AGREEMENT OF LIMITED PARTNERSHIP OF MARLIN HOLDCO LP
Exhibit
7.14
AGREEMENT
OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇▇
HOLDCO LP
This
Agreement of Limited Partnership (this “Agreement”) of ▇▇▇▇▇▇ HoldCo LP
is entered into this 17th day of December 2007 by ▇▇▇▇▇▇ HoldCo GP, LLC (the
“General Partner”) and each of the Persons listed on the signature pages
hereto as the limited partners (together with any other limited partners that
may hereafter be admitted to the Partnership as a limited partner pursuant
to
the terms of this Agreement, the “Limited Partners” and, collectively
with the General Partner, the “Partners”) pursuant to and in accordance
with the Delaware Revised Uniform Limited Partnership Act (6
Del.C.§ 17-101, et seq.), as amended from time to time
(the “Act”).
1.
Name. The
name of the partnership governed hereby is ▇▇▇▇▇▇ HoldCo LP (the
“Partnership”).
2.
Certificate
of Limited Partnership. The General Partner has filed a
Certificate of Limited Partnership for the Partnership with the Secretary of
State of the State of Delaware, and the Partners shall take such further actions
as shall be appropriate to comply with all requirements of law for the formation
and operation of a limited partnership in the State of Delaware, and all other
counties and states where the Partnership may elect to do business.
3.
Purpose. The
Partnership is formed for the object and purpose of, and the nature of the
business to be conducted and promoted by the Partnership is, engaging in all
lawful activities for which partnerships may be formed under the
Act.
4.
Powers. The
Partnership shall have the power to do any and all acts reasonably necessary,
appropriate, proper, advisable, incidental or convenient to or for the
furtherance of the purpose and business described herein and for the protection
and benefit of the Partnership and shall have, without limitation, any and
all
of the powers that may be exercised on behalf of the Partnership by the General
Partner pursuant to this Agreement, including Section 15.
5.
Principal
Business Office. The principal place of business and office of
the Partnership shall be located at, and the Partnership’s business shall be
conducted from, such place or places as may hereafter be determined by the
General Partner.
6. Registered
Office. The address of the registered office of the Partnership
in the State of Delaware is c/o Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
7. Registered
Agent. The name and address of the registered agent of the
Partnership for service of process on the Partnership in the State of Delaware
are Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
8.
Term. The
term of the Partnership commenced on the date of filing of the Certificate
of
Limited Partnership of the Partnership in accordance with the Act and shall
continue until dissolution of the Partnership in accordance with Section 21
of
this Agreement.
9.
Limitation
on Liabilities of Limited Partners. Notwithstanding any provision
of this Agreement, the Limited Partners shall not be liable for any of the
losses, debts or liabilities of the Partnership in excess of their respective
Capital contributions.
10. Capital
Contributions. Each Partner is deemed admitted as a Partner of
the Partnership upon his or its execution and delivery of this
Agreement. The initial contributions of the Partners consist of the
assets set forth on Schedule A attached hereto. The total capital of
a Partner in the Partnership from time to time shall be referred to as such
Partner’s “Capital.”
11. Additional
Contributions. The Partners are not required to make additional
capital contributions to the Partnership.
12. Capital
Accounts. Separate capital accounts (“Capital Accounts”)
shall be maintained for each Partner on the books of the Partnership, which
Capital Accounts shall set forth the Capital of such Partner in the
Partnership. Each Capital Account shall be adjusted to reflect such
Partner’s shares of allocations and distributions and any additional capital
contributions to the Partnership or withdrawals of Capital from the
Partnership. Such Capital Accounts shall further be adjusted to
conform to the Treasury Regulations under Section 704(b) of the Internal Revenue
Code of 1986, as amended (the “Code”), as interpreted in good faith by
the General Partner.
13. Profits
and Losses. The Profits or Losses incurred by the Partnership for
each taxable year shall be determined on an annual basis. For each
taxable year in which the Partnership realizes Profits or Losses, such Profits
or Losses, respectively, shall be allocated to each Partner in accordance with
the ratio which such Partner’s Capital in the Partnership bears to the total
Capital of all Partners in the Partnership at the time of such
allocation. As used herein, “Profits” and “Losses” mean, for each
fiscal year or other period, an amount equal to the Partnership’s taxable income
or loss for such year or period, determined in accordance with Section 703(a)
of
the Code (for this purpose, all items of income, gain, loss or deduction
required to be stated separately pursuant to Section 703(a)(1) of the Code
shall
be included in taxable income or loss), with the following
adjustments:
(i) Any
income of the Partnership that is exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses shall be added
to
such taxable income or loss; or
(ii) Any
expenditures of the Partnership described in Section 705(a)(2)(B) of the Code
or
treated as Section 705(a)(2)(B) of the Code expenditures pursuant to Regulations
Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits or Losses shall be subtracted from such taxable income or
loss.
14. Management.
a.
The
business and affairs of the Partnership shall be managed by the General
Partner. Subject to the express limitations contained in any
provision of this Agreement, the General Partner shall have complete and
absolute control of the affairs and business of the Partnership, and shall
possess all powers necessary, convenient or appropriate to carrying out the
purposes and business of the Partnership, including, without limitation, doing
all things and taking all actions necessary to carrying out the terms and
provisions of this Agreement.
b.
Subject
to the rights and powers of the General Partner and the limitations thereon
contained herein, the General Partner may delegate to any person any or all
of
its powers, rights and obligations under this Agreement and may appoint,
contract or otherwise deal with any person to perform any acts or services
for
the Partnership as the General Partner may reasonably determine.
c.
No
Partner (other than the General Partner) shall participate in the management
or
control of the business of, or shall have any rights or powers with respect
to,
the Partnership except those expressly granted to it by the terms of this
Agreement, or those conferred on it by law.
d.
The
General Partner shall not be compensated for its services as the general partner
of the Partnership without the consent of the Partners that have contributed
at
least 87% or more of the capital to the Partnership.
15. Officers. The
General Partner may, from time to time as it deems advisable, appoint officers
of the Partnership (the “Officers”) and assign in writing titles
(including, without limitation, President, Vice President, Secretary and
Treasurer) to any such person. Unless the General Partner decides
otherwise, if the title is one commonly used for officers of a business
corporation formed under the Delaware General Corporation Law, the assignment
of
such title shall constitute the delegation to such person of the authorities
and
duties that are normally associated with that office. Any delegation
pursuant to this Section 15 may be revoked at any time by the General
Partner.
16. Other
Business. The Partners may engage in or possess an interest in
other business ventures (unconnected with the Partnership) of every kind and
description, independently or with others. The Partnership shall not
have any rights in or to such independent ventures or the income or profits
therefrom by virtue of this Agreement.
17. Liability
of General Partner.
a.
The
General Partner shall not be liable, responsible or accountable in damages
to
the Limited Partners or the Partnership for (x) any act or omission on behalf
of
the Partnership performed or omitted to be taken by it in good faith and in
a
manner reasonably believed by it to be within the scope of the authority granted
to it by this Agreement and in, or not opposed to, the best interests of the
Partnership, provided that the General Partner is not guilty of gross negligence
or willful misconduct, (y) any action or omission taken or suffered by any
other
Partner or (z) any mistake, negligence, dishonesty or bad faith of any broker
or
other agent of the Partnership selected by the General Partner with reasonable
care. To the extent that, at law or in equity, the General Partner
has duties (including fiduciary duties) and liabilities relating thereto to
the
Partnership or to another Partner, the General Partner acting under this
Agreement shall not be liable to the Partnership or such other Partner for
its
good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they expand or restrict the
duties and liabilities of the General Partner otherwise existing at law or
in
equity, are agreed by the Partners to modify to that extent such other duties
and liabilities of the General Partner. To the fullest extent
permitted by law, the Partnership shall indemnify the General Partner against
any loss, damage or expense (including amounts paid in satisfaction of
judgments, in settlements, as fines and penalties and legal and other costs
and
expenses of investigation or defense) incurred by it by reason of any act or
omission so performed or omitted by it (and not involving gross negligence
or
willful misconduct) and any such amount shall be paid by the Partnership to
the
extent assets are available, but the Limited Partners shall not have any
personal liability to the General Partner or the Partnership on account of
such
loss, damage or expense.
b.
The
General Partner may consult with legal counsel, accountants and other
professional experts selected by it and any act or omission suffered or taken
by
it on behalf of the Partnership or in furtherance of the interests of the
Partnership in good faith in reliance upon and in accordance with the advice
of
such counsel, accountants or other professional experts shall be full
justification for any such act or omission, and the General Partner shall be
fully protected in so acting or omitting to act, provided such counsel,
accountants or other professional experts were selected with reasonable
care.
c.
To
the
fullest extent permitted by law, expenses incurred by the General Partner in
defense or settlement of any claim that may, at the determination of the General
Partner, be subject to a right of indemnification hereunder may be paid by
the
Partnership in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of the General Partner to repay such amount to
the
Partnership if it shall be determined, by a court of competent jurisdiction
pursuant to a final non-appealable judgment, order or decree, that the General
Partner is not entitled to be indemnified hereunder.
18. Admission
of Additional Partners. One (1) or more additional persons may be
admitted to the Partnership as Partners with the written consent of the General
Partner.
19. Dissolution
of the Partnership. Subject to Section 21, the termination,
dissolution, death, bankruptcy or adjudicated incompetency of a Partner shall
not cause a dissolution of the Partnership, but the rights of such Partner
to
share in the Profits and Losses of the Partnership, to receive distributions
and
to assign his or its interest in the Partnership pursuant to Section 20 shall,
on the happening of such an event, devolve on his or its legal representative
for the purpose of settling his estate or administering its
property.
20. Assignments. A
Partner may not transfer, assign, pledge or hypothecate, in whole or in part,
his or its limited partnership interest without the prior written consent of
the
General Partner, except that each of MIP Waste Holdings L.P. and GS Direct,
LLC
may transfer, assign, pledge or hypothecate in its sole discretion, in whole
or
in part its limited partnership interest to Macquarie Group Limited, or ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., as applicable, and its subsidiaries and affiliates and funds
managed by Macquarie Group Limited, or ▇▇▇▇▇▇▇, Sachs & Co., as
applicable, and its subsidiaries and affiliates.
21. Dissolution.
a.
The
Partnership shall dissolve, and its affairs shall be wound up upon the first
to
occur of the following: (i) the decision of the General Partner,
(ii) the termination, dissolution, bankruptcy or other event of withdrawal
of the General Partner or at any time there are no limited partners, unless
the
business of the Partnership is continued in accordance with the Act and (iii)
the entry of a decree of judicial dissolution under Section 17-802 of the
Act.
b.
In
the
event of dissolution, the Partnership shall conduct only such activities as
are
necessary to wind up its affairs (including the sale of the assets of the
Partnership in an orderly manner).
22. Tax
Matters Partner. MIP Waste Holdings L.P. is hereby designated as
the tax matters partner within the meaning of Section 6231(a)(7) of the Code
(the “Tax Matters Partner”). In such capacity, the Tax Matters
Partner shall have all of the rights, authority and power, and shall be subject
to all of the regulations of, a tax matters partner to the extent provided
in
the Code; provided, that any decision or action of the Tax Matters
Partner that would have a material adverse effect on the Partnership, will
be
subject to the prior approval of the General Partner. All expenses
incurred by the Tax Matters Partner in connection with its duties as Tax Matters
Partner shall be expenses of the Partnership.
23. Elections. The
General Partner shall determine the accounting methods and conventions under
the
tax laws of any and all applicable jurisdictions as to the treatment of income,
gain, loss, deduction and credit of the Partnership or any other method or
procedure related to the preparation of such tax returns. The General
Partner may cause the Partnership to make or refrain from making any and all
elections permitted by such tax laws, and the General Partner shall not be
liable for any consequences to any previously admitted or subsequently admitted
Partners resulting from their making or failing to make any such
elections.
24. Separability
of Provisions. Each provision of this Agreement shall be
considered separable and if for any reason any provision or provisions herein
are determined to be invalid, unenforceable or illegal under any existing or
future law, such invalidity, unenforceability or illegality shall not impair
the
operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
25. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original of this Agreement.
26. Entire
Agreement. Subject to Section 27, this Agreement constitutes the
entire agreement of the Partners with respect to the subject matter
hereof.
27. Interim
Investors Agreement. Notwithstanding anything to the contrary in
this Agreement, all matters addressed in the Interim Investors Agreement shall
be governed in accordance with the terms of the Interim Investors Agreement,
and
in the event of any inconsistency between the terms of this Agreement and the
terms of the Interim Investors Agreement, the terms of the Interim Investors
Agreement shall govern.
28. Governing
Law. This Agreement shall be governed by, and construed under,
the laws of the State of Delaware (without regard to conflict of laws principles
thereof), and all rights and remedies shall be governed by such laws. Any
dispute, claim or controversy arising out of or relating to this Agreement,
including the determination of the scope or applicability of this agreement
to
arbitrate, shall be finally determined by arbitration in North Carolina before
a
single arbitrator (the “Sole Arbitrator”). The arbitration
shall be administered by the American Arbitration Association pursuant to its
Commercial Arbitration Rules of the AAA (the
“Rules”). Judgment on any award may be entered in any court
having jurisdiction, and shall include injunctive or other equitable relief
to
the extent awarded by the Sole Arbitrator. If the Sole Arbitrator
determines that a frivolous claim or defense was asserted by a party, the Sole
Arbitrator shall, in the award, direct that such party pay the costs of the
arbitration, including the fees of the arbitrator and the reasonable attorneys'
fees of the other party, that are attributable to the disposition of such
frivolous claim or defense. This Section 28 shall not preclude
parties from seeking provisional remedies in aid of arbitration from a North
Carolina state court or federal court sitting in North Carolina, including
but
not limited to temporary restraining orders and preliminary injunctions pending
the award of the Sole Arbitrator.
29. Amendments. This
Agreement may not be modified, altered, supplemented or amended except pursuant
to a written agreement executed and delivered by Partners that have contributed
at least 87% or more of the capital to the Partnership.
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have
duly executed this Agreement as of the date first written above
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GENERAL
PARTNER:
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▇▇▇▇▇▇
HOLDCO GP, LLC
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By:
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/s/
▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇ ▇. ▇▇▇▇▇
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Title:
Vice President
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LIMITED
PARTNERS:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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▇▇▇▇▇▇
▇. ▇▇▇▇▇, III
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇
▇. ▇▇▇▇▇
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/s/
▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇
▇. ▇▇▇▇▇
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▇▇▇▇▇▇
▇. ▇▇▇▇▇, III IRREVOCABLE TRUST (TAILWALKER
TRUST)
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Trustee
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▇▇▇▇▇▇
▇. ▇▇▇▇▇, III IRREVOCABLE TRUST (TAILWALKER NON-GST
TRUST)
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Trustee
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▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇. GRANTOR TRUST DATED MAY 1, 1995
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Title:
Trustee
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Trustee
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PERRY
2007 IRREVOCABLE TRUST U/A/D
DECEMBER 13, 2007
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Perry
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Title:
Trustee
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DAMAS
II CHARITABLE REMAINDER UNITRUST
U/A/D 12/13/07
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇
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Title:
Trustee
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MIP
WASTE HOLDINGS, L.P., by its General Partner, MIP Waste GP
LLC
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By:
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/s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
President
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By:
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/s/
▇▇▇▇ ▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇
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Title:
Treasurer
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GS
DIRECT, LLC
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title:
Managing Director
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