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EXHIBIT 3.23
LIMITED PARTNERSHIP AGREEMENT
OF
POOL COMPANY HOUSTON LTD.
THIS INSTRUMENT, executed as of the 12th day of December, 1996,
evidences the agreement under the terms of which the parties hereto agree to the
creation of Pool Company Houston Ltd., a Texas limited partnership (the
"Partnership") and the terms and conditions under which the Partnership shall be
formed and governed.
Recitals
This Limited Partnership Agreement (the "Agreement") is by and
between Pool Company, a Texas corporation (the "General Partner"), as the
general partner of the Partnership, and Pool Houston #1, Inc., a Texas
corporation (the "Limited Partner").
The General Partner and the Limited Partner (collectively, the
"Partners") desire to form a Texas limited partnership pursuant to the Texas
Revised Limited Partnership Act (the "Act"), pursuant to and in accordance with
the terms and provisions of this Agreement.
Agreement
I. FORMATION; PURPOSE; TERM; DEFINITIONS
1.1 Formation.
The General Partner and the Limited Partner hereby agree to
the formation of the Partnership pursuant to the Act as of the Effective Date.
The rights and liabilities of the
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Partners shall, except as may be hereinafter expressly stated to the contrary,
be as provided for in the Act.
1.2 Name.
The business of the Partnership shall be conducted under the
name "Pool Company Houston Ltd." and/or under such other or additional names as
the General Partner may deem necessary or desirable from time to time.
1.3 Purpose.
The purpose of the Partnership shall be to conduct oil and gas
well servicing, workover and drilling and related activities, as well as such
other activities as may be agreed between the Partners from time to time.
1.4 Registered Office and Registered Agent.
The registered office of the Partnership shall be at the
registered office of the General Partner in the State of Texas, and the
registered agent at such address shall be such person as the General Partner
shall designate. Additional offices or places of business may be established
at such other locations as from time to time may be determined by the General
Partner.
1.5 Term.
The Partnership shall commence on the Effective Date. The
Partnership shall be dissolved on January 1, 2050, unless sooner dissolved in
accordance with the provisions of this Agreement.
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1.6 Definitions.
The following terms shall have the meanings indicated:
"Act" means Article 6132a-1 of the Texas Revised Civil
Statutes, as amended.
"Agreement" means this Limited Partnership Agreement.
"Code" means the Internal Revenue Code of 1986, as amended,
and Regulations promulgated thereunder.
"Effective Date" means the date when a certificate of limited
partnership is filed with the Secretary of State of the State of Texas in
accordance with the Act.
"General Partner" means Pool Company or its successor as
general partner of the Partnership.
"Limited Partner" means Pool Houston #1, Inc., or its
successor, as limited partner of the Partnership.
"Liquidating Trustee" means the person who is designated
pursuant to Section 10.2 hereof to wind up the affairs of the Partnership upon
its dissolution.
"Partners" means the General Partner and the Limited Partner.
"Partnership" means the limited partnership created by this
Agreement.
"Partnership Interest" as to any Partner means all of the
interests of that Partner in the Partnership, including its (i) right to a
distributive share of the profits and losses of the partnership, and (ii) right
to a distributive share of the assets of the Partnership. A Partner's
distributive share of the
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profits and losses (and each class or item of Partnership income, gain, loss,
deduction or credit) is expressed as a percentage, and these percentages may be
adjusted for any transfers of Partnership Interests.
"Percentage Interest" means the respective interest of each
Partner in the Partnership, which interest is initially one percent (1%) for
the General Partner and ninety-nine (99%) for the Limited Partner.
"Person" or "person" means any individual, corporation,
partnership, trust, or other entity.
"Section 754 Election" means any election under Section 754 of
the Code (or corresponding provisions of future law) relating to the adjustment
for tax purposes of the basis of the assets of the Partnership.
II. GENERAL PARTNER
2.1 Duties and Authorities of General Partner.
Subject to any specific limitations contained in this
Agreement or imposed by applicable law, the General Partner shall have the
responsibility and authority to take all actions necessary, or desirable to
accomplish the purposes of the Partnership and shall have exclusive control
over the management of the Partnership, including, without limitation, the
authority to:
(a) negotiate, execute, modify, alter and amend all
contracts and agreements relating to the business of the Partnership;
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(b) arrange financing for and do all things necessary or
advisable in connection with the business of the Partnership;
(c) borrow money on behalf of the Partnership and pledge
as security therefor any property of the Partnership;
(d) sell, lease, or otherwise dispose of any assets of
the Partnership for any Partnership purpose;
(e) hire, transfer, supervise, and discharge employees of
the Partnership (which may be employees of a General Partner or any
Affiliate) and establish the compensation and benefits of such
employees;
(f) enter into any collective bargaining agreements and
settle labor disputes;
(g) collect debts and pay obligations;
(h) establish and maintain books of account and records
and financial and accounting controls;
(i) open bank accounts for the funds of the Partnership;
(j) prepare and submit reports to governmental agencies;
(k) compromise claims and institute or defend lawsuits;
(l) carry out financial agreements;
(m) make income and expense forecasts and business
forecasts and studies;
(n) prepare and submit financial and business reports;
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(o) act as tax matters partner of the Partnership
pursuant to Section 6231 of the Code and request rulings from the
Internal Revenue Service with respect to Partnership tax matters; and
(p) take all acts, do all things, and execute with
binding effect on the Partnership all instruments necessary or
desirable in the opinion of the General Partner to conduct, promote,
and further the business and purpose of the Partnership.
2.2 Reliance.
Persons dealing with the Partnership shall be entitled to rely
conclusively on the authority and power of the General Partner as set forth in
this Agreement. In no event shall any person dealing with the General Partner
or the General Partner's representative with respect to any business or
property of the Partnership be obligated to ascertain that the provisions of
this Agreement have been complied with or be obligated to inquire into the
necessity or expedience of any act or action of the General Partner of the
General Partner's representative. Every contract, agreement, deed, mortgage,
security agreement, promissory note, or other instrument or document executed
by the General Partner or the General Partner's representative with respect to
any business or property of the Partnership shall be conclusive evidence in
favor of any and every person relying on or claiming thereunder that (i) at the
time of the execution and/or delivery thereof, this Agreement was in full force
and effect, (ii) such
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instrument or document was duly executed in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership and all of the
Partners, and (iii) the General Partner or the General Partner's representative
was duly authorized and empowered to execute and deliver any and every
instrument or document for and on behalf of the Partnership.
2.3 Resignation and Removal: Substitute General Partner.
The General Partner may resign, with or without cause, by
giving not less than 90 days' advance written notice of resignation to the
Limited Partner. The General Partner may be removed by the Limited Partner in
the event that the General Partner shall consistently fail to perform its
management duties under the terms of this Agreement or shall, in the conduct of
the management of the business of the Partnership, take any action in bad faith
or which is known or, in the exercise of reasonable care, should be known by
the General Partner to be contrary to the best interests of the Partnership, or
commit gross negligence in the exercise of its duties under the terms of this
Agreement. In addition, the General Partner shall cease to be the General
Partner upon the occurrence of any of the events of withdrawal specified in
Section 4.02 of the Act. A substitute General Partner may be designated by the
Limited Partner.
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III. FEES, COSTS AND EXPENSES
3.1 Management Fees.
For services of the General Partner in managing the
Partnership business, the Partnership shall pay to the General Partner
management fees as follows:
(a) $500,000 with respect to each calendar month; or
(b) such other amounts as may be agreed between the
Partners.
Such fees shall be prorated for any partial calendar month and shall be payable
in arrears at such times as the General Partner may determine.
3.2 Costs and Expenses.
All costs incurred in the conduct of the Partnership's
business shall be incurred and paid by the Partnership. The General partner
shall be entitled to be reimbursed for any and all direct costs and expenses
incurred by it on behalf of the Partnership, including costs incurred in
connection with the organization of the Partnership and in the management and
operation of the Partnership and its business.
IV. LIMITED PARTNER
4.1 No Participation.
The Limited Partner shall not participate in the control of
the business of the Partnership (within the meaning of the Act) or transact any
business for the Partnership other than as specified in this Agreement, nor
shall the Limited Partner have power to sign for or bind the Partnership. The
Limited
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Partner shall not be personally liable for any of the debts or losses of the
Partnership or for the losses of the General Partner, except as otherwise
required by the Act.
V. CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
5.1 General Partner.
Simultaneously with the contribution provided for in Section
5.2, the General Partner will contribute to the Partnership cash in an amount
equal to 1.01% of the contribution by the Limited Partner provided for in
Section 5.2. In the event the amount of the contribution by the Limited Partner
cannot be immediately determined, the amount thereof shall be estimated and the
amount contributed by the General Partner shall be based on such estimate and
subsequently, when the actual amount required to comply with the foregoing is
determined, an appropriate supplemental amount shall be contributed or an
appropriate amount refunded. The initial balance of the capital account of the
General Partner shall be an amount equal to such contribution by the General
Partner and adjusted appropriately in accordance with the foregoing.
5.2 Limited Partner.
On or before December 31, 1996, the Limited Partner will
contribute to the Partnership all assets of the Limited Partner and the
Partnership will assume all of the liabilities and other obligations of the
Limited Partner, excluding, however, the assets, liabilities and obligations,
if any, specified on Exhibit "A" attached hereto, which excluded assets,
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liabilities and obligations shall be retained by the Limited Partner. The
initial balance of the capital account of the Limited Partner shall be an
amount equal to the net assets so contributed.
5.3 No Obligation to Make Further Contributions.
Neither the General Partner nor the Limited Partner shall have
any obligation to make any further contributions to the Partnership other than
as may be specifically required pursuant to the terms of the Act or any other
legal requirement. No Partner shall have the right to demand the return of all
or any part of its capital contributions.
5.4 Negative Capital Accounts.
No Partner other than the General Partner shall be obligated
to restore any negative balance in its capital account during winding up or
otherwise. At such time during winding up as all assets of the Partnership
have been sold or distributed, all liabilities and expenses have been paid, all
income, gains, losses, and deductions have been allocated in accordance with
Article VI, all cash has been distributed, and all adjustments to the capital
accounts have been made, if the General Partner then has a negative balance in
its capital account, it shall contribute to the Partnership an amount of cash
equal to the amount necessary to increase the balance in such capital account
to zero.
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5.5 Return of Contributions.
There is no time agreed upon when the contributions to the
Partnership are to be returned, and there is no guarantee that all or any such
contributions of the Partners will ever be returned to them. The Partners
hereby waive compliance with all provisions of the Act granting a right to a
return of their contributions other than as provided in this Agreement.
5.6 Loans.
The Limited Partner and the General Partner may, but are not
obligated to, extend loans to the Partnership at the request of the General
Partner upon such terms and conditions as may be agreed to between the lending
Partner and the Partnership. The General Partner shall have the full and
exclusive authority in determining whether borrowed funds are required for the
continued operation of the Partnership and negotiating the terms and conditions
of any loans obtained by the Partnership from the General Partner of the
Limited Partner. Nothing contained in this Section shall imply that any
Partner has any liability or obligation whatsoever to loan any funds to the
Partnership at any time.
VI. PROFITS AND LOSSES
6.1 Allocations in General.
Subject to the provisions of the Code pertaining to
allocations, all items of Partnership losses, deductions, income and gain for
each taxable year of the Partnership shall be allocated among the Partners in
the ratios of the Partners'
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respective Percentage Interests; provided, however, that losses shall be
allocated among the Partners who have positive balances in their capital
accounts, in proportion to those balances and to the extent of such balances,
and any additional losses in any year shall be allocated among the Partners who
have positive balances in their capital accounts, in proportion to those
balances and to the extent of such balances, and any additional losses in any
year shall be allocated to the General Partner.
6.2 Transferor-Transferee Allocations.
If a Partnership Interest is transferred during any year, the
income, gains losses, and deductions allocable in respect of that Partnership
Interest shall be prorated between the transferor and the transferee on the
basis of the number of days in the year that each was the holder of that
interest without regard to the results of the Partnership operations (or cash
distributions made) during the period before and after the transfer unless the
transferor and transferee agree to an allocation based on the results as of the
record date of transfer and agree to reimburse the Partnership for the cost of
making and reporting their agreed allocation. Notwithstanding the foregoing,
no allocation shall be made which is not allowed by Section 706(d) of the Code.
6.3 Section 751 Assets.
In the event of any transfer or redemption of a Partnership
Interest, the General Partner shall provide the parties with the amount of
Partnership assets described in
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Section 751 of the Code as of the date of such transfer or redemption. Each of
the parties to any such transfer or redemption agrees to report such
transaction on its own federal income tax returns consistent with such
information supplied by the General Partner.
6.5 Compliance with Code.
The foregoing provisions and the other provisions of this
Agreement are intended to comply with the Code, including but not limited to
Sections 701 through 709 thereof, and shall be interpreted and applied in a
manner consistent therewith. If the General Partner determines that it is
prudent to modify the manner in which the capital accounts are computed or
maintained or the allocations are made in order to comply with the Code. The
General Partner may make such modification.
VII. CASH DISTRIBUTIONS
7.1 Distributable Cash.
Subject to the remaining portion of this Section 7.1 and the
other provisions of this Agreement, all or part of Distributable Cash may be
distributed at the sole discretion of the General Partner among the Partners
according to their Percentage Interests. "Distributable Cash" means, at the
time of determination, all Partnership cash derived from the conduct of the
Partnership's business, other than (i) capital contributions of the Partners,
(ii) financing proceeds, (iii) reserves for working capital, and (iv) other
amounts that the General Partner
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reasonably determines to be necessary for the proper operation of the
Partnership's business.
With regard to Distributable Cash, the General Partner shall
make a determination in accordance with its duty of care and loyalty to the
Partnership as to the need for the funds in the operation of the Partnership
business, considering both current needs for operating capital, prudent
reserves for future operating capital, current investment opportunities, and
prudent reserves for future investment opportunities, all in keeping with the
Partnership purposes. It is the duty of the General Partner, in determining
the amount of Distributable Cash available for the payment necessary in the
operation of its business until the income from further operations is
available, the amount of its debts, the necessity or advisability of paying its
debts, or at least reducing them within the limits of the Partnership's credit,
the preservation of the Partnership's assets, and the character of its surplus
assets. Any contributed property or borrowed funds by the Partnership shall be
considered as needed for Partnership investment purposes, and any cash
produced from the sale of property, including the portion of the sale proceeds
representing capital appreciation, shall be considered as needed reserves for
Partnership investment purposes. All or part of Distributable Cash may, to the
extent deemed unnecessary for Partnership purposes by the General Partner under
the foregoing standard, be distributed in accordance with this Agreement.
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7.2 Distributions of Distributable Cash.
(a) All distributions made prior to winding up shall be
made to the Partners in the ratios of their respective Percentage Interests.
(b) Distributions during winding up shall be made as set
forth in Section 10.2.
VIII. PARTNERS' RESPONSIBILITIES AMONG THEMSELVES
8.1 Liability of General Partner to Limited Partner.
The General Partner, its officers, directors, shareholders,
representatives, employees and agents shall not be liable to the Partnership or
to any other Partner for losses sustained or liabilities incurred as a result
of any error in judgment or mistake of law or fact (including, without
limitations, simple negligence) or for any act done or omitted to be done in
good faith in conducting the Partnership business, unless such error, mistake,
act, or omission was performed or omitted fraudulently or in bad faith or
constituted gross negligence.
8.2 Partnership Indemnity to General Partner.
The Partnership shall protect, defend, indemnify and hold
harmless the General Partner and each officer, director, representative,
shareholder, employee and agent of the General Partner from and against any
loss, expense, damage, or injury suffered or sustained by it by reason of any
acts, omissions, or alleged acts or omissions (even if such acts or omissions
constitute simple negligence) arising out of the activities of
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the General Partner or such persons on behalf of the Partnership or in
furtherance of the interests of the Partnership, including, but not limited to,
any judgment, award, settlement, attorney's fees, and other costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding, or claim, if the acts, omissions, or alleged acts or omissions upon
which such actual or threatened action, proceeding, or claim is based were not
performed or omitted fraudulently or in bad faith or as a result of the gross
negligence of such indemnified party.
8.3 Partners Look Solely to Partnership Assets.
Each Partner shall look solely to the assets of the
Partnership for all distributions with respect to the Partnership, and
notwithstanding the provisions of the Act, the Limited Partner shall not have
any recourse in connection therewith (upon dissolution or otherwise) against
the General Partner (except as provided in Sections 5.3 and 8.1 of this
Agreement) or against the Liquidating Trustee.
IX. BOOKS AND RECORDS
9.1 Method of Accounting.
The Partnership shall keep its books in accordance with the
following:
(a) the General Partner may, at its option, make the
Section 754 Election, and the General Partner shall have the right to
make all other elections required or permitted to be made by the
Partnership for federal income tax purposes.
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(b) the classification, realization, and recognition of
income, deductions, and other items shall be on the accrual method of
accounting for federal income tax and financial reporting purposes, as
the General Partner may determine, and
(c) all items of income and deductions recognized during
a fiscal year shall be allocated as of the end of each fiscal year,
based on the facts and circumstances existing as of the end of that
year and, for financial reporting purposes only, interim reports may
be based on the facts and circumstances existing at the time of these
reports subject to year-end adjustments.
9.2 Fiscal Year.
The fiscal year for the Partnership shall be the calendar
year. The first fiscal year shall begin on the date upon which the Partnership
commences business and end on December 31 of the same calendar year. The last
fiscal year shall commence on the January 1 immediately preceding the date upon
which the Partnership terminates and end on the date of termination.
9.3 Maintenance and Inspection of Books.
The Partnership shall maintain a complete and accurate set of
books, records, and supporting documents. The books of account and all other
financial records of the Partnership shall be kept at the Partnership's
principal place of business and may
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be inspected at any reasonable time by the Limited Partner or its
representatives.
X. DISSOLUTION AND TERMINATION
10.1 Dissolution.
The Partnership shall be dissolved upon the occurrence of any
of the following:
(a) the bankruptcy, insolvency or dissolution of the
General Partner or the occurrence of any other event which would
permit a trustee or receiver to acquire control of the General
Partner's affairs;
(b) the withdrawal from the Partnership of the General
Partner or the removal of the General Partner pursuant to Section 2.3;
(c) the determination to dissolve the Partnership by the
Partners; or
(d) the end of the Partnership term specified in Section
1.5.
The dissolution shall be effective on the day on which the
event occurs causing dissolution, but the Partnership shall not terminate until
the assets have been distributed in accordance with the provisions of this
Agreement.
10.2 Winding Up.
(a) During winding up, the Liquidating, Trustee (which
shall be the General Partner upon a dissolution described in Section
1O.1 (c) or (d) and otherwise shall be a person selected by the
Limited Partner or, if the Limited Partner
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fails to select a Liquidating Trustee, by a court having jurisdiction
over the affairs of the Partnership) shall proceed diligently to wind
up the affairs of the Partnership and distribute its assets. The
Liquidating Trustee shall use reasonable efforts to convert the
Partnership's assets into cash as promptly as possible but in an
orderly and businesslike manner so as not to involve undue sacrifice.
Notwithstanding any other provision of this Agreement, on dissolution
the Liquidating Trustee may sell any property of the Partnership to
one or more of the Partners or to any Affiliate provided that the
purchase price and terms offered by such purchaser are at least as
favorable to the Partnership as those offered by unaffiliated persons,
or the Liquidating Trustee may distribute any property in kind to any
one or more of the Partners. No Partner shall have any right to
demand or receive property other than cash during winding up.
(b) Partnership cash shall be applied or distributed
during winding up in the following order of priority, after first
taking into account all allocations of income, gains, losses and
deductions pursuant to Article VI:
(i) first, in payment of all liabilities of the
Partnership to creditors other than Partners; provided, if any
liability is contingent or uncertain in amount, reserve equal
to the maximum amount for which the Partnership could be
reasonably held liable shall be
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established, and upon the satisfaction or other discharge of that
contingency, the amount of the reserve not required, if any, will be
treated as income to the extent previously treated as a deduction;
(ii) second, in payment of any loans to the
Partnership by the Partners;
(iii) third, to all Partners in proportion to the
balances in their respective capital accounts, to the extent
of such capital accounts; and
(iv) fourth, any remaining cash shall be
distributed among the Partners in proportion to their
respective Percentage Interests.
XI. TRANSFERS OF PARTNERSHIP INTERESTS
11.1 Substituted Limited Partner.
The Limited Partner hereby consents to the admission as a
substituted Limited Partner of any transferee complying with this Article XI.
Upon compliance with this Agreement, the General Partner shall cause the
necessary amendments to be filed as required by law.
11.2 Withholding of Distributions.
From the date of the receipt of any instrument relating to
transfer of a Partnership Interest or at any time the General Partner is in
doubt as to the person entitled to receive distributions in respect of such
Partnership Interest, the General Partner may withhold any such distributions
until the transfer is completed or abandoned or the dispute is resolved.
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11.3 Liability of Transferor.
No transfer of a Partnership Interest shall affect the
obligations, if any, of the transferor to make contributions to the
Partnership.
11.4 Restrictions on Transfers.
No Partnership Interest may be transferred by the Limited
Partner other than in compliance with the conditions and restrictions set forth
in this Section 11.4. A purported transfer of a Partnership Interest by the
Limited Partner shall be valid as to the Partnership and the General Partner,
unless otherwise agreed between the Partners, on the first day of the month
following the month in which the General Partner is reasonably satisfied that
the following conditions (any of which may be waived by the General Partner)
have been met:
(a) the General Partner has consented to the transfer in
writing;
(b) the transferor and transferee have agreed to provide
the Partnership with the information in their possession required to
permit the Partnership to make the basis adjustments required by the
section 754 Election;
(c) the transferee has delivered an instrument
satisfactory to the General Partner pursuant to which the transferee
accepts and adopts the terms and provisions of this Agreement,
including the assumption of any obligations of the transferor to the
Partnership;
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(d) the transferor has agreed to pay a reasonable fee to
reimburse the Partnership for the cost incurred in connection with the
admission of the transferee as a substituted Limited Partner,
including, without limitation, any costs incurred (or to be incurred)
by the Partnership in connection with the basis adjustments and
additional accounting operations required as a result of the Section
754 Election;
(e) the transferee has agreed to pay a reasonable fee to
reimburse the Partnership for any costs incurred in connection with the
transfer (not paid by the transferor); and
(f) the transfer is evidenced by an instrument in writing
signed by the transferor and transferee stating among other things that
the transferor has the right to transfer, and the transferee has the
right to acquire, the transferor's Partnership Interest, and
acknowledging that the transferee is bound by the terms of this
Agreement.
11.5 Transfer of General Partner's Interest.
The General Partner may not transfer all or any portion of its
Partnership Interest without the approval of the Limited Partner.
XII. MISCELLANEOUS
12.1 Tax Returns.
Each Partner hereby agrees to execute (with acknowledgement or
affidavit, if requested by the General
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Partner) promptly all such agreements, certificates, tax returns, and other
documents as may be required of the Partnership or its Partners by the laws of
the United States of America, the State of Texas, or any political subdivision
or agency thereof.
12.2 Notices.
All notices, offers, or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as properly given or made three business days after being mailed
by certified mail, return receipt requested, from within the United States by
first class United States mail, postage prepaid, and addressed to the Partners
at their respective addresses set out on the signature page(s) hereof. Any
Partner may change its address by giving a notice in writing stating its new
address to the other Partners.
12.3 Successors and Assigns.
This Agreement shall be binding upon and, except as otherwise
expressly provided herein, inure to the benefit of the Partners and their
respective successors and assigns, and the Partners covenant and agree that
they and their successors and assigns will execute any and all instruments,
releases, assignments, and consents that may be required of them in accordance
with the provisions of this Agreement.
12.4 Execution.
This Agreement may be executed in counterparts and
separately-executed signature pages may be attached to the body of this
instrument so that the original instrument and all of its
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pages on which signatures appear shall together constitute a single instrument.
12.5 Governing Law.
The Agreement and the rights of the Partners shall be governed
by and interpreted in accordance with the laws of the State of Texas.
12.6 Gender and Number.
Whenever the context requires, the gender of all words used
herein shall include the masculine, feminine, and neuter and the number of all
words shall include the singular and plural.
12.7 Power of Amendment.
(a) Amendments to this Agreement which are required or
contemplated by this Agreement,including, but not limited to,
amendments necessary to reflect the substitution of a Partner
including, without limitation, the purchase of all or part of the
Partnership interest of a Partner by another Partner), or the addition
of additional Partners in accordance with the provisions of this
Agreement, may be made by the General Partner. Notice of any such
amendments and a copy of any writing embodying them shall be provided
to the Limited Partner.
(b) Notwithstanding the foregoing, no amendment shall be
made which would change the Partnership to a general partnership or
increase the liabilities or obligations of the Limited Partner except
upon the agreement of the Partners.
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12.8 Paragraph and Subparagraph Titles.
The paragraph and subparagraph titles and headings used in
this Agreement are solely for convenience and neither modify nor limit the
provisions of this Agreement.
12.9 Partition.
The Partners hereby agree that no Partner shall have the right
while this Agreement remains in effect to have any Partnership asset
partitioned, or to file a complaint, or institute any proceeding at law or in
equity to have any Partnership asset partitioned, and each Partner hereby
waives any such right. It is the intention of the Partners that during the
term of this Agreement, the rights of the Partners as among themselves shall be
governed by the terms of this Agreement.
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Executed as of the date first written above.
POOL COMPANY
Address: By: /s/ X.X. XXXXXXXX
00000 Xxxxxxxx Xxxxxx ---------------------------------
Xxxxxxx, Xxxxx 00000 X.X. Xxxxxxxx
Senior Vice President, Finance
"General Partner"
POOL HOUSTON #1, INC.
Address: By: /s/ X.X. XXXXX
00000 Xxxxxxxx Xxxxxx ---------------------------------
Xxxxxxx, Xxxxx 00000 X.X. Xxxxx,
Group Vice President - U.S.
Operations
"Limited Partner"
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AMENDMENT NO. 1
TO
LIMITED PARTNERSHIP AGREEMENT
AND TO ASSIGNMENT OF ASSETS AND ASSUMPTION OF LIABILITIES
---------------------------------------------
POOL COMPANY HOUSTON LTD.
THIS AGREEMENT is executed as of the 6th day of March,
1997 by and between Pool Company ("Pool"), a Texas corporation, Pool Houston
#1, Inc. ("PH#1"), a Texas corporation, and PCNV, Inc. ("PCNV"), a Nevada
corporation.
WHEREAS, that certain Limited Partnership Agreement (the
"Partnership Agreement") dated December 12, 1996 was entered into by and
between Pool, as general partner, and PH#1, as limited partner, relating to the
formation and governance of Pool Company Houston Ltd., a Texas limited
partnership (the "Partnership"); and
WHEREAS, pursuant to the Partnership Agreement a related
Assignment of Assets and Assumption of Liabilities dated December 31, 1996 (the
"Asset Assignment") was executed by and between PH#1 and the Partnership; and
WHEREAS, the Partnership Agreement and the Asset Assignment
each attached and incorporated an Exhibit "A" identifying certain items that
were to be excluded from the assets and liabilities that were to assigned to
and assumed by the Partnership; and
WHEREAS, the parties have determined that the Exhibit "A"
attached to and incorporated in the Partnership Agreement and
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the Asset Assignment erroneously failed to contain certain deferred income tax
assets or liabilities that were to be retained by PH#1 and not assigned to the
Partnership; and
WHEREAS, pursuant to an Assignment and Agreement dated as of
January 1, 1997 (the "Assignment of Interest"), PH#1 assigned and transferred
all of its ninety-nine percent (99%) limited partnership interest in the
Partnership to PCNV; and
WHEREAS, pursuant to the Assignment of Interest, PCNV accepted
and adopted the terms and provisions of the Partnership Agreement assumed all
obligations of PH#1 to the Partnership and acknowledged that it was bound by
the terms of the Partnership Agreement; and
WHEREAS, the parties deem it appropriate that the Partnership
Agreement and the Asset Assignment be amended to correct Exhibit "A" attached
thereto; and
WHEREAS, pursuant to the Assignment of Interest, the parties
deem it appropriate that the Partnership Agreement be further amended by
substituting PCNV as the "Limited Partner" thereunder, replacing PH#1;
NOW THEREFORE, the parties hereby agree as follows:
1. The Partnership Agreement and the Asset Assignment are each hereby
amended, effective as of their respective inception dates, by deleting
the Exhibit "A" attached thereto and substituting therefor the
corrected Exhibit "A" attached to this agreement.
2
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2. The Partnership Agreement is hereby amended, effective as of January
1, 1997, by substituting PCNV as the "Limited Partner" thereunder,
replacing PH#1.
Executed as of the date first stated above.
POOL XXXXXXX, #0 INC. POOL COMPANY
By: /s/ X.X. XXXXXXXX By: /s/ X.X. XXXXXXXXXX
------------------------------ --------------------------------
X.X. Xxxxxxxx, X.X. Xxxxxxxxxx, President
Senior Vice President, Finance
PCNV, INC.
By: /s/ G.G. ARMS
------------------------------
G.G. Arms,
Vice President & General
Counsel
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EXHIBIT "A"
(Corrected)
ASSETS, LIABILITIES AND OBLIGATIONS TO BE
RETAINED BY POOL HOUSTON #1, INC.
All federal and state deferred income tax assets and liabilities, the aggregate
net amount of which as of 11/30/96 was an asset of $4,879,675.
