Exhibit 3.18
ARTICLES OF LIMITED PARTNERSHIP
OF
HUNTSMAN ETHYLENEAMINES LTD
Dated as of January 5, 2001
ARTICLES OF
LIMITED PARTNERSHIP OF
HUNTSMAN ETHYLENEAMINES LTD.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.01 Certain Definitions............................................................................. 1
1.02 Terms Generally................................................................................. 3
ARTICLE II
FORMATION, ETC
2.01 Formation........................................................................................ 3
2.02 Duration......................................................................................... 3
2.03 Name............................................................................................. 3
2.04 Principal Office, Registered Office, and Registered Agent........................................ 3
2.05 Purpose.......................................................................................... 3
ARTICLE III
GENERAL PARTNER
3.01 Designation of General Partner................................................................... 4
3.02 Standard of Performance.......................................................................... 4
3.03 Powers........................................................................................... 4
3.04 Partnership Officers............................................................................. 5
3.05 Selection and Term of Executive Officers......................................................... 6
3.06 Removal of Executive Officers.................................................................... 6
3.07 Duties........................................................................................... 6
3.08 Salaries......................................................................................... 7
3.09 Delegation....................................................................................... 7
3.10 General Authority................................................................................ 7
3.11. Reimbursements and Fees.......................................................................... 7
ARTICLE IV
LIMITED PARTNER
4.01 Designation of Limited Partner................................................................... 7
4.02 No Control or Liability.......................................................................... 8
4.03 Rights and Powers................................................................................ 8
4.04 Dissolution or Bankruptcy of Limited Partner..................................................... 8
ARTICLE V
CONTRIBUTIONS AND CAPITAL PERCENTAGES
5.01 Initial Contributions............................................................................ 8
5.02 Additional Contributions and Loans............................................................... 9
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ARTICLE VI
ALLOCATIONS AND TAX MATTERS
6.01 Allocations.................................................................................... 10
6.02 Accounting..................................................................................... 10
6.03 Records........................................................................................ 11
6.04 Tax Matters.................................................................................... 11
ARTICLE VII
DISTRIBUTIONS
7.01 Distributions of Partnership Cash Flow......................................................... 11
7.02 Distribution of Sale Proceeds.................................................................. 11
7.03 Return of Contributions........................................................................ 12
ARTICLE VIII
TRANSFERS OF PARTNERSHIP INTERESTS
8.01 Assignability.................................................................................. 12
8.02 Admission as a Partner......................................................................... 12
ARTICLE IX
DISSOLUTION
9.01 Events of Dissolution.......................................................................... 12
9.02 Continuation of Business and Reconstitution of Partnership..................................... 13
ARTICLE X
WINDING UP AFFAIRS AND DISTRIBUTION OF ASSETS
10.01 Liquidating Trustee........................................................................... 13
10.02 Distribution of Assets........................................................................ 13
ARTICLE XI
NOTICES
ARTICLE XII
REIMBURSEMENT, INDEMNIFICATION, AND RESPONSIBILITY
ARTICLE XIII
MISCELLANEOUS
13.01 Applicable Law................................................................................ 15
13.02 Successors.................................................................................... 15
13.03 Amendments.................................................................................... 16
13.04 No Third-Party Rights......................................................................... 16
13.05 Entire Agreement.............................................................................. 16
13.06 Waiver of Partition........................................................................... 16
13.07 Severability.................................................................................. 16
13.08 Certificates.................................................................................. 16
13.09 Counterparts.................................................................................. 16
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ARTICLES OF
LIMITED PARTNERSHIP OF
HUNTSMAN ETHYLENEAMINES LTD.
THESE ARTICLES OF LIMITED PARTNERSHIP (this "Agreement") of HUNTSMAN
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ETHYLENEAMINES LTD. (the "Partnership") are made and entered into, effective as
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of the 5/th/ day of January, 2001, by and among HUNTSMAN EA HOLDINGS LLC, a
Delaware limited liability company (the "General Partner"), and HUNTSMAN TEXAS
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HOLDINGS LLC, a Delaware limited liability company (the "Limited Partner").
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W I T N E S E T H:
- - - - - - - - -
WHEREAS, the parties desire to form the Partnership as a limited
partnership for the purposes herein set forth.
NOW, THEREFORE, the undersigned hereby agree to form the Partnership
upon the terms set forth in the following Articles:
ARTICLE I
DEFINITIONS
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1.01. Certain Definitions. As used herein:
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"Act" shall mean the Texas Revised Limited Partnership Act.
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"Affiliate" shall mean, with respect to any specified person, any
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other person that directly or indirectly controls, is under control of, or is
under common control with such specified person.
"Capital Percentages" shall have the meaning set forth in Section
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5.01.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
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"Contribution Loan" shall have the meaning set forth in Section
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5.02.
"Financing Funds" shall mean the funds realized during any fiscal year
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in any Partnership financing or refinancing after being reduced by (i) payment,
repayment, or other retirement of previously existing debt obligations made with
such funds (at the election of the General Partner) and (ii) all costs, fees,
expenses, and other deductions incurred in connection with such financing or
refinancing.
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"General Partner" shall mean Huntsman EA Holdings LLC, a Delaware
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limited liability company, together with any successor or additional general
partner admitted to the Partnership pursuant to Article VIII hereof.
"Limited Partner" shall mean Huntsman Texas Holdings LLC, a Delaware
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limited liability company, or any successor limited partner admitted to the
Partnership pursuant to Article VIII hereof.
"Net Income" and "Net Loss" shall have the meanings given such terms
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in Section 6.01.
"Operating Revenues" shall mean, for any fiscal year, all gross
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receipts of the Partnership other than (i) Financing Funds, (ii) Sale Proceeds,
and (iii) initial capital contributions of Partners.
"Partners" shall mean collectively the General Partner and the Limited
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Partner and, where no distinction is required by the context, singularly the
General Partner or the Limited Partner.
"Partnership Cash Flow" shall mean, for any fiscal year, the excess of
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(x) the sum of the Partnership's (i) Operating Revenues and (ii) Financing Funds
over (y) Required Payments.
"Prime Rate" shall mean the prime (or equivalent) rate announced by
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Deutsche Bank, New York, New York, as the same may change from time to time.
"Required Payments" shall mean all obligations arising during any
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fiscal year for (i) operating expenses and capital expenditures, including
reimbursements payable to the General Partner, (ii) any reserves deemed
necessary or appropriate by the General Partner, and (iii) all payments of any
kind on all Partnership borrowings.
"Sale Proceeds" shall mean, during any fiscal year, the sum of (a) the
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aggregate net proceeds received by the Partnership as the consideration for the
voluntary or involuntary sale of all or any part of its capital assets,
including cash, the fair market value of notes and other debt obligations, and
the fair market value of securities and other property, but reduced by (i)
selling expenses and all other costs, fees, and deductions incurred in
connection with such sale, (ii) payments on or retirement of previously existing
debt obligations made with such funds (at the election of the General Partner),
and (iii) other Required Payments made from such funds, and (b) the net amount
of insurance (including title insurance) proceeds or other compensation and
condemnation awards received by the Partnership, but reduced by (i) funds used
for repairs or restoration and expenses, costs, and fees incurred in connection
therewith, (ii) payments on or retirement of previously existing debt
obligations made with
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funds (at the election of the General Partner), and (iii) other Required
Payments made from such funds.
1.02. Terms Generally. The definitions in Section 1.01 shall apply
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equally to both the singular and plural forms of the terms defined. Whenever
the context may require in this Agreement, any pronoun shall include the
corresponding masculine, feminine, and neuter forms. The term "person" means
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any individual, firm, corporation, partnership, limited liability company,
trust, joint venture, governmental authority, or other entity or association.
The words "include," "includes," and "including" shall be deemed to be used by
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way of example, rather than by way of limitation.
ARTICLE II
FORMATION, ETC.
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2.01. Formation. The Partners hereby enter into and form a limited
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partnership pursuant to the Act. Promptly after the execution of this
Agreement, the General Partner shall execute and file in the appropriate office
in the State of Texas a certificate of limited partnership and/or such other
documents that may be required under the laws of the State of Texas for the
formation of the Partnership under the Act.
2.02. Duration. The Partnership will commence upon the date the
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certificate of limited partnership is filed pursuant to the Act and shall
continue until its business and affairs are wound up following dissolution
pursuant to Section 9.01 hereof.
2.03. Name. The business of the Partnership shall be carried on
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under the name of Huntsman Ethyleneamines Ltd.
2.04. Principal Office, Registered Office, and Registered Agent. The
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initial principal place of business of the Partnership shall be at 3040 Post Oak
Boulevard, Houston, Texas 77056. The Partnership's registered office shall be
at the office of its registered agent at 350 North St. Paul Street, Dallas,
Texas 75201; and the name of its registered agent at such address shall be CT
Corporation System. The General Partner may change the Partnership's registered
agent, registered office, or place of business, at any time, in accordance with
Section 1.06 of the Act where applicable and shall give notice thereof to the
other Partners, but such notice shall not be required for any such change to be
effective.
2.05. Purpose. The Partnership is organized for the object and
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purpose of engaging in any lawful act, activity, or business for which a limited
partnership may be formed under the Act, including without limitation the
following: to manufacture, purchase, market, sell, distribute, broker, and
otherwise deal in and with ethyleneamines of any type or nature and all related
or similar components, materials, and products, directly or indirectly, as a
partner in a partnership or otherwise; to purchase, own, hold, lease, operate,
construct, mortgage, sell, and otherwise deal in and with real and personal
property of any type or nature
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whatsoever; to borrow money and issue evidences of indebtedness in furtherance
of the objects and purposes of the Partnership; to have and maintain one or more
offices; and to do any and all acts and things which may be necessary,
incidental, or convenient to carry on the Partnership's business and activities
as contemplated by this Agreement.
ARTICLE III
GENERAL PARTNER
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3.01. Designation of General Partner. The management of the
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Partnership shall be vested exclusively in the General Partner. The name of the
General Partner is Huntsman EA Holdings LLC, and its business address is 3040
Post Oak Boulevard, Houston, Texas 77056 or such other address as shall be
designated in writing by the General Partner.
3.02. Standard of Performance. The General Partner shall not be
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obligated to devote its full time to the Partnership but shall only be obligated
to devote such time and attention to the conduct of the business of the
Partnership as shall be reasonably required for the conduct of such business;
and the General Partner is expressly authorized to exercise its powers and
discharge its duties hereunder through its officers and employees, any of whom
may also be officers or employees of the Partnership.
The General Partner shall act in good faith in the performance of its
obligations hereunder but shall have no liability or obligation to any Limited
Partner or the Partnership for any decision made or action taken in connection
herewith if made or taken in good faith, irrespective of whether the same may be
reasonably prudent or whether bad judgment was exercised in connection
therewith. In no event shall the General Partner be or become obligated
personally to respond to damages to any Limited Partner pursuant to this
Agreement; the liability of the General Partner being limited to its interest in
the Partnership. Any claim or judgment in favor of a Limited Partner shall be
limited accordingly.
3.03. Powers. Except to the extent otherwise provided herein, the
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General Partner shall have full power and authority to take all action in
connection with the Partnership's business and affairs and to exercise exclusive
management, supervision, and control of the Partnership's properties and
business and shall have full power to do all things necessary or incident
thereto. Without limiting the foregoing, the General Partner, without the
necessity of any further approval of a Limited Partner, shall have the following
powers:
(a) to control and manage the Partnership's assets and business,
and to arrange for collections, disbursements, and other matters
necessary or desirable in connection with the management of the
Partnership's assets and business (such power to include the power
and authority to borrow money in furtherance of the Partnership's
purposes, including financing in which net proceeds are procured);
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(b) to enter into, make, and perform contracts, agreements, and other
undertakings binding the Partnership that may be necessary, appropriate, or
advisable in furtherance of the purposes of the Partnership, and making all
decisions and waivers under the foregoing;
(c) to the extent that the Partnership's financial resources will permit
the General Partner to do so, to see that all indebtedness of the
Partnership, including all indebtedness owing with respect to and secured by
the Partnership's assets, or any part thereof, is paid, and to make such
other payments and perform such other acts as the General Partner may deem
necessary to preserve the interest of the Partnership and carry on its
business;
(d) to pay and discharge all taxes and assessments levied and assessed
against the Partnership's assets or any part thereof for the account of the
Partnership and any other taxes levied or assessed in respect of the business
of the Partnership;
(e) to carry such insurance as the General Partner may deem necessary or
appropriate;
(f) to have such other authority and power as may be reasonably necessary
or appropriate for the operation, maintenance, and preservation of the
Partnership's assets and business; and
(g) to determine the number of employees of the Partnership, if any, the
selection of such employees, and the hours of labor and compensation for the
service of such employees.
Without limiting the other provisions of this Agreement, it is understood and
agreed that the General Partner shall have full power and authority, without the
further consent of any Limited Partner, to finance, sell, lease, assign, pledge,
hypothecate, encumber, or otherwise transfer any or all of the Partnership's
assets or any interest therein.
3.04. Partnership Officers.
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(a) The General Partner may select natural persons who are (or upon
becoming an officer will be) agents or employees of the Partnership to be
designated as officers of the Partnership, with such titles as the General
Partner shall determine.
(b) The officers of the Partnership shall consist of a President
("President") of the Partnership and such other officers of the Partnership as
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determined from time to time by the General Partner, and such persons shall
perform such duties in the management of the Partnership as may be provided in
this Agreement or as may be determined by the General Partner.
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(c) The General Partner may leave unfilled any offices except that of
President. Two or more offices may be held by the same person.
3.05. Selection and Term of Executive Officers.
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(a) The officers as of the date of this Agreement are listed on
Appendix A.
(b) Each officer shall hold office until his or her death,
resignation, or removal. Upon the death, resignation, or removal of an officer,
or the creation of a new office, the General Partner shall have exclusive
authority to fill the vacancy. Officers shall not be required to be employees
of the Partnership. Any officer may also serve as an officer or employee of any
Partner or affiliate of any Partner.
3.06. Removal of Executive Officers. Any officer or agent may be
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removed, at any time, by the General Partner, with or without cause, whenever in
the judgment of the General Partner the best interests of the Partnership would
be served thereby.
3.07. Duties.
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(a) Each officer or employee of the Partnership shall owe to the
Partnership, but not to any Partner, all such duties (fiduciary or otherwise) as
are imposed upon such an officer or employee of a Texas corporation. Without
limitation of the foregoing, each officer and employee in any dealings with a
Partner shall have a duty to act in good faith and to deal fairly; provided,
however, that no officer shall be liable to the Partnership or to any Partner
for his or her good faith reliance on the provisions of this Agreement.
(b) The policies and procedures of the Partnership adopted by the
General Partner may set forth the powers and duties of the officers of the
Partnership to the extent not set forth in or inconsistent with this Agreement.
The officers of the Partnership shall have such powers and duties, except as
modified by the General Partner, as generally pertain to their respective
offices in the case of a Texas corporation, as well as other such powers and
duties as from time to time may be conferred by the General Partner and by this
Agreement. The President and the other officers and employees of the
Partnership shall develop and implement management and other policies and
procedures consistent with this Agreement and the general policies and
procedures established by the General Partner.
(c) Notwithstanding any other provision of this Agreement, no
Partner, representative, officer, employee, or agent of the Partnership shall
have the power or authority, without specific authorization from the General
Partner, to undertake any of the following:
(i) to do any act which contravenes (or otherwise is
inconsistent with) this Agreement or which would make it impracticable
or impossible to carry on the Partnership's business;
(ii) to confess a judgment against the Partnership; or
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(iii) to possess Partnership property other than in the
ordinary conduct of the Partnership's business.
3.08. Salaries. Salaries or other compensation of the officers of
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the Partnership shall be established by the General Partner. All fees and
compensation of the officers and employees of the Partnership with respect to
their services as such officers and employees shall be payable solely by the
Partnership.
3.09. Delegation. The General Partner may delegate temporarily the
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powers and duties of any officer of the Partnership, in case of absence or for
any other reason, to any other officer of the Partnership, and may authorize the
delegation by any officer of the Partnership of any of such officer's powers and
duties to any other officer or employee of the Partnership, subject to the
general supervision of such officer.
3.10. General Authority. Persons dealing with the Partnership are
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entitled to rely conclusively on the power and authority of each of the officers
as set forth in this Agreement. In no event shall any person dealing with any
officer with respect to any business or property of the Partnership be obligated
to ascertain that the terms of this Agreement have been complied with or be
obligated to inquire into the necessity or expedience of any act or action of
the officer; and every contract, agreement, lease, deed, mortgage, security
agreement, promissory note, or other instrument or document executed by the
officer with respect to any business or property of the Partnership shall be
conclusive evidence in favor of any and every person relying thereon or claiming
thereunder that (i) at the time of the execution and/or delivery thereof, this
Agreement was in full force and effect, (ii) the instrument or document was duly
executed in accordance with the terms and provisions of this Agreement and is
binding upon the Partnership, and (iii) the officer was duly authorized and
empowered to execute and deliver any and every such instrument or document for
and on behalf of the Partnership.
3.11. Reimbursements and Fees. The General Partner shall be
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reimbursed by the Partnership for all third-party expenses incurred in
connection with the discharge of its duties hereunder as General Partner, such
as audit, accounting, and legal fees incurred by the General Partner in the
accounting for and the maintenance of the assets of the Partnership; provided
that the General Partner shall be required to pay such expenses only to the
extent the Partnership provides funds therefor.
ARTICLE IV
LIMITED PARTNER
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4.01. Designation of Limited Partner. Huntsman Texas Holdings LLC, a
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Delaware limited liability company, shall be the only Limited Partner. The
address of the Limited Partner is 500 Huntsman Way, Salt Lake City, Utah, 84108
or such other address as shall be designated in writing to the General Partner.
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4.02. No Control or Liability. Except as otherwise provided herein,
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(i) no Limited Partner shall have any control over the management of the
Partnership or any power to transact any Partnership business, and (ii) no
Limited Partner shall be personally liable for all or any part of the debts or
other obligations of the Partnership.
4.03. Rights and Powers.
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(a) No Limited Partner shall have any right or power to withdraw
from the Partnership (or to receive any distribution under Section 6.04 of the
Act in the event of withdrawal) or to cause the liquidation of the Partnership
or the partition of its properties. Except as set forth in Article VII and
Article X hereof, no Limited Partner shall have any right to priority of
distributions from the Partnership over any other Partner.
(b) Each Limited Partner shall have the following special rights
and privileges:
(i) upon written request, access at all reasonable times and
at its own risk and expense to the Partnership's assets with the right
to observe all operations thereon; and
(ii) upon written request (stating the purpose thereof when
required pursuant to the Act), the right to inspect, audit, and copy
(at the expense of the Limited Partner, except as otherwise provided
in the Act) at all reasonable times for any proper purpose records
required to be maintained pursuant to Section 1.07 of the Act and
other information regarding the business affairs and financial
condition of the Partnership as is just and reasonable for the person
to examine and copy.
4.04. Dissolution or Bankruptcy of Limited Partner. The Partnership
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shall not be dissolved by the dissolution or bankruptcy of a Limited Partner,
but no successor of a dissolved or bankrupt Limited Partner may be admitted to
the Partnership as a substituted Limited Partner, except with the written
consent of the General Partner.
ARTICLE V
CONTRIBUTIONS AND CAPITAL PERCENTAGES
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5.01. Initial Contributions.
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(a) As its initial and only required contribution to the capital of
the Partnership, the General Partner shall contribute to the Partnership the sum
of One Hundred Dollars ($100.00) in immediately available funds.
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(b) As its initial and only required contribution to the capital of
the Partnership, the Limited Partner shall contribute to the Partnership the sum
of Nine Thousand Nine Hundred Dollars ($9,900.00) in immediately available
funds.
(c) In consideration for their initial contributions to the capital
of the Partnership, the Partners shall have the respective capital percentages
(the "Capital Percentages") set forth opposite their names below under the
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heading "Capital Percentage":
Capital
General Partner Percentage
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Huntsman EA Holdings LLC 1%
Limited Partner
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Huntsman Texas Holdings LLC 99%
5.02. Additional Contributions and Loans.
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(a) If, at any time, in the judgment of the General Partner or
pursuant to legal obligations of the Partnership, the Partnership requires funds
for the operation of the Partnership's business for any reason in pursuance of
the purposes and powers set forth in Sections 2.05 and 3.03 hereof, the General
Partner may pursue any of the courses set forth in this Section 5.02. In no
case will any Partner be required to make an additional contribution to the
capital of the Partnership unless all of the Partners otherwise agree in
writing.
(b) The General Partner may on behalf of the Partnership attempt to
borrow the necessary funds from third-party lenders at regular commercial rates.
The General Partner shall in no event be required to obtain such funds on a
recourse basis. In connection with any borrowing on behalf of the Partnership,
the General Partner shall have full power and authority to mortgage or otherwise
grant security interests in the Partnership's assets on behalf of and in the
name of the Partnership.
(c) The General Partner may elect under this Section 5.02(c) to loan
such funds to the Partnership or to cause such loan to be made by an affiliate
of the General Partner. Any such loan by the General Partner (or an affiliate
thereof) to the Partnership is herein called a "Contribution Loan." Each
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Contribution Loan shall accrue interest on unpaid principal at a rate per annum
equal to the lowest of (i) the Prime Rate plus one percent (1%), (ii) the
maximum nonusurious rate allowed by applicable law, and (iii) any other rate
acceptable to the General Partner. Each Contribution Loan shall be payable as a
Required Payment to the extent of Partnership funds available, prior to any
distributions to Partners.
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ARTICLE VI
ALLOCATIONS AND TAX MATTERS
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6.01. Allocations.
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(a) "Net Income" and "Net Loss" shall mean the Partnership's income
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and loss, including the Partnership's realized depreciation and amortization
expense, and any amounts of gains or losses realized by the Partnership upon the
sale of all or any portion of Partnership property, after deducting all expenses
incurred in connection with the Partnership's business.
(b) Net Income or Net Loss realized by the Partnership for a fiscal
year shall be allocated to the Partners according to their respective Capital
Percentages.
(c) Any tax credits shall be allocated to the Partners according to
their respective Capital Percentages.
6.02. Accounting.
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(a) The fiscal year of the Partnership shall be the calendar year or
such other period as the General Partner may determine. The net profits or net
losses of the Partnership for each fiscal year shall be determined in accordance
with generally accepted accounting practices consistently applied.
(b) A capital account shall be maintained for each Partner on the
books of the Partnership. A Partner's capital account shall be credited with
the amount of such Partner's capital contributions when made and shall be
credited or charged, as the case may be, with such Partner's distributive share
of the Partnership's net profits or net losses determined under this Article VI.
Distributions to Partners shall be charged to their respective capital accounts.
(c) No Partner shall be entitled to any interest from the
Partnership on its capital account or on its contributions to the capital of the
Partnership; and except as otherwise provided herein, no Partner shall have the
right to demand or to receive the return of all or any part of its capital
account or of its contributions to the capital of the Partnership.
(d) In accordance with Section 704(c) of the Code and applicable
United States Treasury Regulations, income, gain, loss, and deduction with
respect to any property contributed to the Partnership (or any predecessor
thereto) 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 (or any predecessor thereto) for federal income tax purposes and
the fair market value of such property for federal income tax purposes at the
time of contribution. In addition, in the event that any asset of the
Partnership is revalued pursuant to the provisions of Section 704(b) of the Code
and the United States Treasury Regulations thereunder, subsequent allocations of
income, gain, loss, and deduction for tax purposes with respect to such asset
shall
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take account of any variation between the adjusted basis of such asset for
federal income tax purposes and its adjusted value, in the same manner as under
Section 704(c) of the Code and the applicable United States Treasury
Regulations. Any elections or other decisions relating to such allocations shall
be made by the General Partner.
6.03. Records. All books of account and all other records of the
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Partnership shall be kept or made available by the General Partner at the
Partnership's principal place of business in Houston, Texas. The General
Partner shall keep or make available the records required by Section 1.07 of the
Act at the Partnership's place of business. The Partnership shall keep in its
registered office in Texas and make available to the Partners on reasonable
request the street address of the Partnership's place of business in which the
records required under this Section 6.03 are maintained.
6.04. Tax Matters. The General Partner shall cause to be prepared
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and filed all income tax returns of the Partnership and shall furnish copies
thereof to the Limited Partner. The General Partner shall make all elections
under the Code as the General Partner shall deem appropriate and in the best
interest of the Partnership. In connection with any assignment of a Partner's
interest in the Partnership permitted by Article VIII hereof, the General
Partner shall have the right on behalf of the Partnership and at the time and in
the manner provided in United States Treasury Regulations (S) 1.754-l(b) to make
an election to adjust the basis of Partnership property in the manner provided
in Sections 734(b) and 743(b) of the Code. The General Partner shall be the
Partnership's "tax matters partner" as defined in Section 6231(a)(7) of the
Code. In the event state income taxes become applicable, any references to
federal income taxes or to "income taxes" contained herein shall refer to
federal and state income taxes. References to the Code or United States
Treasury Regulations shall be deemed to refer to corresponding provisions which
may become applicable under state income tax statutes and regulations.
ARTICLE VII
DISTRIBUTIONS
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7.01. Distributions of Partnership Cash Flow. Partnership Cash Flow
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may be distributed from time to time, at the election of the General Partner, to
the Partners in the proportions of their respective Capital Percentages. Any
Partner who has received, in respect of a fiscal year of the Partnership, an
aggregate amount of Partnership Cash Flow in excess of the amount to which it
was entitled shall forthwith return such excess to the Partnership. Any amount
so repaid to the Partnership shall be distributed to the other Partners to the
extent that such other Partners did not receive, in respect of such fiscal year,
the full amount of Partnership Cash Flow to which such Partners were entitled.
7.02. Distribution of Sale Proceeds. In the event the Partnership
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realizes or receives distributions of Sale Proceeds arising from a transaction
that does not result in dissolution of the Partnership pursuant to Article IX
hereof, such Sale Proceeds or any part thereof may be distributed, at the
election of the General Partner, to the Partners in the proportions of their
respective Capital Percentages. In the event the Partnership realizes or
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receives distributions of Sale Proceeds arising from a transaction which results
in such dissolution, Sale Proceeds shall be distributed as provided in Article X
hereof. To the extent, if any, the deductions delineated in the definition of
Sale Proceeds conflict with the priority of payment set forth in Article X,
Article X shall control.
7.03. Return of Contributions. No Partner is entitled to any
-----------------------
distribution except as set forth herein or as required by law. Any distribution
of surplus funds pursuant to this Article VII that constitutes a return of all
or part of the contributions of any of the Partners shall be made only if the
same is made in compliance with the Act.
ARTICLE VIII
TRANSFERS OF PARTNERSHIP INTERESTS
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8.01. Assignability. A Partner's interest in the Partnership shall
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not be assignable, directly or indirectly (or by transfer of the control of a
Person that is a Partner), except with the written consent of the General
Partner; provided, however, that a Partner may, without the consent of the
General Partner, assign (directly or indirectly) all or any part of its interest
in the Partnership to an Affiliate of the assigning Partner.
8.02. Admission as a Partner.
----------------------
(a) A person may be admitted to the Partnership as a General
Partner (i) with the consent of the General Partner or (ii) as provided in
Section 9.02(ii). A person may be admitted or substituted as a Limited Partner
only with the written consent of the General Partner.
(b) It is specifically understood and agreed that, if an event
described in Section 4.02(a)(4) or (5) of the Act shall occur, upon the
agreement of (i) the remaining General Partners (if any) and (ii) the General
Partner to whom such an event shall have occurred, the General Partner described
in (ii) above shall be re-admitted as a General Partner. In no event shall this
Section 8.02(b) be deemed to limit the right of the remaining General Partners
to admit any person as a General Partner or a Limited Partner.
ARTICLE IX
DISSOLUTION
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9.01. Events of Dissolution. The Partnership shall be dissolved upon
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the occurrence of any of the following events:
(a) the disposition of (other than by lease) all or substantially
all of the properties and assets of the Partnership;
(b) the acquisition by the General Partner of the interests
hereunder of all limited partners of the Partnership;
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(c) the decision of the General Partner, at its sole discretion, to
dissolve the Partnership;
(d) an entry of a decree of judicial dissolution under Section 8.02
of the Act; or
(e) an event of withdrawal of the General Partner.
9.02. Continuation of Business and Reconstitution of Partnership. On
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dissolution of the Partnership pursuant to Section 9.01(e) above, the
Partnership shall be reconstituted and its business continued without being
wound up if (i) at the time of an event of withdrawal of a General Partner there
remains a General Partner of the Partnership, in which event such remaining
General Partner shall, without further action on the part of the remaining
Partners, continue the Partnership and succeed to all rights theretofore held by
the General Partners, or (ii) at the time of an event of withdrawal of the
General Partner there remains no general partner, but the remaining Partners,
within ninety (90) days after the date of such event of withdrawal, unanimously
elect to continue the Partnership and appoint, effective as of the date of the
event of withdrawal, an additional General Partner who shall succeed as General
Partner hereunder.
ARTICLE X
WINDING UP AFFAIRS AND DISTRIBUTION OF ASSETS
---------------------------------------------
10.01. Liquidating Trustee. Upon dissolution of the Partnership, the
-------------------
General Partner (or its successor in interest) shall act as Liquidating Trustee,
and shall proceed diligently to wind up the affairs of the Partnership and
distribute its assets. In the course of winding up the business and affairs of
the Partnership, all Partnership property shall be sold (unless the Liquidating
Trustee elects, in its sole discretion, to distribute any such assets to the
Partners or any thereof in kind), all resulting gains and losses shall be
credited or charged to the capital accounts of the Partners in accordance with
Section 6.02(b) hereof, and all proceeds from such disposition shall be
distributed pursuant to this Article X.
10.02. Distribution of Assets.
----------------------
(a) In winding up the affairs of the Partnership, the Liquidating
Trustee shall distribute the assets of the Partnership in the following order of
priority:
(i) first, there shall be paid the liabilities of the
Partnership owed to creditors, including Partners who are creditors
other than solely as a result of the application of Section 6.06 of
the Act;
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(ii) second, there shall be paid the liabilities of the
Partnership, if any, owed to Partners and former Partners for
distributions enumerated in Section 8.05 of the Act; and
(iii) any remaining assets of the Partnership shall be
distributed to the Partners in the proportions of their respective
Capital Percentages.
(b) If, after realization by the Partnership of all income and
payment by the Partnership of all liabilities and expenses, the capital account
of any Partner shows a deficit balance, such Partner shall not be required to
contribute to the Partnership the amount of such deficit.
(c) At the direction of the Liquidating Trustee, in its sole
discretion, any Partnership property may be distributed in kind to the Partners.
Any Partnership property which is distributed in kind to one or more Partners in
liquidation of the Partnership shall be valued at its then fair market value
(determined by agreement of all of the Partners). The difference, if any,
between the basis of such property on the books of the Partnership and its fair
market value shall be treated as gain or loss realized by the Partnership in
liquidation and shall be allocated to the Partners in accordance with Article VI
hereof (as if such property had in fact been sold in such manner and the gain or
loss which would thereby have been recognized were in fact recognized). The
excess of the fair market value over the amount of any debt secured by such
property shall be treated as deemed Sale Proceeds for purposes of determining
the Partners' distribution rights pursuant to this Article X.
ARTICLE XI
NOTICES
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Any notice, demand, or communication required or permitted to be given
by any provision of this Agreement shall be deemed to have been sufficiently
given or served for all purposes if delivered by telex, telegram, or facsimile
to the party or to an executive officer of the party to whom the same is
directed, or if sent by registered or certified mail or courier service, postage
and charges prepaid, addressed to the Partner's and/or Partnership's address,
as appropriate, which is set forth below, or such other address for notices as
may hereafter be designated by such Partner or the Partnership by written notice
to the other Partners and the Partnership. Any such notice shall be deemed to
be delivered (i) if sent by mail, two (2) calendar days after being deposited in
the United States mail with postage thereon prepaid, addressed and sent as
aforesaid, (ii) if sent by facsimile, on the date of sending provided such
sending is evidenced by electronic verification of receipt and a hard copy is
sent by regular mail, or (iii) if sent by courier service, two (2) calendar days
after timely delivery to the courier provided the courier guarantees next-day
delivery.
(a) If to the Partnership, to:
Huntsman Ethyleneamines Ltd.
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3040 Post Oak Boulevard
Houston, Texas 77056
(b) If to the General Partner, to:
Huntsman EA Holdings LLC
3040 Post Oak Boulevard
Houston, Texas 77056
(c) If to the Limited Partner, to:
Huntsman Texas Holdings LLC
500 Huntsman Way
Salt Lake City, Utah 84108
ARTICLE XII
REIMBURSEMENT, INDEMNIFICATION, AND RESPONSIBILITY
--------------------------------------------------
The General Partner and the officers of the Partnership shall be and
are hereby indemnified and held harmless by the Partnership to the fullest
extent permitted by law from and against any and all claims, demands,
liabilities, costs, damages, suits, proceedings, and actions, administrative or
investigative, of any nature whatsoever, in which they become involved, as a
party or otherwise, by reason of their management of the business or affairs of
the Partnership. The Partnership may indemnify employees and agents upon
authorization, to the extent authorized, by the General Partner whereupon such
indemnified employees or agents are also included as indemnitees hereby. The
rights of indemnification provided herein shall be cumulative of and in addition
to any and all rights to which the General Partner or any officers, agents, or
employees of the Partnership may otherwise be entitled by contract or as a
matter of law or equity and shall extend to their respective successors and
legal representatives.
ARTICLE XIII
MISCELLANEOUS
-------------
13.01. Applicable Law. THIS AGREEMENT IS ENTERED INTO AND SHALL BE
--------------
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE APPLICABLE INTERNAL LAWS OF THE
STATE OF TEXAS, WITHOUT REFERENCE TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH
STATE.
13.02. Successors. Except as otherwise provided herein, this
----------
Agreement shall be binding upon the Partners, their successors and assigns, any
or all of whom shall execute and deliver all necessary documents required to
carry out the terms of this Agreement.
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13.03. Amendments. Except as otherwise expressly provided herein,
----------
this Agreement may not be modified or amended except with a written instrument
signed by all of the Partners or their respective successors or permitted
assigns.
13.04. No Third-Party Rights. Except as otherwise provided in
---------------------
Article XII in respect of the officers of the Partnership, nothing in this
Agreement shall be deemed to create any right in any person not a party hereto
(other than the successors and assigns of a party hereto), and this instrument
shall not be construed in any respect to be a contract in whole or in part for
the benefit of any third party except as aforesaid.
13.05. Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the Partners relating to the matters contained herein and
supersedes all prior contracts or agreements with respect to such matters,
whether oral or written.
13.06. Waiver of Partition. Each Partner hereby waives any right to
-------------------
partition of any property owned directly or indirectly by the Partnership or
owned directly or indirectly by any partnership or other business entity in
which the Partnership owns an interest.
13.07. Severability. If any provision of this Agreement or the
------------
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
13.08. Certificates. The General Partner shall execute and file, in
------------
the manner and at such times as required by the Act, any writings required to
amend or cancel the certificate of limited partnership of the Partnership, as
appropriate.
13.09. Counterparts. This Agreement may be executed in separate
------------
original counterparts, each of which shall be deemed to be an original but all
of which together shall constitute but one and the same Agreement. Counterparts
and signature pages transmitted by fax shall be valid as originals. All
appendices and attachments to this Agreement are hereby incorporated by
reference herein and made a part hereof as though set forth at length
hereinabove.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
GENERAL PARTNER:
HUNTSMAN EA HOLDINGS LLC,
a Delaware limited liability company,
By:
Name: __________________________________
Title: __________________________________
LIMITED PARTNER:
HUNTSMAN TEXAS HOLDINGS LLC,,
a Delaware limited liability company,
By:
Name: ____________________________________
Title: ____________________________________
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APPENDIX A
OFFICERS
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President: Patrick W. Thomas
Vice President: William A. Kennedy
Vice President: Robert Bere
Vice President and Treasurer: Samuel D. Scruggs
Secretary: Elizabeth A. Whitsett
Assistant Secretary: Robert B. Lence
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