Exhibit 3.16
AGREEMENT OF LIMITED PARTNERSHIP
OF
ISPAT INLAND, L.P.
AGREEMENT OF LIMITED PARTNERSHIP, dated as of July 10, 1998, among
0000-0000 Xxxxxx Inc. as General Partner, and Ispat Sidbec Inc. as Limited
Partner.
WITNESSETH:
WHEREAS, the General Partner and the Limited Partner desire to form a
limited partnership pursuant to the Delaware Act (defined below);
AND WHEREAS the General Partner and the Limited Partner wish to enter into
this Agreement to provide for the conduct of the business and affairs of the
Partnership and to govern their relationship as partners in the Partnership;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used herein without definition
have the following meanings:
DEFINITIONS
"Agreement" means this Agreement of Limited Partnership, as amended from
time to time.
"Board" means the Board of Directors of the Partnership.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
"Capital Contribution" means, with respect to any Partner, the amount of
cash or agreed value of property contributed by such Partner to the Partnership.
"Delaware Act" means the Delaware Revised Uniform Limited Partnership Act,
Del. Code Xxx., tit. 6, Section 17-101, et seq., as amended from time to time.
"General Partner" means 0000-0000 Xxxxxx Inc., a special purpose company
incorporated under the laws of Quebec, or any other party who may become the
General Partner of the Partnership in place of or in substitution for 0000-0000
Xxxxxx Inc. from time to time.
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"General Partner's Contributed Capital" means the aggregate amount of
Capital Contributions made by the General Partner to the Partnership from time
to time, including the Capital Contribution required to be made by the General
Partner as set forth on Schedule I hereto.
"General Partner's Share" means the portion, stated as a percentage, that
the General Partner's Contributed Capital represents of the Total Contributed
Capital.
"Limited Partner" means Ispat Sidbec Inc.
"Limited Partner's Contributed Capital" means the aggregate amount of
Capital Contributions made by the Limited Partner to the Partnership from time
to time, including the Capital Contribution required to be made by the Limited
Partner as set forth on Schedule I hereto.
"Limited Partner's Share" means the portion, stated as a percentage, that
the Limited Partner's Contributed Capital represents of the Total Contributed
Capital.
"Partner" means the General Partner and the Limited Partner.
"Partnership" means Ispat Inland, L.P., as such partnership may from time
to time be constituted.
"Person" means any individual, partnership, corporation, trust or other
entity.
"Tax Return" means any report, return, document, schedules, declaration or
other information or filing required to be supplied to any taxing authority or
jurisdiction with respect to taxes including, without limitation, any amendments
thereto.
"Total Contributed Capital" means, on any date, the sum of the General
Partners' Contributed Capital and the Limited Partner's Contributed Capital.
ARTICLE II
GENERAL PROVISIONS
SECTION 2.1 Partnership Name. The name of the Partnership is Ispat Inland,
L.P.
SECTION 2.2 Office; Registered Agent. The Partnership shall maintain a
registered office in Delaware at Corporation Trust Center, 0000 Xxxxxx Xxxxxx in
the City of Wilmington, County of New Castle. The name of the Partnership's
registered agent at such address is The Corporation Trust Company. The business
address of the Partnership shall be at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as the General Partner shall determine.
SECTION 2.3 Purposes of the Partnership. The purpose of the Partnership is
to (a) receive funds contributed to the Partnership by each Partner, (b) borrow
funds, and instruct banks to issue, and become liable to such banks for
reimbursement of payments by such banks under,
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letters of credit, (c) contribute funds to other entities in exchange for, or in
connection with, securities of such entities, (d) make loans to other entities,
and (e) in order to secure the Partnership's obligations and liabilities for,
and in connection with, the repayment of borrowed funds and reimbursement of
payments under letters of credit (including, without limitation, interest, fees
and other amounts), grant security interests and liens in and to any and all of
its assets and properties.
SECTION 2.4 Liability of the Limited Partner Generally. Except as
otherwise provided in this Agreement or the Delaware Act, no Limited Partner (or
former Limited Partner) shall be obligated to make any contribution of capital
to the Partnership or have any liability for the debts and obligations of the
Partnership.
SECTION 2.5 Fiscal Year. The fiscal year of the Partnership for financial
statement and tax purposes shall end on December 31st.
ARTICLE III
MANAGEMENT AND OPERATIONS OF THE PARTNERSHIP
SECTION 3.1 Management Generally and the Board of Directors.
(a) The Limited Partner shall not have any right to take part in
the management or control of the Partnership or its business and affairs
or to act for or bind the Partnership in any way. Notwithstanding the
foregoing, the Limited Partner shall have all of the rights and powers
specifically set forth in this Agreement.
(b) The Partnership shall have a Board of Directors, to which the
General Partner hereby delegates, within the meaning of Section 17-403(c)
of the Act, the specific duties associated with the management of the
Partnership that are so stated to be delegated, including, without
limitation, the right to select, appoint, and remove a Manager pursuant to
Section 3.1(e) hereof. The General Partner likewise delegates to such
Manager the General Partner's duty to manage the affairs and business of
the Partnership to the extent of the duties assigned to such Manager
pursuant to the terms of this Agreement. No such delegation shall cause
the General Partner to cease to be a general partner of the Partnership.
Except as otherwise provided herein, the General Partner shall have no
duty to supervise the activities or proceedings of the Board of Directors
or the Manager, and each Partner hereby agrees that the General Partner's
duties and liabilities (including fiduciary liabilities) to the
Partnership and the Partners have been restricted.
(c) The Board of Directors shall consist of three Directors;
provided, however, that the Partnership shall at all times have at least
one Director (an "Independent Director") who is not, nor at any time has
been, (a) an officer or employee of any Partner or any affiliate of any
Partner, (b) a person related to any officer or employee of any Partner or
any affiliate of any Partner, (c) a holder (directly or indirectly) of
more than 10% of any voting securities or interests of any Partner or any
affiliate of any Partner, or (d) a person related to a holder (directly or
indirectly) of more than 10% of any voting securities or interests of any
Partner or any affiliate of any Partner. In the event of the
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death, incapacity, resignation or removal of any Independent Director, the
Board of Directors shall promptly appoint an Independent Director for each
Independent Director whose death, incapacity, resignation or removal
caused the related vacancy on the Board of Directors; provided, however,
that the Board of Directors shall not vote on or approve any matter unless
and until at least one Independent Director has been duly appointed to
serve on the Board of Directors. The General Partner shall designate two
Directors, and the Limited Partner shall designate one Director. The
initial Directors of the Partnership shall be as set forth on Exhibit A
hereto.
(d) A majority of the Directors then in office shall constitute a
quorum for transaction of business at any Board meeting; provided,
however, that all of the Directors then in office shall constitute a
quorum for any transaction referred to in clauses (i) through (vii) below
or any dissolution pursuant to Section 6.2(c). The Board shall take action
pursuant to resolutions adopted by the affirmative vote of a majority of
the Directors participating in a Board meeting where a quorum is present;
provided, however, that unanimous approval of the Board of Directors and
approval of the General Partner and the Limited Partner is required for
the Partnership to engage in any of the following transactions:
(i) merger or consolidation of the Partnership with or into
another business entity;
(ii) sale of all or substantially all of the assets of the
Partnership;
(iii) reorganization;
(iv) spin-off;
(v) split-up;
(vi) recapitalization; and
(vii) the Partnership's (A) making an assignment for the
benefit of creditors; (B) application for, seeking, consent to or
acquiescing in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial
part of its property; (C) institution of any proceeding seeking to
have entered against it an order for relief under the United States
Bankruptcy Code, as amended, supplemented or modified from time to
time, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or failing to file an answer or
other pleading denying the material allegations of any such
proceeding filed against it; or (D) admitting in writing its
inability to pay its debts generally as they become due.
(e) The Board shall select the Manager of the Partnership. The
Manager may be removed at any time by an affirmative vote of a majority of
the Directors on the Board. The Manager shall, subject to the control of
the Board, have general supervision of the business of the Partnership.
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(f) Notwithstanding anything to the contrary in this Section 3.1,
the Limited Partner shall at all times be and remain a Limited Partner and
shall not take any action that could be construed under the Delaware Act
or by a third party as management or control of the Partnership which
would result in such Limited Partner losing its status as such.
SECTION 3.2 Books and Records; Accounting Method. The General Partner
shall keep or cause to be kept at the address of the General Partner (or at such
other place as the General Partner shall advise the other Partners in writing)
full and accurate books and records of the Partnership. The books and records
shall be available, upon 10 Business Days' notice to the General Painter, for
inspection and copying at reasonable times during business hours by each Limited
Partner or its duly authorized agents or representatives for any purpose
reasonably related to such Limited Partner's interest in the Partnership.
SECTION 3.3 Tax Returns. The General Partner shall cause to be prepared
and timely filed all Tax Returns required to be filed for the Partnership. The
General Partner may, in its discretion, make, or refrain from making, any income
or other tax elections for the Partnership that it deems necessary or advisable,
provided, however, that the General Partner shall cause the Partnership to elect
to be treated as an association taxable as a corporation for United States
federal income tax purposes.
ARTICLE IV
FEES AND EXPENSES, ALLOCATION OF PROFITS AND LOSSES
OF THE PARTNERSHIP AND DISTRIBUTIONS
SECTION 4.1 Fees and Expenses. The Partnership shall pay all fees and
expenses payable in connection with the issue of Partnership interests.
SECTION 4.2 Distributions. Cash and other distributions shall be made to
the Partners at such time and in such manner as may be determined from time to
time by the Board. All such distributions shall be allocated and distributed
between the General Partner, on the one hand, and the Limited Partner, on the
other hand, in proportion to the General Partner's Share and the Limited
Partner's Share, as the case may be, at the time of such distribution.
SECTION 4.3 Allocation of Profits and Losses. The income or loss of the
Partnership for purposes of the Income Tax Act (Canada), the Taxation Act
(Quebec) and any other applicable income tax legislation of a province of Canada
for each fiscal year (respectively, "Taxable Income" and Taxable Loss") shall be
allocated among the Partners as follows:
(a) the General Partner shall be allocated the amount obtained
when the Taxable Income or Taxable Loss of the Partnership for the fiscal
year is multiplied by the General Partner's Share on the last day of such
fiscal year; and
(b) the balance of the Taxable Income or Taxable Loss of the
Partnership for that fiscal year shall be allocated to the Limited
Partner.
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ARTICLE V
REPORTS TO THE LIMITED PARTNER
SECTION 5.1 Reports. The books of account and records of the Partnership
shall be maintained in accordance with generally accepted accounting principles
as applied in the United States but need not be audited by independent public
accountants.
ARTICLE VI
DURATION AND DISSOLUTION OF THE PARTNERSHIP
SECTION 6.1 Duration. The Partnership shall continue in existence until
July 10, 2048 unless sooner dissolved pursuant to Section 6.2; provided,
however, that the Board may, in its discretion, extend the initial term of the
Partnership for up to five additional one-year periods.
SECTION 6.2 Dissolution. Subject to the Delaware Act, the Partnership
shall be dissolved and its affairs shall be wound up upon the earliest of:
(a) the expiration of the term of the Partnership provided in
Section 6.1;
(b) written consent of the General Partner and the Limited
Partner;
(c) a unanimous decision by the Board, in its discretion, to
dissolve the Partnership because it has determined in good faith that such
action is necessary or desirable in order for the Partnership not to be in
material violation of any material law or regulation; and
(d) an event of withdrawal of the General Partner (within the
meaning of the Delaware Act).
SECTION 6.3 Liquidation of Partnership. Upon dissolution, the
Partnership's business shall be liquidated in an orderly manner. The General
Partner shall be the liquidator to wind up the affairs of the Partnership
pursuant to this Agreement. If there shall be no General Partner, the Board may
approve one or more Persons to act as the liquidator in carrying out such
liquidation. In performing its duties, the liquidator is authorized to sell,
distribute, exchange or otherwise dispose of the assets of the Partnership in
any reasonable manner that the liquidator shall determine to be in the best
interest of the Partners.
SECTION 6.4 Distribution Upon Dissolution of the Partnership. Upon
dissolution of the Partnership, the liquidator winding up the affairs of the
Partnership shall determine in its discretion which assets of the Partnership
shall be sold and which assets of the Partnership shall be retained for
distribution in kind to the Partners. Subject to the Delaware Act, after all
liabilities of the Partnership have been satisfied or duly provided for, the
remaining assets of the Partnership shall be distributed to the Partners in
accordance with Section 4.2.
SECTION 6.5 Withdrawal of a Partner. Except as otherwise provided herein,
a Limited Partner may not withdraw from the Partnership prior to its
termination. Except as expressly
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provided in this Agreement or under the Delaware Act, no event affecting a
Limited Partner (including bankruptcy or insolvency) shall affect its
obligations under this Agreement or affect the Partnership. Except as otherwise
provided herein, the General Partner may not withdraw from the Partnership prior
to its dissolution and the liquidation of its assets.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Amendments to the Agreement. Except as otherwise provided in
this Section 7.1, this Agreement may be amended by the General Partner with the
approval of the Limited Partner. The General Partner may, without the approval
of the Limited Partner, cure any ambiguity or correct or supplement any
provision contained in this Agreement which may be incomplete or inconsistent
with any other provision contained herein, provided that such amendment or
supplement shall not adversely affect the Limited Partner.
SECTION 7.2 Successors; Counterpart. This Agreement (i) shall be binding
as to the executors, administrators, estates, heirs and legal successors of the
Partners and (ii) may be executed in several counterparts with the same effect
as if the parties executing the several counterparts had all executed one
counterpart.
SECTION 7.3 Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware. In
particular, it shall be construed to the maximum extent possible to comply with
all of the terms and conditions of the Delaware Act. If, nevertheless, it shall
be determined by a court of competent jurisdiction that any provision or wording
of this Agreement shall be invalid or unenforceable under said Act or other
applicable law, such invalidity or unenforceability shall not invalidate the
entire Agreement. In that case, this Agreement shall be construed so as to limit
any term or provision so as to make it enforceable or valid within the
requirements of applicable law, and, if such term or provision cannot be so
limited, this Agreement shall be construed to omit such invalid or unenforceable
provisions.
SECTION 7.4 Filings. The General Partner shall promptly prepare, following
the execution and delivery of this Agreement, any documents required to be filed
and recorded, or, in the General Partner's view, appropriate for filing and
recording, under the Delaware Act, and the General Partner shall promptly cause
each such document to be filed and recorded in accordance with said Act and, to
the extent required by local law, to be filed and recorded or notice thereof to
be published in the appropriate place in each State in which the Partnership may
hereafter establish a place of business. The General Partner shall also promptly
cause to be filed, recorded and published such statements of fictitious business
name and other notices, certificates, statements or other instruments required
by any provision of any applicable law of the United States or any State or
other jurisdiction which governs the conduct of its business from time to time.
SECTION 7.5 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including telex, telecopier or similar
writing) and shall be given to such party at its address or telex or telecopy
number set forth in a schedule filed with the records
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of the Partnership or such other address or telex or telecopy number as such
party may hereafter specify for the purpose by notice to the General Partner (if
such party is a Limited Partner) or to the Limited Partner (if such party is the
General Partner); provided, however, that any communication given (x) by mail
shall be forwarded first class postage prepaid, with return requested, and (y)
by telecopier or telex shall be followed by overnight delivery of the same
communication, using express mail or special courier service. Each such notice,
request or other communication shall be effective when received by the
addressee.
SECTION 7.6 Certificated Partnership Interests. The Partnership interests
held by the General Partner and the Limited Partner shall be evidenced by
certificates and shall be securities governed by article 8 of the Uniform
Commercial Code as in effect in the State of Delaware and in each other
applicable jurisdiction of the United States of America.
In WITNESS WHEREOF, the undersigned have hereto caused their respective
officers to execute this Agreement as of the day and year first above written.
0000-0000 XXXXXX INC.
as General Partner
By: /s/ Xxxxxxx XxXxxxx
---------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Secretary
ISPAT SIDBEC INC.
as Limited Partner
By: /s/ Xxxxxxx XxXxxxx
---------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Secretary
SCHEDULE I
PARTNER CAPITAL CONTRIBUTION
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Limited Partner:
Ispat Sidbec Inc. $89,100,000.00
General Partner:
0000-0000 Xxxxxx Inc. $ 900,000.00
EXHIBIT A
DIRECTORS OF THE PARTNERSHIP
Designated by the Limited Partner: Thekkamadom X. Xxxxxxxxx
Designated by the General Partner: Xxxxxxx X. Xxxxxx
Xxxxxxxxx Xxxxxx (Independent)
