<PAGE>
Exhibit 3.23d
AGREEMENT OF LIMITED PARTNERSHIP
OF
INGRAM
ENTERPRISES, L.P.
<PAGE>
AGREEMENT OF LIMITED PARTNERSHIP
OF
INGRAM ENTERPRISES, L.P.
TABLE OF CONTENTS
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Page
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ARTICLE
1................................................................
1
1.1
Definitions........................................................
1
1.2
References.........................................................
7
ARTICLE
2................................................................
7
2.1 Formation of
the Limited Partnership............................... 7
2.2 Partnership
Name...................................................
7
2.3
Purpose............................................................
8
2.4 Principal
and Registered Office....................................
8
2.5 Term of the
Partnership............................................
8
ARTICLE
3................................................................
8
3.1 Initial
Capital Contribution of General Partner....................
8
3.2 Initial
Capital Contribution of Limited Partners...................
8
3.3
Authorization of Partner Loans.....................................
8
3.4 Additional
Capital Contributions...................................
9
ARTICLE
4................................................................
9
4.1 Distribution
of Net Cash Flow...................................... 9
4.2 Distribution
of Net Proceeds of a Capital Transaction.............. 9
4.3 Return of
and Interest on Capital Contributions....................
9
4.4
Payments...........................................................
9
4.5 In-Kind
Distributions..............................................
9
4.6 Allocations
of Net Profit and Net Loss.............................
9
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4.7 Partnership
Minimum Gain Chargeback................................
11
4.8 Minimum Gain
Chargeback for Partner Nonrecourse Debt............... 11
4.9 Qualified
Income Offset............................................
11
4.10 Limit on Loss
Allocations.......................................... 11
4.11 Net Loss from
Partner Nonrecourse Debt............................. 12
4.12 Nonrecourse
Deductions.............................................
12
4.13 Code Section 754
Adjustments....................................... 12
4.14 Reversal of
Mandatory Allocations..................................
12
4.15 Compliance with
Code............................................... 12
4.16 Tax Allocations
-- Code Section 704(c)............................. 12
4.17 Allocation on
Transfer............................................. 13
4.18 Minimum Interest
of General Partner................................ 13
ARTICLE
5................................................................
13
5.1 Capital
Accounts...................................................
13
5.2 Adjustment
for In-Kind Distributions...............................
13
5.3 Property
Revaluation...............................................
14
5.4
Interpretation.....................................................
14
5.5 Obligation
to Repay or Restore.....................................
14
5.6 Tax
Elections......................................................
15
ARTICLE
6................................................................
15
6.1 Operating
Expenses and Reimbursements..............................
15
ARTICLE
7................................................................
15
7.1 Admission of
Additional Partners................................... 15
7.2 Assignment
or Transfer of Partnership Interests....................
15
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ARTICLE
8................................................................
16
8.1 Powers of
General Partner..........................................
16
8.2 Authority as
to Third Persons...................................... 19
8.3 Compensation
and Expenses of the General Partner................... 19
8.4 Covenants of
the General Partner................................... 19
8.5 Limitations
on Authority...........................................
19
8.6 No
Withdrawal From Partnership.....................................
19
8.7
Officers...........................................................
19
ARTICLE
9................................................................
20
9.1
Dissolution........................................................
20
9.2
Continuation.......................................................
20
9.3 Events
Affecting a Limited Partner.................................
20
9.4 Liquidation
Procedures.............................................
20
9.5
Termination........................................................
21
9.6 No Petition
for Dissolution........................................
21
9.7 Compliance
with Timing Requirements of Treasury Regulations........
22
ARTICLE
10...............................................................
22
10.1 Financial and Tax
Accounting and Reports........................... 22
10.2
Valuation..........................................................
22
10.3 Supervision;
Inspection of Books................................... 22
10.4 Consent in Lieu
of Meeting......................................... 22
10.5
Withholding........................................................
22
ARTICLE
11...............................................................
23
11.1 Execution and
Filing of Documents.................................. 23
11.2 Other Instruments
and Acts......................................... 23
11.3 Binding
Agreement..................................................
23
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11.4 Governing
Law......................................................
23
11.5
Notices............................................................
23
11.6 Power of
Attorney..................................................
23
11.7
Amendment..........................................................
24
11.8 Entire
Agreement...................................................
25
11.9 Titles;
Subtitles..................................................
25
11.10
Exculpation........................................................
25
11.11 Indemnification of the General
Partner............................. 25
11.12 Limitation of Liability of the Limited
Partners.................... 25
11.13
Ambiguities........................................................
25
11.14 No Right to
Partition..............................................
26
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<PAGE>
AGREEMENT OF LIMITED PARTNERSHIP
OF
INGRAM ENTERPRISES, L.P.
THIS
AGREEMENT OF LIMITED PARTNERSHIP, made and entered into as of this
___
day of April, 1999, by and between Ingram Enterprises Management,
Inc., a Texas
corporation (the "General Partner") and Atlas Investments Inc., a
Nevada
corporation (the "Limited Partner").
NOW,
THEREFORE, the General Partner and the Limited Partner hereby agree
to
the terms and conditions of this Agreement of Limited Partnership
as follows:
ARTICLE 1.
DEFINITIONS; REFERENCES
1.1
Definitions. Unless
the context requires otherwise, the following
terms shall have the meanings specified in this Section 1.1:
1.1.1 Act: The Texas Revised Limited Partnership Act.
1.1.2 Additional Capital Contributions: The additional capital
contributions described in Section 3.4.
1.1.3 Adjusted Capital Account Deficit: With respect to any
Partner,
the deficit balance, if any, in such Partner's Capital Account
as
of the end of the relevant taxable year, after giving effect to
the following adjustments:
(a) Credit to such
Capital Account any amounts which such
Partner (1) is obligated to restore to the Partnership upon
liquidation of its interest in the Partnership (or which is
so treated pursuant to Regulations Section
1.704-1(b)(2)(ii)(c)) pursuant to the terms of this
Agreement or under state law or (2) is deemed to be
obligated to restore pursuant to the penultimate sentences
of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) and
(3) the Partner's share (as determined under Code Section
752) of any recourse indebtedness of the Partnership to the
extent that such indebtedness could not be repaid out of the
Partnership's assets if all of the Partnership's assets were
sold at their respective Book Values as of the end of the
Fiscal Year or other period and the proceeds from the sales
were used to pay the Partnership's liabilities; and
(b) Debit to such
Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5),
and 1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Section
1.704-1(b)(2)(ii)(d) of the
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Regulations and shall be interpreted consistently therewith.
For
purposes of clause (a)(3) above, the amounts computed pursuant
to
clause (a)(1) above for each Partner shall be considered to be
proceeds from the sale of the assets of the Partnership to the
extent such amounts would be available to satisfy (directly or
indirectly) the indebtedness specified in clause (a)(3).
1.1.4 Affiliate: With respect to any Person, a Person that directly
or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the Person in
question. As used herein, the term "control" means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through ownership of voting securities or interests, by
contract, or otherwise.
1.1.5 Agreement: This Agreement of Limited Partnership of
Ingram
Enterprises, L.P. and any amendments hereto.
1.1.6 Bankruptcy: A Person shall be deemed bankrupt if:
(a) any proceeding is
commenced against such Person as "debtor"
for any relief under bankruptcy or insolvency laws, or laws
relating to the relief of debtors, reorganizations,
arrangements, compositions, or extensions and such
proceeding is not dismissed within sixty (60) days after
such proceeding has commenced, or
(b) such Person
commences any proceeding for relief under
bankruptcy or insolvency laws or laws relating to the relief
of debtors, reorganizations, arrangements, compositions, or
extensions.
1.1.7 Book Value: With respect to any asset, the asset's
adjusted
basis for federal income tax purposes, except as follows:
(a) the initial Book
Value of any asset contributed (or deemed
contributed under Regulations Section 1.708-1(b)(1)(iv)) by
a Partner to the Partnership shall be the asset's gross fair
market value at the time of the contribution;
(b) the Book Value of
all Partnership assets shall be adjusted
to equal their respective gross fair market values, as
determined by the General Partner in its reasonable
judgment:
(i) if the General
Partner reasonably determines an
adjustment is necessary or appropriate to reflect the
relative economic interests of the Partners in the
Partnership as of (1) the acquisition of an additional
interest in the Partnership by any new or existing
Partner in exchange for more than a de
2
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minimis capital contribution, or (2) the distribution
by the Partnership to a Partner of more than a de
minimis amount of Partnership property as consideration
for an interest in the Partnership; and
(ii) as of the liquidation of the Partnership within the
meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
(c) the Book Value of
any Partnership asset distributed to any
Partner will be the gross fair market value of the asset on
the date of distribution; and
(d) the Book Values of
Partnership assets will be increased or
decreased to reflect any adjustment to the adjusted basis of
the assets under Code Sections 734(b) or 743(b), but only to
the extent that the adjustment is taken into account in
determining Capital Accounts under Regulations Section
1.704-1(b)(2)(iv)(m), provided that Book Values will not be
adjusted hereunder to the extent that the General Partner
determines that an adjustment under clause (b) is necessary
or appropriate in connection with a transaction that would
otherwise result in an adjustment under this clause (d).
After the Book Value of any asset has been adjusted under
clause
(a), clause (b) or clause (d) above, Book Value will be
adjusted
by the Depreciation taken into account with respect to the
asset
for purposes of computing Net Profit and Net Loss.
1.1.8 Capital Account: The capital account of a Partner
established
and maintained in accordance with Section 5.1.
1.1.9 Capital Contributions: With respect to any Partner, the
amount
of money actually contributed (or deemed contributed pursuant
to
Regulations Section 1.704-1(b)(2)(iv)(c)) to the Partnership
and
the initial Book Value of any property (other than money)
contributed to the Partnership with respect to the interest in
the Partnership held by that Partner (net of any liabilities
secured by such property that the Partnership is considered to
assume or to take subject to Code Section 752). Any reference
in
this Agreement to the Capital Contribution of a Partner will
include a Capital Contribution made by any prior Partner with
respect to the Partnership interest of the Partner.
1.1.10 Capital Transaction: The sale, exchange or other disposition
of
all or any portion of the property of the Partnership other
than
in the ordinary course of business of the Partnership. Capital
Transactions include the financing or refinancing of
Partnership
property which creates excess funds not
3
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needed for Operations and which funds, in the opinion of the
General Partner, are available for distribution to the
Partners.
1.1.11 Code: The United States Internal Revenue Code of 1986, as
now
existing or hereafter amended. References to sections of the
Code
include successor provisions to those sections.
1.1.12 Depreciation: For each taxable year or other period, an
amount
equal to the depreciation, amortization or other cost recovery
deduction allowable with respect to an asset for the year or
other period, except that if the Book Value of an asset differs
from its adjusted basis for federal income tax purposes at the
beginning of the year or other period, Depreciation will be an
amount which bears the same ratio to the beginning Book Value
as
the federal income tax depreciation, amortization or other cost
recovery deduction for the year or other period bears to the
beginning adjusted tax basis, provided that if the federal
income
tax depreciation, amortization, or other cost recovery
deduction
for the year or other period is zero, Depreciation will be
determined with reference to the beginning Book Value using any
reasonable method selected by the General Partner.
1.1.13 Fiscal Year: The period commencing on January 1 of each
year
and ending on December 31 of such year.
1.1.14 General Partner: Ingram Enterprises Management, Inc., a
Texas
corporation.
1.1.15 Gross Income: For each Fiscal Year or other period, an
amount
equal to the Partnership's gross income as determined for
federal
income tax purposes for such Fiscal Year or period but computed
with the adjustments specified in Section 1.1.20(a) and (c).
1.1.16 Initial Capital Contributions: The Capital Contributions of
the
General Partner made pursuant to Section 3.1 and the Limited
Partners made pursuant to Sections 3.2 and 3.3.
1.1.17 Limited Partner: Atlas Investments Inc., a Nevada
corporation,
and each Person who is admitted to the Partnership as a Limited
Partner and shown as a Limited Partner on the books and records
of
the Partnership.
1.1.18 Net Cash Flow: All cash funds from operations of the
Partnership on hand or on deposit from time to time after (i)
payment of all operating expenses payable as of the date in
question, (ii) provision for payment of all outstanding and
unpaid Partnership obligations due and payable as of the date
in
question or within sixty (60) days thereafter, and (iii) the
establishment of such reasonable reserves as the General
Partner,
in its sole discretion, deems appropriate for the operating
needs
of the Partnership. "Net Cash Flow" shall not include or
reflect
any proceeds received or expenses incurred in connection with a
Capital Transaction.
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1.1.19 Net Proceeds of a Capital Transaction: The net proceeds
received by the Partnership in connection with a Capital
Transaction after payment of all costs and expenses incurred by
the Partnership in connection with such Capital Transaction,
including, without limitation, brokers' commissions, loan fees,
other closing
costs, the cost of any alteration, improvement,
restoration or repair of Partnership assets necessitated by or
incurred in connection with such Capital Transaction, any
reserves that the General Partner believes in good faith should
be established and the payment of any loans owed by the
Partnership to any of the Partners, plus any other loans that
should be appropriately paid, as determined by the General
Partner in its reasonable discretion.
1.1.20 Net Profit and Net Loss: For each Fiscal Year or other
period,
an amount equal to the Partnership's taxable income or loss for
such Fiscal Year or period, determined in accordance with Code
Section 703(a) (for this purpose, all items of income, gain,
loss
or deduction required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss)
with the following adjustments:
(a) any income of the
Partnership that is exempt from federal
income tax and not otherwise taken into account in computing
Net Profit or Net Loss shall be added to such taxable income
or loss;
(b) any expenditures
of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
expenditures under
Regulations Section 1.704-1(b)(2)(iv)(i)
and not otherwise taken into account in computing Net Profit
or Net Loss shall be subtracted from such taxable income or
loss;
(c) gain or loss
resulting from any disposition of Partnership
property with respect to which gain or loss is recognized
for federal income tax purposes shall be computed by
reference to the Book Value of such property notwithstanding
that the Book Value of such asset differs from its adjusted
tax basis;
(d) gain or loss
resulting from any adjustment pursuant to
Section 1.1.7(b) shall be taken into account as gain or loss
from disposition of the asset for purposes of computing Net
Profit or Net Loss hereunder;
(e) gain or loss
resulting from any adjustment attributable to
an in-kind distribution of assets to any Partner pursuant to
Sections 5.2 shall be taken into account as gain or loss
from disposition of the asset for purposes of computing Net
Profit or Net Loss hereunder;
(f) in lieu of the
depreciation, amortization and other cost
recovery deductions taken into account in computing taxable
income or loss,
5
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there shall be taken into account Depreciation for such
Fiscal Year or other period as determined under Regulations
Section 1.704- 1(b)(2)(iv)(g)(3);
(g) the amount of any
Gross Income specially allocated to the
Partners pursuant to Sections 4.7 through 4.9 and 4.14 shall
not be included as income or revenue; and
(h) any amount
allocated pursuant to Sections 4.11 through 4.14
shall not be included as a gain, loss or deduction.
1.1.21 Net Profit and Net Loss from Capital Transactions: Net
Profit
and Net Loss including only those items of income, gain, loss
and
deduction relating to Capital Transactions.
1.1.22 Net Profit and Net Loss from Operations: Net Profit and
Net
Loss excluding those items of income, gain, loss and deduction
related solely to Capital Transactions.
1.1.23 Nonrecourse Deductions: Losses, deductions or Code
Section
705(a)(2)(B) expenditures attributable to Nonrecourse
Liabilities
of the Partnership. The amount of Nonrecourse Deductions for
any
Fiscal Year or other period shall be determined in accordance
with the provisions of Regulations Section 1.704-2(c).
1.1.24 Nonrecourse Liability: A nonrecourse liability as defined
in
Regulations Section 1.752-1(a)(2).
1.1.25 Operations: All operations and activities of the
Partnership
other than those related to or consisting of a Capital
Transaction.
1.1.26 Partner: A Partner of the Partnership, including the
General
Partner and the Limited Partner.
1.1.27 Partner Nonrecourse Debt: Any Nonrecourse Liability of
the
Partnership for which any Partner or related person bears the
economic risk of loss under Regulations Section 1.752-2.
1.1.28 Partner Nonrecourse Debt Minimum Gain: The minimum gain
attributable to Partner Nonrecourse Debt as determined under
Regulations Section 1.704-2(i)(3).
1.1.29
Partner Nonrecourse Deductions: Partnership losses, deductions
or Code Section 705(a)(2)(B) expenditures attributable to a
particular Partner Nonrecourse Debt. The amount of Partner
Nonrecourse Deductions for any Fiscal Year or other period
shall
be determined in accordance with the provisions of Regulations
Section 1.704-2(i)(2).
6
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1.1.30 Partnership: Ingram Enterprises, L.P., a Texas limited
partnership.
1.1.31 Partnership Certificate: The certificate of limited
partnership
of the Partnership filed in conformance with the Act.
1.1.32 Partnership Minimum Gain: The amount computed under
Regulations
Section 1.704-2(d)(1) with respect to the Partnership's
Nonrecourse Liabilities.
1.1.33 Partnership Percentage or Percentages: The percentages of
the
Partners as follows:
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General Partner .1%
Limited Partner
99.9%
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1.1.34 Partnership Term: The period of duration of the Partnership,
as
set forth in Section 2.5.
1.1.35 Person: Any individual, partnership, corporation, trust
or
other legal entity.
1.1.36 Regulations: The Income Tax Regulations promulgated under
the
Code, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
1.1.37 Tax Matters Partner: The General Partner.
1.1.38 Transfer: Any sale, assignment, transfer, lease or other
disposal of property, including without limitation, an interest
in the Partnership.
1.2
References. Unless
otherwise specified herein, references in this
Agreement to "Section," "Subsection," "Article," or "Exhibit" refer
to
the sections, subsections, articles, or exhibits in this
Agreement.
ARTICLE 2.
FORMATION, NAME, PURPOSE, REGISTERED OFFICE,
REGISTERED AGENT AND TERM
2.1
Formation of the
Limited Partnership. The General Partner and the
Limited Partner hereby form the Partnership as a limited
partnership
pursuant to and in accordance with the provisions of the Act.
2.2
Partnership Name. The
business of the Partnership will be conducted
under the name Ingram Enterprises, L.P. or such other name or names
as
the General Partner may determine.
7
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2.3
Purpose. The purpose
of the Partnership is to (i) manufacture and
distribute concrete and related products, (ii) own, manage,
operate,
mortgage, sell and otherwise deal with the assets of the
Partnership;
and, (iii) engage in such other activities as the General
Partner
shall deem appropriate, to the extent such activities may be
carried
on under applicable law and are not prohibited by the terms and
provisions of this Agreement.
2.4
Principal and
Registered Office. The principal office of the
Partnership is at 1445 MacArthur, Ste.136, Carrollton, Texas
75007.
The General Partner has a business office at the Partnership's
principal office. The registered office of the Partnership is at
2020
Fisk, Brownwood, Texas 76801, and Jerry Roberts is the
registered
agent of the Partnership. The General Partner may change the
principal
or registered office or registered agent of the Partnership from
time
to time. The General Partner may establish, maintain and abandon
one
or more additional places of business for the Partnership.
2.5
Term of the
Partnership. The term of the Partnership shall commence
upon the filing and recording of the Partnership Certificate,
and
shall continue until December 31, 2050, unless earlier
terminated
pursuant to the terms of this Agreement.
ARTICLE 3.
CAPITAL CONTRIBUTIONS; PARTNER LOANS
3.1
Initial Capital
Contribution of General Partner. The General Partner
has contributed $1.00 to the Partnership. The General Partner
shall
not otherwise be required to make additional contributions to
the
Partnership except as provided in Sections 3.4 and 5.5.
3.2 Initial Capital Contribution of
Limited Partners. The Limited Partner
has contributed $999.00 to the Partnership hereto. The Limited
Partner
shall not be required to make additional contributions to the
Partnership except as specified in Sections 3.4 and 5.5.
3.3
Authorization of
Partner Loans. Subject to the limitations herein and
to other agreements of the Partnership, the General Partner from
time
to time may cause the Partnership to borrow required amounts from
one
or more Partners or their Affiliates. Loans made by Partners or
Affiliates under this Section 3.3 will not be considered a
contribution to the capital of the Partnership, but will
constitute
indebtedness of the Partnership to the advancing Partner or
Affiliate,
payable from the first available net cash flow of the
Partnership
unless otherwise agreed by the lending Partner or Affiliate and,
to
the extent still unpaid, upon the termination and liquidation of
the
Partnership. Each loan by a Partner or Affiliate will bear
simple
interest compounded annually on the unpaid principal balance at
the
interest rate approved by the General Partner. The Partners will
not
be personally liable for loans made by Partners or Affiliates
under
this Section 3.3 or
8
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be obligated to make contributions to the capital of the
Partnership
to repay those loans. Loans made by Partners or Affiliates under
this
Section 3.3 will be payable only from the assets of the
Partnership.
3.4
Additional Capital
Contributions. The Partners may make Additional
Capital Contributions to the Partnership from time to time as may
be
required to meet the demands of the business of the Partnership.
The
Partners shall contribute such Additional Capital Contributions
in
cash in proportion to the Partners' Partnership Percentages.
ARTICLE 4.
DISTRIBUTIONS AND ALLOCATIONS
4.1
Distribution of Net
Cash Flow. Net Cash Flow shall be distributed
among the Partners in accordance with their Partnership Percentages
at
such times and in such amounts as shall be determined by the
General
Partner.
4.2
Distribution of Net
Proceeds of a Capital Transaction. Net Proceeds of
a Capital Transaction shall be distributed among the Partners
in
accordance with their Partnership Percentages at such times and
in
such total amounts as shall be determined by the General
Partner.
4.3
Return of and Interest
on Capital Contributions. No Partner is
entitled to the return of his Capital Contributions or his
Capital
Account or to be paid interest in respect of either his Capital
Account or any Capital Contribution made by him to the
Partnership
except as
provided in this Agreement.
4.4
Payments. The amount
of any distribution or payment to a Partner
whether pursuant to Article 4 or Article 9 hereof may be made in
cash
or in-kind or partially in cash and partially in-kind in the
reasonable discretion of the General Partner or the liquidating
trustees, as the case may be, less reasonable reserves established
in
the reasonable discretion of the General Partner or the
liquidating
trustees, as the case may be, for known or unknown liabilities of
the
Partnership.
4.5
In-Kind Distributions.
All distributions of assets in-kind shall be
made at Book Value as determined pursuant to Section 5.3 and shall
be
distributed to the Partners in the same manner as a distribution
of
Net Proceeds of a Capital Transaction would have been made if
such
assets had been sold. The Net Profit or Net Loss resulting from
distribution will be allocated in accordance with Section 4.6.3
or
Section 4.6.4, as the case may be.
4.6
Allocations of Net
Profit and Net Loss.
4.6.1 Net Profit From Operations.
(a) If any Net Loss
has been allocated to the Partners pursuant
to Section 4.6.2 or Section 4.6.4, then Net Profit from
Operations
9
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shall first be allocated to the Partners, in the same
proportions as such Net Loss was allocated, until each
Partner's Capital Account balance equals what it would have
been had there been no such allocation of Net Loss.
(b) After any
allocation required pursuant to Section 4.6.1(a),
Net Profit from Operations shall be al
