
liable under Section 6.6, and on request by the Person indemnified the
Partnership shall advance expenses associated with the defense of any related
action.
6.8 Power of Attorney. Each Partner hereby appoints the General Partner as
such Partner's true and lawful attorney-in-fact for the purpose of executing,
swearing to, acknowledging, and delivering all certificates, documents, and
other instruments as may be necessary, appropriate, or advisable in the judgment
of the General Partner in furtherance of the business of the Partnership or
complying with applicable law, including, without limitation, filings of the
type described in Section 2.6. Such power shall be irrevocable and is coupled
with an interest. Upon request by the General Partner, any Partner shall confirm
its grant of such power of attorney or any use thereof by the General Partner or
shall execute, swear to, acknowledge, and deliver any such certificate,
document, or other instrument.
6.9 Other Activities. Neither this Agreement nor the relationship created
hereby shall preclude or limit, in any respect, the right of the Partners to
engage, directly or indirectly, through participation, investment, or otherwise,
in any opportunity or business of any type, including those that may be the same
as or similar to the Partnership or its business, those that compete with the
Partnership, and those in which the Partnership has invested. The Partners shall
not have any obligation to offer to the Partnership or any other Partner the
right to participate in any such activity. Neither the Partnership nor any
Partner shall have any right, by virtue of this Agreement or the relationship
created by this Agreement, with respect to any such activity.
ARTICLE VII
RIGHTS OF OTHER PARTNERS
7.1 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.
7.2 Limitation. No Limited 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.
7.3 Meetings. From time to time, the General Partner, on thirty (30) days
prior notice to each Partner, may call a meeting of the Partnership and apprise
the Partners generally of the business and affairs of the Partnership since the
latest meeting. The notice of each such meeting
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of the Partnership shall specify the location and time of the meeting and state
the business to be transacted at the meeting. The Partners may make
recommendations to or otherwise advise and consult with the General Partner
regarding the business and affairs of the Partnership, but nothing in this
sentence shall be construed to authorize the Limited Partners to engage in any
action prohibited by Section 7.2.
7.4 Limited Liability. No Limited Partner shall be liable for the losses,
debts, liabilities, contracts, or other obligations of the Partnership except to
the extent required by law.
ARTICLE VIII
TAXES
8.1 Tax Returns. The General Partner shall cause to be prepared and filed
all necessary federal and state income tax returns for the Partnership. Each
Partner shall furnish to the General Partner all pertinent information in its
possession relating to Partnership operations that is necessary to enable such
income tax returns to be prepared and filed.
8.2 Tax Elections. The following elections shall be made on the appropriate
returns of the Partnership:
(a) to adopt the calendar year as the Partnership's fiscal year;
(b) to adopt the accrual method of accounting;
(c) to elect to be taxed as a corporation for federal income tax purposed
under the provisions of Subchapter C and other related sections of the Code; and
(d) any other election the General Partner may deem appropriate and in the
best interests of the Partners.
ARTICLE IX
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
9.1 Maintenance of Books. The books of account for the Partnership shall be
maintained by the General Partner in the manner it may designate.
9.2 Bank Accounts. The General Partner shall be responsible for maintaining
the funds of the Partnership at such financial institutions an in the manner as
it may designate.
ARICLE X
WITHDRAWAL AND REMOVAL OF THE GENERAL PARTNER;
ADMISSION OF SUCCESSOR AND ADDITIONAL GENERAL PARTNER
10.1 Voluntary Withdrawal. The General Partner does not have the right to
withdraw from the Partnership as a general partner. The General Partner agrees
that it will not voluntarily withdraw from the Partnership as a general partner
within the meaning of Section 6.02(a) of the
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Act, and any such voluntary withdrawal shall be a violation of this Agreement.
If the General Partner voluntarily withdraws from the Partnership in violation
of this covenant, the withdrawal will not be effective until the 90th day
following notice of the withdrawal to all other Partners or such later date as
the notice may specify.
10.2 Consequence of Wrongful Withdrawal. If a General Partner wrongfully
withdraws from the Partnership, including but not limited to in violation of
Section 10.1, the Partnership may (i) recover damages from the withdrawing
General Partner, including, without limitation, the reasonable cost of obtaining
replacement of the services that the General Partner is obligated to perform,
(ii) pursue any other remedies available under applicable law, and/or (iii)
effect the recovery of damages by offsetting those damages against the amount
otherwise distributable to that General Partner.
10.3 Conversion of Interest. Simultaneously with an event of withdrawal
with respect to the General Partner (as defined under Section 4.02(a) of the
Act), the former General Partner's Partnership Interest as a General Partner
shall be automatically converted into that of a Limited Partner having a right
to receive distributions from the Partnership and an obligation to make Capital
Contributions to the Partnership equal to the right and obligation of the former
General Partner as a General Partner immediately prior to its ceasing to be a
General Partner and the former General Partner shall be automatically admitted
to the Partnership as a new Limited Partner in respect of such Partnership
Interest. Following an event of withdrawal with respect to the General Partner,
the remaining Partners shall, by unanimous vote, select a new General Partner in
accordance with Section 10.5 hereof. The new General Partner shall be admitted
to the Partnership as a General Partner effective immediately prior to the
existing General Partner ceasing to be a General Partner.
10.4 Removal of the General Partner. The General Partner may be removed
from the Partnership by a unanimous vote of all of the Limited Partners if (i)
they, acting reasonable and in good faith, determine that (A) the General
Partner or any of its officers, directors, agents, or employees is guilty of
fraud, dishonesty, unethical business conduct, moral turpitude, or similar acts
of misconduct that are likely to materially adversely affect the Partnership;
(B) the General Partner has failed or refused to perform in all materials
respects the duties called for of it under this Agreement or otherwise to have
breached any material agreement contained herein; or (C) any officer, director,
agent, or employee of the General Partner has become mentally or physically
incapacitated to such extent that the General Partner is or shall be unable to
perform fully its duties under this Agreement for a period of more than eight
weeks; or (ii) the General Partner has Transferred all of its rights as a
General Partner, all of its Partnership Interest as a General Partner, or all of
its management rights as a General Partner.
10.5 New General Partner. Any action for removal is conditioned on a new
General Partner, selected by the unanimous vote of all of the Limited Partners,
being admitted to the Partnership immediately prior to the effective date of
such removal. In connection with such admission, the new General Partner shall
(i) make or agree to make such Capital Contributions as all of the Limited
Partners specify in exchange for a Partnership Interest entitling it to
allocations of Profits and Losses and distributions as required by all of the
Limited Partners and (ii) execute a written instrument pursuant to which it
agrees to be bound by this Agreement, specifies its
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address for notice, and make such representations, warranties, and covenants as
the Limited Partners specify. The new General Partner so selected shall be
admitted to the Partnership as a General Partner on such terms, and the removal
of the old General Partner is effective only immediately subsequent to that
admission.
ARTICLE XI
DISSOLUTION
11.1 Dissolution. The Partnership shall dissolve and commence winding up
upon the first to occur of any of the following unless the business of
Partnership is continued under Section 11.2:
(a) an election to dissolve the Partnership by all of the Partners;
(b) an election to dissolve the Partnership by the General Partner;
(c) an event of withdrawal of the General Partner under Section 4.02
of the Act; or
(d) the entry of a decree of judicial dissolution under Section 8.02
of the Act.
The death, insanity, disability, bankruptcy, dissolution, or other event
occurring with respect to any Limited Partner shall not dissolve the
Partnership.
11.2 Continuation. If an event described in Section 11.1(c) hereof occurs,
the Partnership will not be dissolved and the business of the Partnership may be
continued and no winding up shall be required if (a) there remains at least one
General Partner and the remaining General Partner(s) continue to carry on the
business of the Partnership, which such General Partner(s) are expressly
permitted to do, or (b) within ninety (90) days after the occurrence, all
remaining Partners agree in writing to continue the business of the Partnership
and, to the extent that they desire or if there are no remaining General
Partners, agree to the appointment, effective as of the date of the event
described in Section 11.1(c) hereof, of one or more new General Partners.
11.3 Effect of Dissolution. The dissolution shall be effective on the day
on which the event giving rise to dissolution occurs, but the Partnership shall
not terminate until the assets have been distributed in accordance with Article
XII.
ARTICLE XII
ALLOCATIONS AND DISTRIBUTIONS ON LIQUIDATION
12.1 Liquidation and Termination. Upon dissolution of the Partnership,
unless it is reconstituted and continued as provided in Section 11.2, the
General Partner shall act as liquidator or may appoint one or more other
Personal as liquidator; provided, however, that if the Partnership shall be
dissolved on account of an event of the type described in Section 4.02 of the
Act with respect to General Partner, the liquidator shall, to the extent
permitted by the Act, be
17
one or more Persons selected in writing by the Limited Partners. The liquidator
shall proceed diligently to wind up the affairs of the Partnership and make
final distribution 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 Assets with all of the power and authority
of the General Partner. The steps to be accomplished by the liquidator are as
follows:
(a) As promptly as possible after dissolution and again after final
liquidation, the liquidator shall cause a proper accounting to be made by
recognized firm of certified public accountants of the Partnership's assets,
liabilities, and operations through the last day of the calendar month in which
the dissolution shall occur or the final liquidation shall be completed, as
applicable;
(b) The liquidator shall pay all of the debts and liabilities of the
Partnership (including, without limitation, all expenses incurred in
liquidation) or otherwise make adequate provision therefore (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 Partnership Assets shall be distributed to the
Partners as follows:
(i) the liquidator may sell any or all Partnership Assets, and
any resulting gain or loss from each sale shall be computed and
allocated to the Capital Accounts of the Partners in accordance with
Article V and Section 4.3 hereof:
(ii) with respect to all Partnership Assets that have not been
sold, the fair market value of such property shall be determined and
the Capital Accounts of the Partners shall be adjusted in accordance
with Section 4.3 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 under
Article V and Section 4.3 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 Assets 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 the 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 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
18
allocated to such distributee pursuant to this Section 12.1. Subject to the
provisions of Section 12.2, the distribution of cash and/or property to a
Partner in accordance with the provisions of this Section 12.1 shall constitute
a complete return to the Partner of its Capital Contributions and a complete
distribution to the Partner of its interest in the Partnership and all the
Partnership Assets 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 the same.
12.2 Compliance with Timing Requirements of Regulations. In the event the
Partnership is "liquidated" within the meaning of Treas. Reg. (S)
1.704-1(b)(2)(ii)(g), (i) distributions shall be made pursuant to the Article
XII to the Partners who have positive Capital Accounts in compliance with Treas.
Reg. (S) 1.704-(b)(2)(ii)(b)(2), and (ii) if any General Partner's Capital
Account has a deficit balance (after giving effect to all contributions,
distributions and allocations for all fiscal years, including the fiscal year
during which liquidation occurs), such General Partner shall contribute to the
capital of the Partnership the amount necessary to restore such deficit balance
to zero incompliance with Treas. Reg. (S) 1.704-1(b)(2)(ii)(b)(3). If any
Limited Partner has a deficit balance in its Capital Account (after giving
effect to all contributions, distributions, and allocations for all fiscal
years, including the fiscal year during which such liquidation occurs), such
Limited Partner shall have no obligation to make any contribution to the capital
of the Partnership with respect to such deficit, and such deficit shall not be
considered a debt owed to the Partnership or to any other Person for any purpose
whatsoever.
12.3 Cancellation of Certificate. Upon completion of the distribution of
Partnership Assets as provided herein, the Partnership shall be terminated, and
the General Partner (or, if there shall be no General Partner, the Limited
Partners) shall cause the cancellation of the Certificate of Limited Partnership
and any other filings made pursuant to Section 2.6 and shall take such actions
as may be necessary to terminate the Partnership.
ARTICLE XIII
MISCELLANEOUS
13.1 Amendment of Modification. This Agreement may be amended or modified
from time to time only by a written instrument executed by the General Partner.
13.2 Notices. All notices required or permitted to be given pursuant to
this Agreement shall be in writing and shall be personally delivered, or mailed,
first class postage prepaid, or delivered by a nationally recognized courier
service, charges prepaid, if to the Partnership to the address of the
Partnership's registered office (as reflected on the records of the Secretary of
State of the State of Texas) and if to a Partner, to the appropriate address set
forth in Section 2.8 of this Agreement. Any such notice, when sent in accordance
with the provisions of the preceding sentence, shall be deemed to have been
given and received (a) on the day personally delivered, (b) on the third day
following the date mailed, or (c) twenty-four hours after shipment by such
courier service. A Partner may change its address by giving notice in writing to
all other Partners in the manner set forth in this Section 13.2, stating the new
address.
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13.3 Failure to Pursue Remedies. The failure of any party to seek redress
for a violation, or to insist upon the strict performance, of any provision of
this Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation.
13.4 Section Headings. The headings in this Agreement are inserted for
convenience and identification only and are in no way intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement of
any provision hereof.
13.5 Severability. Every provision of the Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of the Agreement and the illegal or invalid provision shall be
enforced to the maximum extent possible to still be legal and valid.
13.6 Governing Law. This Agreement, and the application or interpretation
thereof, shall be governed exclusively by its terms and by the laws of the State
of Texas.
13.7 Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or constitute a waiver of is right to use any or all other
remedies. Such rights and remedies are given in addition to any other rights the
Partners may have by law, statute, ordinance, or otherwise.
13.8 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if the Partners had all signed the same
document. All counterparts shall be construed together and shall constitute one
instrument.
13.9 Successors and Assigns. Each and every covenant, term, provision, and
agreement herein contained shall be binding upon each of the Partners and their
respective heirs, legal representatives, successors, and assigns and shall inure
to the benefit of each of the Partners. Unless and until properly admitted as a
Partner, no assignee shall have any rights of a Partner beyond those provided by
the Act to assignees or otherwise as expressly provided herein to assignees.
13.10 Construction, Sections, Exhibits, Etc. Whenever the context requires,
the gender of all words used in the Agreement includes the masculine, feminine,
and neuter. Each reference to a "Section" herein is, unless specifically
indicated otherwise, a reference to a section of this Agreement. Each reference
to an "Exhibit" herein is, unless specifically indicated otherwise, a reference
to an exhibit attached hereto, all of which are made a part hereof for all
purposes.
13.11 Further Assurances. In connection with this Agreement and the
transactions contemplated by it, each Partner shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
13.12 Waiver of Certain Rights. Each Partner irrevocably waives any right
it may have to maintain an action for dissolution of the Partnership (other than
pursuant to Article XI) or for
20
partition of the property of the Partnership.
13.13 Attorneys' Fees. If the Partnership or any Partner brings any legal
action to enforce or interpret the provisions of the Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and expenses, in
addition to any other relief to which such party may be entitled.
13.14 Entire Agreement. This Agreement sets forth the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior arrangements and understandings, if any, related hereto.
IN WITNESS WHEREOF, the Partners have executed this Agreement to be
effective as of the Effective Date.
GENERAL PARTNER:
WinCup GP, L.L.C.
a Delaware limited liability company
By: WinCup Holdings, Inc.,
its sole member
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
WinCup LP, L.L.C.
a Delaware limited liability company
By: WinCup Holdings, Inc.,
its sole member
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
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