LIMITED PARTNERSHIP AGREEMENT OF MXL REALTY, LP A Pennsylvania Limited Partnership
TABLE OF
CONTENTS
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Page
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ARTICLE
1 - DEFINITIONS
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1
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1.1
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Definitions
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1
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ARTICLE
2 - FORMATION AND PURPOSE
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7
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2.1
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Formation
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7
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2.2
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Name
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8
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2.3
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Principal
Place of Business
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8
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2.4
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Purposes
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8
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2.5
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Other
Qualifications
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8
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ARTICLE
3 - CAPITAL CONTRIBUTIONS
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8
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3.1
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Capital
Contribution of the General Partner
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8
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3.2
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Capital
Contributions of Limited Partners; Bank Guaranties
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8
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3.3
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Capital
Accounts
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8
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3.4
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No
Return of or Interest on Capital; No Partition
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9
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3.5
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Additional
Capital Contributions and Personal Guaranties
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9
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3.6
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Partnership
Interests
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9
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ARTICLE
4 - DISTRIBUTIONS TO PARTNERS AND ALLOCATIONS OF PROFITS AND
LOSSES
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9
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4.1
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Profits
and Losses
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9
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4.2
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Distributions
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10
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4.3
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Special
Allocations
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11
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4.4
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Curative
Allocations
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12
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4.5
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Tax
Allocations: Code Section 704(c)
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13
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4.6
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Miscellaneous
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13
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4.7
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Establishment
of Reserve
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14
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4.8
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Amounts
Withheld
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14
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ARTICLE
5 - MANAGEMENT
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14
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5.1
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Rights
and Duties of Partners
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14
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5.2
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Fiduciary
Duties of the General Partner
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14
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5.3
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Power
of the General Partner
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14
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5.4
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Exculpation
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15
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5.5
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Partnership
Indemnification of the General Partner
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15
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5.6
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Holding
of Property
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15
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5.7
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Right
to Rely on General Partner
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15
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5.8
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Loans
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16
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5.9
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General
Partner Fee
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16
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ARTICLE
6 - RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
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17
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6.1
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Liability
of Partners
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17
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6.2
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Voting
Rights
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17
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6.3
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Partnership
Meetings
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17
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6.4
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Partner
A Approval of Certain Matters
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18
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6.5
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Super-Majority
Approval of Certain Matters
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19
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6.6
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Voting
on Amendments
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20
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6.7
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Covenant
Not to Withdraw
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20
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-i-
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6.8
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Covenant
Not to Compete
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20
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| ARTICLE 7 - ACCOUNTING |
20
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7.1
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Books
and Records
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20
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7.2
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Fiscal
Year
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21
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7.3
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Tax
and Financial Reports
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21
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7.4
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Partnership’s
Accountant
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21
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7.5
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Tax
Matters Partner
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21
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7.6
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Federal
Income Tax Elections
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22
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ARTICLE
8 - TERM AND DISSOLUTION
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22
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8.1
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Term
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22
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8.2
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Events
Causing Termination
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22
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8.3
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Actions,
Death, etc., of Limited Partners
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22
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8.4
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Distribution
in Case of Termination
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23
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8.5
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Rights
of Partners on Liquidation
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23
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| ARTICLE 9 - TRANSFER OF PARTNERSHIP INTERESTS |
23
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9.1
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Transfer
of Interests Generally
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23
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9.2
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Permissible
Transfers
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25
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9.3
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Acquisition
of an Interest Conveyed to Another Without Authority
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26
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9.4
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Indemnity
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26
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9.5
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Right
of First Refusal
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27
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9.6
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Required
Transfers
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28
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9.7
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Restrictions
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29
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| ARTICLE 10 - TAG ALONG RIGHTS |
29
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10.1
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Notice
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29
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10.2
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Acceptance
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30
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10.3
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Closing
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30
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10.4
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Holding
Period
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30
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10.5
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Records
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30
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10.6
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Limitations
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31
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| ARTICLE 11 - REGISTRATION RIGHTS |
31
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11.1
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Notice
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31
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11.2
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Underwritten
Offering
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31
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11.3
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Termination
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32
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11.4
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Expenses
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32
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11.5
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Registration
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32
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11.6
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Condition
Precedent
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33
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11.7
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Violations
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33
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| ARTICLE 12 - REMOVAL, RESIGNATION OF GENERAL PARTNER, SUCCESSOR GENERAL PARTNER |
35
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12.1
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Involuntary
Removal of a General Partner
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35
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12.2
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Resignation
of a General Partner
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36
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12.3
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Sole
Remaining General Partner
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36
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12.4
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Status
of Former General Partner
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36
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ARTICLE
13 - GENERAL PROVISIONS
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36
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13.1
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Power
of Attorney
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36
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13.2
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Binding
Effect and Benefit of This Agreement
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37
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-ii-
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13.3
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Certificates,
etc
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37
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13.4
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Notices,
etc
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37
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13.5
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Integration;
Termination
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37
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13.6
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Interpretation
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37
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13.7
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Counterparts
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38
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13.8
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Severability
of Provisions
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38
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13.9
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Calculations
and Computations
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38
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13.10
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Matters
Relating to Disputes
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38
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-iii-
OF
MXL
REALTY, LP
THIS LIMITED PARTNERSHIP AGREEMENT is
made as of June 16, 2008, by and between MXL GP, LLC, a Pennsylvania limited
liability company, as the general partner and the undersigned Limited
Partners. The General Partner and each Limited Partner are sometimes
referred to hereinafter individually as a “Partner” and collectively as the
“Partners.”
Background
The Partners have created a limited
partnership under the Act, with the intent of purchasing the “Rohrerstown Road
Real Estate”, as hereinafter defined. The Partnership will own,
operate, lease, and otherwise deal with the Rohrerstown Road Real
Estate.
This Agreement provides for, among
other matters, the management of the business of the Partnership, the allocation
of profits and losses and the distribution of cash among the Partners, the entry
of new Partners into the Partnership, the exit of Partners from the Partnership,
the respective rights, obligations, duties and interests of the Partners
relative to each other and to the Partnership, and sets forth their mutual
understandings, rights and obligations regarding the foregoing and the other
matters contained herein.
NOW, THEREFORE, in consideration of the
mutual promises and covenants herein and intending to be legally bound, the
parties hereto agree as follows:
ARTICLE
1DEFINITIONS
1.1 Definitions. For
purposes of this Agreement, the following terms shall have the meanings set
forth below, except as otherwise specified or as the context may otherwise
require:
“Act” shall mean the Pennsylvania
Revised Uniform Limited Partnership Act, as amended from time to
time.
“Adjusted Capital Account Deficit”
shall mean with respect to any Partner, the deficit balance, if any, in such
Partner’s Capital Account as of the end of the relevant fiscal year, after
giving effect to the following adjustments: (i) credit to such
Capital Account any amounts which such Partner is obligated to restore or is
deemed to be obligated to restore pursuant to Treasury Regulation Sections
1.704-2(g)(1) and 1.704-2(i)(5), and (ii) 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 Regulations and shall be interpreted
consistently therewith.
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“Affiliate” shall have the meaning set
forth in Rule 12b-2 of the regulations promulgated under the Exchange Act and
shall also include the heirs and legal representatives of any non-corporate
Party.
“Agreement” shall mean this Limited
Partnership Agreement of the Partnership, as amended from time to
time.
“Bank Agreement” shall mean the Credit
Agreements dated June 19, 2008 by and between the Buyer Entities and Union
National Community Bank, as amended from time to time.
“Bankruptcy” shall mean (i) the entry
of an order for relief by a court having jurisdiction in respect of a Person in
an involuntary proceeding under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
a Person or for any substantial part of such Person’s property or the entry of
an order for the winding up or liquidation of its affairs, which decree or order
remains unstayed and in effect for a period of ninety (90) consecutive days,
(ii) the commencement by a Person of a voluntary proceeding under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of a Person or for any substantial part of
its property, or any general assignment by a Person for the benefit of
creditors, or (iii) the attachment by a creditor of a Person’s interest in the
Partnership, which attachment is not discharged or vacated within ninety (90)
days from the date it becomes effective.
“Business Day” shall mean a day on
which national banks operating in Pennsylvania and the primary depository bank
for the Partnership are open for business.
“Buyer Entities” shall mean the
Partnership, MXL Leasing and MXL Operations.
“Capital Account(s)” shall mean the
individual account(s) maintained by the Partnership with respect to each Partner
as provided in Section 3.3 of this Agreement.
“Capital Contribution(s)” shall mean
the amount of cash or the agreed value of the property or services (as
determined by the Partners and the Partnership) contributed by each Partner to
the Partnership as provided in Article 3 of this Agreement.
“Certificate” means the Certificate of
Limited Partnership filed with the Pennsylvania Department of State dated April
14, 2008, as amended from time to time.
“Code” shall mean the Internal Revenue
Code of 1986, as amended. All references to the Code or any
regulations adopted thereunder, including Treasury Regulations or Temporary
Treasury Regulations, are references to the Code or such regulations as they are
in effect on the date as to which reference is made to them.
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“Depreciation” shall mean for each
fiscal year or other period, an amount equal to the depreciation, amortization,
or other cost recovery deduction allowable with respect to an asset for such
year or other period, except that if the Gross Asset Value of an asset differs
from its adjusted basis for federal income tax purposes at the beginning of such
year or other period, Depreciation shall be an amount which bears the same ratio
to such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however, that if the
federal income tax depreciation, amortization, or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the General
Partner.
“Employee Partners” shall mean ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇ and any other person admitted as an Employee Partner of the
Partnership in accordance with this Agreement.
“Equity Interests” shall mean the
ownership interest of Partner A in the Partnership, MXL Leasing and MXL
Operations.
“Exchange Act” shall mean the
Securities Exchange Act of 1934; as amended and all rules and regulations
promulgated thereunder.
“Fair Market Value” shall, solely for
purposes of Article 9, mean, as of any date of determination, with respect to
any Partnership Interest, the Partner’s Percentage Interest multiplied by the
net book value of the Partnership as shown on the balance sheet of the
Partnership for the most recently completed fiscal year of the Partnership as
determined by the Partnership’s regularly-employed independent certified public
accountants, adjusted to reflect all profits, losses, results of operation,
contributions and other adjustments required by generally accepted accounting
principles since the end of such fiscal year to the date of valuation; provided, however,
that the fair market value of any real estate owned by the Partnership shall be
substituted for the book value of the real estate. In determining the
fair market value of real estate, the Partnership accountants shall use either
the Partnership’s lender’s appraiser or shall select a qualified appraiser,
which appraiser may be a qualified appraiser who is part of or affiliated with
the Partnership’s independent accounting firm so long as the Partnership’s
accountant reasonably believes such appraiser can perform his appraisal without
bias for or against any involved Person. If the Partnership has an
appraisal (including for banking purposes) not more than eighteen (18) months
old, such appraisal may be used in the accountant’s discretion. The
fees and expenses incurred in connection with the appraiser’s determination of
fair market value of the real estate shall be paid by the
Partnership.
“General Partner” shall mean MXL GP,
LLC, a Pennsylvania limited liability company, and any other person or entity
admitted to the Partnership as a general partner in accordance with this
Agreement.
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“Gross Asset Value,” with respect to
any asset, shall mean the asset’s adjusted basis for federal income tax
purposes, except as follows:
(a) The
initial Gross Asset Value of any asset contributed by a Partner to the
Partnership shall be the gross fair market value of such asset, as determined by
the contributing Partner and the Partnership;
(b) The
Gross Asset Values of all Partnership assets shall be adjusted to equal their
respective gross fair market values, as determined by the General Partner, as of
the following times:
(i) the
acquisition of an additional interest in the Partnership by any new or existing
Partner in exchange for more than a de minimis Capital
Contribution;
(ii) the
distribution by the Partnership to a Partner of more than a de minimis amount of
Partnership property other than money, as consideration for an interest in the
Partnership;
(iii) the
liquidation of the Partnership for federal income tax purposes within the
meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g); provided, however,
that the adjustments pursuant to clauses (i) and (ii) above shall be made only
if the General Partner reasonably determines that such adjustments are necessary
or appropriate to reflect the relative economic interests of the Partners in the
Partnership;
(iv) the
grant of an interest in the Partnership (other than a de minimus interest) as
consideration for the provision of services to or for the benefit of the
Partnership by an existing Partner acting in such Partner’s capacity as a
Partner, or by a new Partner acting in a capacity as a Partner or in
anticipation of becoming a Partner; and
(v)
any other time, when, and in a manner that,
(A) maintains equality between the governing Capital Accounts of the Partners
and the amount of capital reflected on the Partnership’s balance sheet, (B) is
consistent with the underlying economic arrangement of the Partners, and (C) is
based, wherever practicable, on federal tax accounting principles.
(c) The
Gross Asset Value of any Partnership asset distributed to any Partner shall be
the gross fair market value of such asset on the date of
distribution;
(d) The
Gross Asset Values of Partnership assets shall be increased (or decreased) to
reflect any adjustments to the adjusted basis of such assets pursuant to Code
Section 734(b) or Code Section 743(b), but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to
Regulation Section 1.704-1(b)(2)(iv)(m) and Section 4.3(g) hereof; provided,
however, that Gross Asset Values shall not be adjusted pursuant to this clause
(d) to the extent the General Partner determines that an adjustment pursuant to
clause (b) hereof is necessary or appropriate in connection with a transaction
that would otherwise result in an adjustment pursuant to this clause (d);
and
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(e) If
the Gross Asset Value of an asset has been determined pursuant to subparagraphs
(a), (b) or (d) hereof, such Gross Asset Value shall thereafter be adjusted by
the Depreciation taken into account with respect to such asset for purposes of
computing Profits and Losses.
“Holding Period” shall mean the period
commencing on the date of this Agreement and ending on the date upon which
Partner A no longer has beneficial ownership of any of the Partnership Interests
or equity securities into which the Partnership Interests have been
converted.
“Indebtedness” shall mean obligations
for borrowed money.
“Initial Limited Partner” or “Initial
Limited Partners” shall mean ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ Holdings, LLC
and MXL Industries, Inc.
“Limited Partner” shall mean one of the
Initial Limited Partners, or any other person admitted as a limited partner of
the Partnership in accordance with this Agreement. The term “Limited
Partners” shall mean all the Initial Limited Partners who continue to remain as
Limited Partners and all other persons hereafter admitted to the Partnership as
Limited Partners who remain as such.
“Majority-in-Interest” shall mean the
Partners whose aggregate Percentage Interests exceed fifty percent (50%) of the
Percentage Interests of the Partners in the Partnership.
“MXL Leasing” shall mean MXL Leasing,
LP, a Pennsylvania limited partnership, and its successors
“MXL Operations” shall mean MXL
Operations, Inc., a Pennsylvania corporation, and its successors.
“Nonrecourse Deductions” are deductions
having the meaning set forth in Sections 1.704-2(b)(1) and 1.704-2(c) of the
Treasury Regulations.
“Other Partners” shall mean those
Partners other than Partner A.
“Partner A” shall mean MXL Industries,
Inc., a Delaware corporation.
“Partner Nonrecourse Debt” has the same
meaning set forth in Sections 1.704-2(b) (4) and 1.704-2(i) of the Treasury
Regulations.
- 5
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“Partner Nonrecourse Debt Minimum Gain”
shall have the meaning set forth in Treasury Regulation Section 1.704-2(i) and
shall be determined in accordance with the principles of such Section of the
Treasury Regulations.
“Partner Nonrecourse Deductions” has
the meaning set forth in Sections 1.704-2(i)(1) and 1.704-(2)(i)(2) of the
Treasury Regulations.
“Partnership” shall mean MXL Realty,
LP, a Pennsylvania limited partnership.
“Partnership Interest” means an
interest, limited or general, in the Partnership determined in a manner
consistent with Treasury Regulations §1.704-1(b)(3), as amended or any successor
thereto. The Partnership Interests of the Partners will be set forth
on a Schedule hereto, as amended from time to time.
“Partnership Minimum Gain” has the
meaning set forth in Treasury Regulation Sections 1.704-2(b)(2) and
1.704-2(d).
“Percentage Interest” of each Partner
shall be as set forth on a Schedule attached hereto. The Percentage
Interest of the Partners shall be, if different from the foregoing, as set forth
on the books and records of the Partnership from time to time with respect to
each Partner.
“Person” shall mean any individual,
partnership, corporation, trust, limited liability partnership, or other
entity.
“Profits and Losses” shall 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
Code
Section 703(a) (for these purposes, 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 Profits and Losses pursuant to the
foregoing shall be added to such taxable income or loss;
(b) Any
expenditures of the Partnership described in Code Section 705(a)(2)(B) or that
are treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury
Regulation Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in
computing Profits and Losses pursuant to the foregoing shall be subtracted from
such taxable income or loss;
(c) In
the event the Gross Asset Value of any Partnership asset is adjusted pursuant to
clause (b) or (c) of the definition of Gross Asset Value, the amount of such
adjustment shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Profits and Losses;
- 6
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(d) 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 Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of such property differs from its
Gross Asset Value;
(e) In
lieu of the depreciation, amortization, and other cost recovery deductions taken
into account in computing such taxable income or loss, there shall be taken into
account Depreciation for such fiscal year or other period, computed in
accordance with the definition of Depreciation under this Agreement;
and
(f) Notwithstanding
the above, any items which are specially allocated pursuant to Sections 4.3 or
4.4 hereof shall not be taken into account in computing Profits and
Losses.
“Put and Call Agreement” shall mean the
Put and Call Agreement dated of even date herewith by and between Partner A, the
Partnership, MXL Leasing and MXL Operations.
“Rohrerstown Road Real Estate” shall
mean the real estate and improvements thereon at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
“SEC” means the US Securities and
Exchange Commission.
“Securities Act” shall mean the
Securities Act of 1933; as amended and all rules and regulations promulgated
thereunder.
“Selling Expenses” shall mean all
underwriting discounts and selling commissions applicable to a sale of
Partnership Interests.
“Super-Majority” or “Super-Majority of
the Partners” shall mean the Partners whose aggregate Percentage Interests
exceed sixty-five percent (65%) of the Percentage Interests of the Partners in
the Partnership.
ARTICLE
2
FORMATION
AND PURPOSE
2.1 Formation. The
parties hereto hereby approve and ratify the Certificate. Whenever it
shall become necessary or appropriate to amend or restate the Certificate, the
General Partner shall timely file an amended and/or restated Certificate, and
the General Partner shall do and continue to do all other things as may be
required or advisable to maintain the Partnership as a limited partnership
existing pursuant to Pennsylvania law and as provided herein.
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2.2 Name. The
name of the Partnership shall be “MXL Realty, LP.” The Partnership
may do business under such other names as may be chosen from time to time by the
General Partner.
2.3 Principal Place of
Business. The Partnership’s registered office is at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The Partnership may maintain such other
offices as the General Partner shall determine.
2.4 Purposes. The
purposes of the Partnership shall be, subject to the restriction herein, (a) to
acquire, own, operate, manage, lease, sell, mortgage, securitize, syndicate, and
generally deal in any and all ways with such investments in real and personal
property of any and all types as the General Partner may from time to time
determine, including the Rohrerstown Road Real Estate, (b) to engage in any and
all other lawful business as the General Partner may from time to time determine
is advisable, and (c) to make, enter into and perform any contracts and other
undertakings, and to engage in any activities and transactions as may be
ancillary to or necessary or advisable to carry out the foregoing
purposes.
2.5 Other
Qualifications. The Partnership shall exist under the laws of
the Commonwealth of Pennsylvania and, to the extent that the business of the
Partnership is conducted in any jurisdiction other than the Commonwealth of
Pennsylvania, under the laws of such other jurisdiction to the extent necessary
or desirable to do business in such jurisdiction, as determined by the General
Partner.
ARTICLE
3
CAPITAL
CONTRIBUTIONS
3.1 Capital Contribution of the
General Partner. The General Partner shall contribute cash
and/or other assets to the Partnership.
3.2 Capital Contributions of
Limited Partners. Each Limited Partner shall contribute cash
and/or other assets to the Partnership.
3.3 Capital
Accounts. For tax purposes, a separate Capital Account shall
be established and maintained for each Partner in accordance with Code Section
704 and Treasury Regulation Section 1.704-1(b) and the following
provisions:
(a) Generally,
the Capital Account of a Partner shall consist of the Partner’s initial Capital
Contribution increased by: (i) any additional Capital Contributions
in cash, (ii) the fair market value of any Capital Contribution of property in
kind (net of liabilities securing such contributed property that the Partnership
is considered to assume or take subject to, under Section 752 of the Code), and
(iii) such Partner’s share of Partnership profits (or items thereof allocated
pursuant to Article 4), including income and gain exempt from tax, and decreased
by (iv) distributions in cash to such Partner, (v) the fair market value of
property distributed in kind to such Partner (net of liabilities securing such
distributed property that such Partner is considered to assume or take subject
to, under Section 752 of the Code), (vi) such Partner’s share of Partnership
losses allocated pursuant to Article 4, and (vii) such Partner’s share of
expenditures of the Partnership described or treated as described in Section
705(a)(2)(B) of the Code.
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(b) If
any interest in the Partnership, or a portion thereof, is transferred in
accordance with this Agreement, the transferee shall succeed to the Capital
Account of the transferor to the extent it relates to the transferred
interest.
(c) The
foregoing provisions and other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Treasury Regulation
Section 1.704-1(b) and shall be interpreted and applied in a manner consistent
with such Regulations. If the General Partner determines that it is
prudent to modify the manner in which the Capital Accounts, or any debits or
credits thereto are computed to comply with such Regulations, the General
Partner may make such modification, provided that it is not likely to have a
material effect on the amounts distributable to any Partner pursuant to Articles
4 and 8 hereof. The General Partner also may make any appropriate
modifications if unanticipated events might otherwise cause this Agreement not
to comply with Treasury Regulation Section 1.704-1(b).
3.4 No Return of or Interest on
Capital; No Partition. Except as specifically provided in this
Agreement, no Partner may withdraw any amount from his Capital Account or be
paid interest on his Capital Contributions or his Capital Account. No
General Partner shall have any personal liability for the repayment of any
Capital Contributions of any Limited Partner. Each Partner waives his
right to partition Partnership property. The foregoing shall not
constitute a waiver of any Partner’s rights upon dissolution of the
Partnership.
3.5 Additional Capital
Contributions and Personal Guaranties. No Partner shall be
required to make any additional Capital Contributions to the Partnership, except
as provided herein or provided by applicable law.
3.6 Partnership
Interests. The interests of the Partners in the Partnership
shall be personal property for all purposes.
ARTICLE
4
DISTRIBUTIONS
TO PARTNERS AND ALLOCATIONS
OF
PROFITS AND LOSSES
4.1 Profits and
Losses. After giving effect to the special allocations set
forth in Sections 4.3 and 4.4 hereof, Profits and Losses for any fiscal year
shall be allocated to the Capital Accounts of the Partners in
accordance with the Partners’ respective Percentage
Interests. Notwithstanding the previous sentence, no such Losses
shall be allocated to a Partner which would cause such Partner to have an
Adjusted Capital Account Deficit at the end of any fiscal year. Any
Losses not allocated to a Partner due to the foregoing limitation shall be
specially allocated to the Limited Partners with positive Capital Account
balances in proportion to such Capital Account balances until all such Capital
Account balances have been reduced to zero and any remaining Losses shall be
allocated to the General Partner.
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4.2 Distributions.
(a) Net Cash Flow
Defined. To the extent permissible under any mortgage, loan or
similar agreements to which the Partnership is a party, the gross cash proceeds
received by the Partnership from any and all sources, including any and all
proceeds from the sale, other disposition, financing or refinancing of any asset
of the Partnership, and the reduction in any and all reserves and escrows
previously established, shall be used:
(i) first,
to pay all Partnership operating expenses (which such operating expenses shall
include compensation for services rendered to the Partnership by one or more of
the Partners or Affiliates of Partners, as determined from time to time upon
written approval of the General Partner), debt (including pursuant to loans
payable to a Partner or an Affiliate of a Partner), lease payments, capital
improvements and replacements, then due and owing;
(ii) second,
to establish, fund and increase reasonable reserves and escrow accounts as
determined by the General Partner, from time to time, to be reasonably
appropriate to provide for the payment of Partnership expenses, debt payments,
lease payments, capital improvements and replacements, contingencies and all
other purposes, all such determinations by the General Partner to be made in the
General Partner’s sole discretion; and
(iii) finally,
the balance (the “Net Cash Flow”) shall be distributed to the Partners in
accordance with this Agreement.
(b) Tax Minimum
Distributions. The Partnership shall distribute to each
Partner an amount of Net Cash Flow equal to the excess, if any, of: (i) the
marginal federal, state and local income tax rate of the Partner with the
highest marginal federal, state and local income tax rate (for avoidance of
doubt, any Partner that is a corporation will likely have a different tax rate
than any Partner who is an individual or a pass-through entity) multiplied by
the aggregate amount of taxable income allocated to such Partner for such fiscal
year and all prior fiscal years (except that there shall be no distribution
under this Section 4.2(b) to the extent that taxable income allocated to any
Partner is attributable to a reversal of a prior fiscal year’s taxable losses
allocated to such Partner), minus (ii) the aggregate distributions previously
made to such Partner for such fiscal year and all prior fiscal years pursuant to
this Section 4.2(b) and Section 4.2(c).
(c) Discretionary
Distributions. At such times during any fiscal year as the
General Partner determines, in the General Partner’s sole discretion, if all
distributions pursuant to Section 4.2(b) have been made in full, the Partnership
may, if the General Partner determines to do so in the General Partner’s sole
discretion, make distributions up to the amount of the undistributed Net Cash
Flow to all of the Partners. Except as otherwise provided in this
Agreement, including Section 8.4, the Net Cash Flow of the Partnership shall be
distributed in the following amounts and in the following
priorities:
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(i) first,
to each of the Partners in the amount of and in proportion to the excess, if
any, of: (A) the aggregate Profits allocated to such Partner for the current and
all prior fiscal years; minus (B) the
aggregate Net Cash Flow previously distributed to such Partner pursuant to this
Section 4.2(c)(i) for all prior fiscal years; and
(ii) finally,
to each of the Partners in proportion to their relative Percentage
Interests.
4.3 Special
Allocations. The following special allocations shall be made
in the following order:
(a) Minimum Gain
Chargeback. Notwithstanding any other provision of this
Article 4, if there is a net decrease in Partnership Minimum Gain during any
Partnership taxable year, each Partner shall be specially allocated items of
Partnership income and gain for such year (and, if necessary, subsequent years)
in accordance with Treasury Regulation Section
1.704-2(f). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Partner pursuant thereto. The items to be so allocated shall be
determined in accordance with Section 1.704-2(f) of the Treasury
Regulations. This Section 4.3(a) is intended to comply with the
minimum gain chargeback requirement in such Section of the Regulations and shall
be interpreted consistently therewith.
(b) Partner Minimum Gain
Chargeback. Notwithstanding any other provision of this
Article 4 except Section 4.3(a), if there is a net decrease in Partner
Nonrecourse Debt Minimum Gain attributable to a Partner Nonrecourse Debt during
any Partnership fiscal year, each Partner who has a share of the Partner
Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse Debt,
determined in accordance with Treasury Regulation Section 1.704-2(i)(5), shall
be specially allocated items of Partnership income and gain for such year (and,
if necessary, subsequent years) in accordance with Treasury Regulation Section
1.704-2(i)(4). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Partner pursuant thereto. The items to be so allocated shall be
determined in accordance with Section 1.704-2(i)(4) of the Treasury
Regulations. This Section 4.3(b) is intended to comply with the
minimum gain chargeback requirement in such Section of the Regulations and shall
be interpreted consistently therewith.
(c) Qualified Income
Offset. In the event any Partner who is not obligated (or
treated as obligated) to restore a deficit balance in its Capital Account
unexpectedly receives any adjustments, allocations, or distributions described
in Regulation Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially
allocated to each such Partner in an amount and manner sufficient to eliminate,
to the extent required by the Regulations, the Adjusted Capital Account Deficit
of such Partner as quickly as possible, provided that an allocation pursuant to
this Section 4.3(c) shall be made if and only to the extent that such Partner
would have an Adjusted Capital Account Deficit after all other allocations
provided for in this Article 4 have been tentatively made as if this Section
4.3(c) were not in the Agreement.
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(d) Gross Income
Allocation. In the event any Partner has a deficit Capital
Account at the end of any Partnership fiscal year that is in excess of the sum
of (i) the amount such Partner is obligated to restore and (ii) the amount such
Partner is deemed to be obligated to restore pursuant to Sections 1.704-2(g)(1)
and 1.704-2(i)(5) of the Treasury Regulations, each such Partner shall be
specially allocated items of Partnership income and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to this
Section 4.3(d) shall be made if and only to the extent that such Partner would
have a deficit Capital Account balance in excess of such sum after all other
allocations provided for in this Article 4 have been tentatively made as if
Section 4.3(c) hereof and this Section 4.3(d) were not in the
Agreement.
(e) Nonrecourse
Deductions. Nonrecourse Deductions for any taxable year or
other period shall be allocated among the Partners in proportion to their
respective Percentage Interests.
(f)
Partner
Nonrecourse Deductions. Any Partner Nonrecourse Deductions for
any fiscal year or other period shall be specially allocated to the Partner who
bears the economic risk of loss with respect to the Partner Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable in accordance with
Treasury Regulation Section 1.704-2(i).
(g) Section 754
Adjustment. To the extent an adjustment to the adjusted tax
basis of any Partnership asset pursuant to Code Section 734(b) or Code Section
743(b) is required, pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis) and such gain or loss shall be specially
allocated to the Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such Section of the
Regulations.
4.4 Curative
Allocations. The allocations set forth in the last two
sentences of Section 4.1 hereof and in Section 4.3 hereof (the “Regulatory
Allocations”) are intended to comply with certain requirements of Treasury
Regulation Section 1.704-1(b). It is the intent of the Partners that,
to the extent possible, all Regulatory Allocations shall be offset either with
other Regulatory Allocations or with special allocations of other items of
Partnership income, gain, loss or deduction pursuant to this Section
4.4. Therefore, notwithstanding any other provision of this Article 4
(other than the Regulatory Allocations), the General Partner shall make such
offsetting special allocations of Partnership income, gain, loss and deduction
in whatever manner it determines appropriate so that, after such offsetting
allocations are made, each Partners’ Capital Account balance is, to the extent
possible, equal to the Capital Account balance such Partner would have had if
the Regulatory Allocations were not part of the Agreement and all Partnership
items were allocated pursuant to the first sentence of Section 4.1
hereof. In exercising its discretion under this Section 4.4, the
General Partner shall take into account future Regulatory Allocations under
Sections 4.3(a) and 4.3(b) that, although not yet made, are likely to offset
other Regulatory Allocations previously made under Sections 4.3(e) and
4.3(f).
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4.5 Tax
Allocations: Code Section 704(c).
(a) In
accordance with Code Section 704(c) and the Regulations thereunder, income,
gain, loss, and deduction with respect to any property contributed to the
capital of the Partnership 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 for federal income tax purposes and its
initial Gross Asset Value.
(b) In
the event the Gross Asset Value of any Partnership asset is adjusted pursuant to
clause (ii) of the definition of Gross Asset Value, subsequent allocations of
income, gain, loss, and deduction with respect to such asset shall take account
of any variation between the adjusted basis of such asset for federal income tax
purposes and its Gross Asset Value in the same manner as under Code Section
704(c) and the Regulations thereunder.
(c) Any
elections or other decisions relating to allocations pursuant to this Section
4.5 shall be made by the General Partner in any manner that reasonably reflects
the purpose and intention of this Agreement. Allocations pursuant to
this Section 4.5 are solely for purposes of federal, state and local taxes and
shall not affect, or in any way be taken into account in computing, any
Partner’s Capital Account or share of Profits and Losses, other items, or
distributions pursuant to any provision of this Agreement.
4.6 Miscellaneous.
(a) For
purposes of determining the Profits and Losses or any other items allocable to
any period, Profits and Losses and any such other items shall be determined on a
daily, monthly or other basis, as determined by the General Partner using any
permissible method under Code Section 706 and the Regulations promulgated
thereunder.
(b) Except
as otherwise provided in this Agreement, all items of Partnership income, gain,
loss, deduction and any other allocations not otherwise provided for shall be
divided among the Partners in the same proportions as they share Profits and
Losses, as the case may be, for the year.
(c) The
Partners are aware of the income tax consequences of the allocations made by
this Article 4 and hereby agree to be bound by the provisions of this Article 4
in reporting their shares of Partnership income or loss for income tax
purposes.
(d) Solely
for the purpose of determining each Partner’s share of excess nonrecourse
liabilities pursuant to Treasury Regulation Section 1.752-3(a)(3), and solely
for such purpose, each Partner’s interest in Partnership Profits and Losses is
hereby specified to be such Partner’s Percentage Interest.
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4.7 Establishment of
Reserve. The General Partner shall have the right and
obligation to establish reasonable reserves based on generally accepted
accounting principles for maintenance, improvements, acquisitions, capital
expenditures and other contingencies, such reserves to be funded with such
portion of the operating revenues of the Partnership for any fiscal year as the
General Partner, in the General Partner’s sole discretion, may deem necessary or
appropriate for that purpose.
4.8 Amounts
Withheld. All amounts withheld pursuant to the Code or any
provision of any state or local tax law with respect to any payment,
distribution or allocation to the Partnership or the Partners shall be treated
as amounts distributed to the Partners pursuant to this Article 4 for all
purposes under this Agreement. The General Partner is authorized to
withhold from distributions, or with respect to allocations, to the Partners and
to pay over to any federal, state or local government any amounts required to be
so withheld pursuant to the Code or any provision of any other federal, state or
local law and shall allocate any such amounts to the Partners with respect to
which such amount was withheld.
ARTICLE
5
MANAGEMENT
5.1 Rights and Duties of
Partners. No Limited Partner shall take part in the control,
direction or operation of the affairs of the Partnership other than to exercise
the rights specifically provided in this Agreement, nor may any Limited Partner
act for or bind the Partnership. Subject to the terms and
restrictions of this Agreement, at all times the sole control of the Partnership
shall rest exclusively with the General Partner who shall have all of the rights
and powers which may be possessed by general partners under the
Act. No prior consent or approval of a Limited Partner is required
for any act or transaction to be taken by the General Partner unless otherwise
specifically provided in this Agreement.
5.2 Fiduciary Duties of the
General Partner. The General Partner shall have fiduciary
responsibility for the safekeeping and use of all funds and assets of the
Partnership, whether or not in its immediate possession or control.
5.3 Power of the General
Partner. The General Partner shall have the complete and
exclusive right, power and authority to manage and control all of the business,
affairs, assets and properties of the Partnership and is authorized and
empowered to carry out and implement all of the purposes of the Partnership
subject to the terms of this Agreement and, in particular, subject to Sections
6.4 and 6.5 of this Agreement. The General Partner shall be required
to devote to the conduct of the business of the Partnership only such time and
attention as it may from time to time deem necessary or
desirable. Without limiting the generality of the foregoing, all
transactions between the Partnership and any one or both of the other Buying
Entities shall be at arms-length and, in the reasonable view of the General
Partner, upon terms and conditions no less favorable to the Partnership than
could be obtained from an unaffiliated third party.
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5.4 Exculpation. No
Partner as such or any officer, director, employee or agent of any Partner or
the Partnership shall be liable to the Partnership or any other Partner for
losses or liabilities arising from the conduct of the affairs of the Partnership
or from the conduct of any employee or agent of the Partnership; provided,
however, that such losses or liabilities do not arise from willful misconduct,
recklessness, gross negligence or a material breach of this Agreement by such
Partner; and further provided, that nothing contained herein shall be deemed to
relieve the Partners of their obligation to act at all times in a fiduciary
capacity on behalf of the Partnership and all of the Partners.
5.5 Partnership Indemnification
of the General Partner.
(a) The
Partnership shall indemnify and hold harmless the General Partner and each of
the General Partner’s members, managers, officers, directors, employees and
agents, against all damages, losses, fines, costs and expenses (including
attorneys’ fees and disbursements), resulting from or relating in any way to any
claim or demand made or threatened, or any action, proceeding or investigation
commenced or threatened, arising out of or in any way relating to any action
taken or omitted to have been taken (or alleged to have been taken or omitted to
have been taken) by such person in connection with the organization, business or
other affairs of the Partnership (including any amounts paid or property
transferred, and all costs and expenses, including attorneys’ fees and
disbursements, incurred in connection with any settlement of any such claim,
action, proceeding, or investigation), except that such indemnification shall be
made only if such action or omission of such person is not determined to
constitute willful misconduct, recklessness, gross negligence or material breach
of this Agreement, with respect to the matter or matters as to which indemnity
is sought.
(b) For
the purposes of Section 5.5(a) hereof, the determination that the action or
omission of any person constitutes willful misconduct, recklessness, gross
negligence, or material breach of this Agreement, shall be made by a court of
competent jurisdiction or other body before which the relevant action,
proceeding or investigation is pending. In the absence of a
determination by such court or other body, such determination may be made by
legal counsel to the Partnership in a written legal opinion to the
Partnership.
5.6 Holding of
Property. Property owned by the Partnership shall be held in
the name of the Partnership or in nominee name.
5.7 Right to Rely on General
Partner.
(a) Any
person dealing with the Partnership may rely (without duty of further inquiry)
upon a certificate signed by any General Partner as to:
(i) The
identity of any General Partner or any Limited Partner;
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(ii) The
existence or nonexistence of any fact or facts which constitute a condition
precedent to acts by a General Partner or which are in any other manner germane
to the affairs of the Partnership;
(iii) The
persons who are authorized to execute and deliver any instrument or document of
the Partnership; or
(iv) Any
act or failure to act by the Partnership or any other matter whatsoever
involving the Partnership or any Partner.
(b) The
signature of any General Partner shall be necessary and sufficient to convey
title to any real property owned by the Partnership or to execute any promissory
notes, trust deeds, mortgages, or other instruments or hypothecation, and all of
the Partners agree that a copy of this Agreement may be shown to the appropriate
parties in order to confirm the same, and further agree that the signature of
any General Partner shall be sufficient to execute any “statement of
partnership” or other documents necessary to effectuate this or any other
provision of this Agreement. All of the Partners do hereby appoint
the General Partner as their attorney-in-fact for the execution of any or all of
the documents described in this Section 5.7(b).
5.8 Loans. Subject
to the restrictions contained in this Agreement, any person may, with the
consent of the General Partner, lend or advance money to the
Partnership. If any Partner shall make any loan or loans to the
Partnership or advance money on its behalf, the amount of any such loan or
advance shall not be treated as a Capital Contribution but shall be a debt due
from the Partnership. The amount of any such loan or advance by a
lending Partner shall be repayable out of the Partnership’s cash and shall bear
interest at such rate as the General Partner and the lending Partner shall agree
but not in excess of the maximum rate permitted by law. If any
General Partner is the lending Partner, the rate of interest shall be determined
by the General Partner taking into consideration, without limitation, prevailing
interest rates and the interest rates the lender is required to pay in the event
such lender itself borrowed funds to loan or advance to the Partnership, and the
terms and conditions of such loan, including the rate of interest, shall be no
less favorable to the Partnership than if the lender had been an independent
third party. None of the Partners shall be obligated to make any loan
or advance to the Partnership.
5.9 General Partner
Fee. The General Partner may in its discretion charge a
reasonable fee from time to time for services provided to the
Partnership. Such fee, if any, shall be consistent with general
market conditions and the services provided, and may in the General Partner’s
discretion from time to time be based on an hourly rate consistent with rates
charged by the Partnership’s outside auditors or as is otherwise commercially
reasonable.
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ARTICLE
6
RIGHTS
AND OBLIGATIONS OF LIMITED PARTNERS
6.1 Liability of
Partners. Except in the case of a Limited Partner who is also
a General Partner:
(a) No
Limited Partner shall have any personal liability with respect to the
liabilities or obligations of the Partnership, except to the extent that he
expressly and voluntarily assumes in writing any obligations of the Partnership;
and
(b) No
Limited Partner shall be personally liable or obligated, except as otherwise
required by law, either (i) to pay to the Partnership, any other Partner or any
creditor of the Partnership any deficiency in his Capital Account, or (ii) to
return to the Partnership or to pay any creditor or any other Partner the amount
of any return of his Capital Contribution to him or other distribution made to
him.
6.2 Voting
Rights. No Limited Partner shall have the right to vote on any
Partnership matter, except as specifically provided in this
Agreement. Any action to be taken by the Limited Partners may be
taken at a meeting held in accordance with Section 6.3 hereof or by consent in
writing in accordance with this Section 6.2. The General Partner
shall notify in writing all Limited Partners of record of any matters to be
voted upon or consented to and the date on which the votes or consents will be
counted. Each Limited Partner who is entitled to vote or consent
shall vote or consent at a meeting held for such purpose as set forth in Section
6.3 or may vote in any case by proxy or by a signed written consent or a signed
writing directing the manner in which it desires that its vote be cast, except
that any Limited Partner which fails to respond to the notice of the General
Partner within thirty (30) days after hand-delivery or the mailing thereof by
certified or registered mail shall be deemed not to have consented to and
approved any action proposed by the General Partner.
6.3 Partnership
Meetings.
(a) Meetings
of the Partnership may be called by the General Partner from time to time as
deemed appropriate by the General Partner on not less than five (5) days notice,
which may be waived if a quorum is present. Meetings may be called by
two (2) or more Limited Partners or by Partner A upon no less than five (5) days
but no more than twenty (20) days notice in writing to all other
Partners.
(b) At
any Partnership meeting, each Partner shall have the number of votes that
corresponds to its Percentage Interest in the Partnership. Partners
may participate in Partnership meetings by means of conference telephone calls
in which all Partners participating in the meeting can hear each
other. Each Partner may vote in person or by telephone, or may
authorize another Partner or Partners to act for it by proxy. Proxies
shall be valid only if in writing.
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(c) At
any Partnership meeting, the presence in person or by telephone or proxy of the
Partners holding a Majority-In-Interest shall constitute a
quorum. Except as otherwise provided herein, any matter presented for
a vote shall not be deemed approved unless it receives an affirmative vote of
the Partners holding a Majority-in-Interest. The affirmative vote of
a majority of Partners present in person or by telephone or proxy shall be
insufficient to approve any matter unless such Partners hold a
Majority-in-Interest. A designee of the General Partner will chair
all meetings of the Partnership.
6.4 Partner A Approval of
Certain Matters.
(a) For
the duration of the Holding Period, Partner A shall have the right to designate
one person (an “Advisory Manager”) who shall receive notice of, and be permitted
to attend, the annual meeting and any other meeting of the Managers of the
General Partner, and enter into all discussions undertaken at such
meetings. In addition, the Advisory Manager shall have the right to
call meetings of the Managers of the General Partner and add agenda items to any
such meeting of the Managers. The Advisory Manager shall not have a
vote on any matter before the Managers of the General Partner and shall not have
any fiduciary duty to the Partnership or its partners. The
indemnification provisions contained in this Agreement and the protection
afforded by any insurance provided for the benefit of the General Partner and
its members and Managers shall apply to the Advisory Manager to the same extent
as applicable to the General Partner and its members and Managers.
(b) The
Partnership shall not take, and the General Partner and Other Partners covenant
and agree that they shall not undertake, any of the following actions without
the approval of Partner A and as otherwise may be required by this
Agreement:
(i) Issuing,
repurchasing, canceling or redeeming any security, including any Indebtedness
(other than the Bank Agreement or any other bank agreements which in the
aggregate do not exceed $500,000 and which do not contain covenants or other
restrictions on Partner A exercising its “put” rights under the Put and Call
Agreement which are more restrictive than those contained in the Bank
Agreement), any Indebtedness convertible into equity, or any other form of
equity in the Partnership other than options or other equity interests issued
under a plan approved pursuant to subsection (ii) below or as permitted in
Article 9.
(ii) Adoption
of any plan pursuant to which equity interests in the Partnership in an
aggregate amount equal to more than 10% of the equity interests outstanding on
the date hereof may be granted to directors, officers or employees of the
Partnership.
(iii) Any
amendment to Articles 6, 9, 10, or 11 of this Agreement or any other amendment
to the Partnership’s Certificate of Limited Partnership or this Agreement which
would alter or affect the capital structure or permitted capital structure of
the Partnership or could otherwise substantially adversely affect the rights of
Partner A hereunder or the underlying value of its Partnership
Interests.
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(iv) Executing
or delivering any assignment for the benefit of creditors of the Partnership,
except in the ordinary course of business, or the filing of any voluntary
petition in bankruptcy or receivership with respect to the Partnership or taking
actions to dissolve the Partnership.
(v) Selling
or otherwise disposing of any tangible or intangible assets, except in the
ordinary course of business, having a value, individually or in the aggregate
for any series of related transactions, in excess of $500,000 (provided that the
sale of any real estate or equipment shall be considered in the ordinary course
of business provided that such sale is not to a Partner or Affiliate and the net
proceeds for such sale are used to purchase additional or replacement real
estate or equipment to be utilized exclusively by MXL Operations or reduce
indebtedness incurred to purchase such additional or replacement real estate or
equipment).
(vi) Any
transaction with the Other Partners or any of their Affiliates having a value
during any fiscal year which individually or in the aggregate exceeds $50,000
except for (A) compensation or other payments reasonably related to the
performance of the Partnership and the Other Partner’s performance and, in any
event, reasonably based upon compensation for similarly situated companies in
industries reasonably related to the business of the Partnership, (B) as
permitted under Section 5.9, or (C) other distributions to the Partners pursuant
to the terms of this Agreement (provided that this Section 6.4(b)(vi) shall not
apply to any transactions with MXL Operations and/or MXL Leasing).
(vii) The
purchase, lease or other acquisition of any tangible or intangible assets which
will not be utilized exclusively by MXL Operations or the use of the present
tangible and intangible assets of the Partnership by other than MXL Operations;
provided that this restriction shall not apply to the lease of the Rohrerstown
Road Real Estate to any third party after MXL Operations has made adequate
arrangements for a facility or facilities to carry on its business in the
ordinary course without interruption or other adverse effects other than on any
Other Partner or any of their Affiliates.
6.5 Super-Majority Approval of
Certain Matters. Without limiting the restrictions contained
in Section 6.4 the Partnership shall not take, and the General Partner covenants
and agrees that it shall not undertake, any of the following actions without the
approval of a Super-Majority of the Partners:
(a) Sell
or otherwise dispose of all or substantially all of the Partnership’s assets;
or
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(b) Except
as otherwise provided in this Agreement, admit or expel a Partner; provided that
Partner A may not be expelled except for a material breach of this Agreement and
then only after notice of such breach to Partner A and Partner A’s failure or
refusal to cure such breach within ninety (90) days after such notice (or if
such breach cannot be reasonably cured within such period, the commencement and
continuation of all reasonable action intended to lead to the cure of such
breach); or
(c) Amend
this Agreement in any material respect.
6.6 Voting on
Amendments.
(a) Amendments
to this Agreement may be proposed by the General Partner or by one (1) Limited
Partner. Following such proposal, the General Partner shall submit to
the Limited Partners a verbatim statement of any proposed amendment, providing
that counsel for the Partnership shall have approved of the same in writing as
to form, and the General Partner shall include in any such submission a
recommendation as to the proposed amendment. The General Partner
shall seek the written vote of the Partners on the proposed amendment or shall
call a meeting to vote thereon and to transaction any other business that it may
deem appropriate. Subject to Section 6.4(b), a proposed amendment
shall be adopted and be effective as an amendment hereto if it receives the
affirmative vote of a Super-Majority.
(b) Notwithstanding
Section 6.6(a) hereof and subject to Section 6.4(b), this Agreement shall not be
amended without the consent of each Partner adversely affected if such amendment
would (i) convert a Limited Partner’s interest in the Partnership into a General
Partner’s interest or (ii) modify the limited liability of a Limited
Partner.
6.7 Covenant Not to
Withdraw. Without limiting the rights of each Partner to sell
its Partnership Interest (which shall terminate such selling
Partner’s rights and obligations hereunder and with respect to the Partnership)
in any manner consistent with this Agreement, each Limited Partner hereby
covenants and agrees not to withdraw from the Partnership prior to the
dissolution of the Partnership without the consent of the remaining
Partners.
6.8 Covenant Not to
Compete. For the duration of the Holding Period and for two
(2) years thereafter, neither Partner A nor any of the Other Partners will
engage, directly or indirectly, in the manufacture, sale or distribution of
optical plastics molding or precision coating products which are competitive
with the products of MXL Operations in any geographic area in which MXL
Operations conducts its business.
ARTICLE
7
ACCOUNTING
7.1 Books and
Records. The General Partner shall keep, or cause to be kept,
true, exact and complete books of account of the Partnership’s affairs, in which
shall be entered fully and accurately each transaction of the Partnership and of
each entity which it controls. The books of account shall be kept on
a basis as determined by the General Partner. Such books of account,
together with all correspondence, papers and other documents, shall be kept at
the principal office of the Partnership and shall be, at all reasonable times,
open to the examination of any of the Partners or their duly authorized
representatives. Except as otherwise provided herein, all financial
books and records of the Partnership and of each entity which it controls shall
be kept and all financial statement furnished to the Partners hereunder shall be
prepared in accordance with generally accepted counting principles consistently
applied as modified by tax basis accounting or such other basis as the General
Partner may determine.
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7.2 Fiscal
Year. To the extent necessary under the Code, the fiscal year
and the taxable year of the Partnership shall end as of December 31 of each
calendar year.
7.3 Tax and Financial
Reports.
(a)
Not later than April 1 after the end of each fiscal year, if
practicable, each Partner shall be provided with an information letter with
respect to his distributive share of income, gain, deduction, losses and
credits, as the case may be, for income tax reporting purposes for the previous
fiscal year, together with any other information concerning the Partnership
necessary for the preparation of a Partner’s income tax return, including Form
K-1 for the Partnership.
(b) The
General Partner shall prepare or cause to be prepared all federal, state, and
local tax returns of the Partnership for each year for which such returns are
required to be filed. The Tax Matters Partner designated in Section
7.5 shall promptly notify all other Partners of any Partnership audits by the
Service or any state or local taxing authority.
(c) The
General Partner shall prepare or cause to be prepared all reports, audits, and
statements required in connection with the indebtedness of the
Partnership.
(d) The
General Partner shall cause to be distributed to the Partners, (A) not later
than fifteen (15) business days after the end of the first three calendar
quarters, an income statement for the prior calendar quarter and (B) not later
than forty five (45) businessdays after the end of each calendar year, a balance
sheet and income statement for the prior calendar year, all prepared in
accordance with generally accepted accounting principles consistently
applied. Partner A, and its independent accountants shall have full
access to the books and records of the Partnership in connection with, and as
reasonably necessary for, the preparation of Partner A’s quarterly
and annual financial statements.
7.4 Partnership’s
Accountant. The Partnership’s accountant shall be such firm of
independent certified public accountants as the General Partner may determine
from time to time, and may be the General Partner’s or any Affiliate of the
General Partner’s independent certified public accountants.
7.5 Tax Matters
Partner. To the extent necessary under the Code, the General
Partner is hereby designated as the “Tax Matters Partner” in accordance with
Section 6231(a)(7) of the Code and, in connection therewith and in addition to
all other powers given thereunder, shall have all other powers needed to perform
fully hereunder, including, without limitation, the power to retain all
attorneys and accountants of its choice. The Tax Matters Partner
shall give notice to each other Partner of a Partnership audit. The
designation made in this Section 7.5 is hereby expressly agreed to by each
Partner as an express condition to becoming a Partner.
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7.6 Federal Income Tax
Elections. In the event of a distribution of property to a
Partner or the transfer of an interest in the Partnership by sale, exchange,
gift or upon the death of a Partner, the General Partner may, in its discretion,
cause the Partnership to file an election under Section 754 of the Code in
accordance with the Regulations promulgated thereunder to adjust the basis of
Partnership property in the manner provided in Sections 734 and 743 of the
Code. All other elections required or permitted to be made by the
Partnership under the Code shall be made by the General Partner in such manner
as in its reasonable judgment will be most advantageous to the
Partners.
ARTICLE
8
TERM AND
DISSOLUTION
8.1 Term. The
term of the Partnership shall commence as of the date of this Agreement and
shall continue until termination pursuant to the provisions hereof.
8.2 Events Causing
Termination. Except as otherwise provided herein, the Partnership shall
be dissolved and shall terminate, and its affairs shall be wound up, upon the
occurrence of any of the following:
(a) the
Bankruptcy of the Partnership;
(b) the
determination by a Majority-in-Interest and Partner A that the Partnership
should be dissolved;
(c) the
sale or other disposition of all or substantially all of the assets of the
Partnership; or
(d) the
death, dissolution, removal, resignation, final adjudication of Bankruptcy or
withdrawal of the sole remaining General Partner, provided that any such event
shall not constitute an event causing a dissolution and termination if within
ninety (90) days either (A) a Super-Majority of the Partners remaining agree in
writing to continue the Partnership or (B) Partner A gives notice that it
desires to continue the Partnership and nominates a replacement General Partner
reasonably acceptable to a Majority-In-Interest of the Partners (an “Action to
Continue the Partnership”).
8.3 Actions, Death, etc., of
Limited Partners. No action of or event affecting a Limited
Partner shall dissolve or terminate the Partnership.
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8.4 Distribution in Case of
Termination. Upon the termination of the Partnership, the
General Partner, or upon the removal of the General Partner, such liquidating
agent as a Majority-In-Interest may appoint, shall proceed to wind up the
affairs of the Partnership, liquidate the assets and apply and distribute the
proceeds, unless within ninety (90) days after such event either Super-Majority
of the Partners or Partner A take an Action to Continue the Partnership, in the
following order of priority:
(a) To
the payment of the debts and liabilities of the Partnership and the expenses of
liquidation in the order of priority as provided by law, and to the
establishment of any reserves which the General Partner or liquidating agent
shall deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Partnership. Said reserves may be paid over by the
General Partner or liquidating agent to a bank or an attorney-at-law, to be held
in escrow for the purpose of paying any such contingent or unforeseen
liabilities or obligations and, at the expiration of such period as the General
Partner or liquidating agent shall deem advisable, such reserves shall be
distributed to the Partners or their assigns in the order of priority provided
in this Section 8.4; and
(b) To
the Partners in an amount equal to the credit balance in each of their Capital
Accounts, after giving effect to all contributions, distributions and
allocations for all periods.
Liquidation shall be conducted in
accordance with Section 1.704-1(b)(2) of the Treasury Regulations and if the
General Partner has a deficit Capital Account balance, it shall restore such
deficit in accordance with such Section of the Regulations. Any such
deficit shall not be considered a debt owed to the Partnership or to any other
person for any purpose whatsoever. The Partnership shall terminate
when all property owned by Partnership shall have been disposed of and the net
proceeds, after satisfaction of liabilities to creditors, shall have been
distributed among the Partners as aforesaid. The establishment of any
reserves in accordance with the provisions of subsection 8.4(a) shall not have
the effect of extending the term of the Partnership.
8.5 Rights of Partners on
Liquidation. Except as otherwise provided in this Agreement,
(i) each Partner shall look solely to the assets of the Partnership for the
return of his Capital Contributions and shall have no right or power to demand
or receive property other than cash from the Partnership, and (ii) except as set
forth in Section 8.4, no Partner shall have priority over any other Partner as
to the return of his Capital Contributions, distributions, or
allocations.
ARTICLE
9
TRANSFER
OF PARTNERSHIP INTERESTS
9.1 Transfer of Interests
Generally.
(a) The
Partners shall not have the right to transfer their interests in the Partnership
except as otherwise specifically provided in this Agreement or the Put and Call
Agreement. A transfer shall include a voluntary or involuntary sale,
exchange, assignment, gift, pledge, hypothecation, or other encumbrance or
disposition (hereinafter a “Transfer”). No transferee of an interest
in the Partnership or in this Agreement shall have any rights as a member of the
Partnership, unless the Transfer was made in accordance with this
Agreement.
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(b) THE
OWNERSHIP AND TRANSFERABILITY OF INTERESTS IN THE PARTNERSHIP ARE SUBSTANTIALLY
RESTRICTED. NEITHER RECORD TITLE NOR BENEFICIAL OWNERSHIP OF A
PARTNERSHIP INTEREST OF ANY PARTNER MAY BE TRANSFERRED OR ENCUMBERED EXCEPT AS
OTHERWISE SET FORTH IN THIS AGREEMENT. THIS PARTNERSHIP IS FORMED BY
THOSE WHO KNOW AND TRUST ONE ANOTHER, WHO HAVE SURRENDERED CERTAIN MANAGEMENT
RIGHTS, OR WHO WILL HAVE ASSUMED MANAGEMENT RESPONSIBILITY AND RISK BASED UPON
THEIR RELATIONSHIP AND TRUST. CAPITAL IS MATERIAL TO THE BUSINESS AND
INVESTMENT OBJECTIVES OF THE PARTNERSHIP. AN UNAUTHORIZED TRANSFER OF
A PARTNER'S INTEREST COULD CREATE A SUBSTANTIAL HARDSHIP TO THE PARTNERSHIP,
JEOPARDIZE ITS CAPITAL BASE, AND ADVERSELY AFFECT ITS TAX
STRUCTURE. THE RESTRICTIONS UPON OWNERSHIP AND TRANSFER UNDER THIS
ARTICLE 9 ARE NOT INTENDED AS A PENALTY, BUT AS A METHOD TO PROTECT AND PRESERVE
EXISTING RELATIONSHIPS BASED UPON TRUST AND THE PARTNERSHIP'S CAPITAL AND ITS
FINANCIAL ABILITY TO CONTINUE. THEREFORE, THE PARTNERS AGREE THAT NO
PARTNER SHALL TRANSFER, OR PERMIT TO BE TRANSFERRED, ALL OR ANY PORTION OF HIS
RECORD TITLE OR BENEFICIAL INTEREST IN THE PARTNERSHIP WHETHER NOW OR HEREAFTER
ACQUIRED, EXCEPT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WITH THE
PRIOR WRITTEN CONSENT OF ALL OF THE PARTNERS.
(c) Any
attempted Transfer of any Partnership interest not in accordance with the terms
of this Agreement shall be null and void and shall not be reflected on the
Partnership’s books; provided, however, that, if the Partnership is required to
recognize a Transfer that is not otherwise permitted (or Partner A and a
Majority-In-Interest of the Partners elect to recognize a Transfer that is not a
permitted Transfer), then, unless the transferee is made a substitute Partner as
provided in this Agreement, the interest so Transferred shall be strictly
limited to the transferor's rights to distributions and allocations of income,
gain, loss, deduction or credit as provided by this Agreement with respect to
the Transferred interest, which distributions and allocations may be applied
(without limiting any other legal or equitable rights of the Partnership) to
satisfy any debts, obligations, or liabilities for damages that the transferor
or transferee of such interest may have to the Partnership.
(d) Each
Partner hereby acknowledges the reasonableness of the restrictions on Transfer
imposed by this Agreement in view of the Partnership purposes and the
relationship of the Partners. Accordingly, the restrictions on
Transfer contained herein shall be specifically enforceable.
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9.2 Permissible
Transfers. Transfers of interests in the Partnership shall be
subject to and made only in accordance with this Article 9, Article 10 and
Article 11 and any purported Transfer to the contrary shall be null and void
ab
initio
and shall not be recognized by or binding upon the
Partnership.
(a) Partner
A may transfer all or any part of its interest in the Partnership only if the
transferee agrees in writing to be bound by this Agreement and the transferred
Partnership Interest remains subject to the rights of the Buyer Entities under
the Put and Call Agreement; provided that Partner A’s rights under Section 6.4
and the Put and Call Agreement shall terminate unless the Transfer is approved
by the General Partner. For purposes of this Agreement, Partner A
shall not be deemed to have transferred any part of its interest in the
Partnership pursuant to any sale
or transfer involving (i) more than 50% of the outstanding voting power of
Partner A; (ii) all or a substantial part of the assets of Partner A; (iii) the
merger of Partner A with or into another entity; or (iv) a transaction with an
Affiliate of Partner A.
(b) An
Other Partner may Transfer all, or any part of his interest in the Partnership
if (i) the Transfer complies with Section 9.5 of this Agreement and the
transferee agrees in writing to be bound by this Agreement; or (ii) such Partner
shall have first obtained the written consent to such Transfer from the General
Partner (and the General Partner shall have complete discretion to approve or
disapprove of any such Transfer), and the transferee agrees in writing to be
bound by this Agreement; provided,
however,
that any transfer permitted under (i) or (ii) above shall also comply with
Articles 10 or 11, to the extent applicable.
(c) An
Other Partner may Transfer all, or any part of his interest in the Partnership,
during life or at death, by sale, gift, bequest or otherwise to (i) his spouse;
(ii) his issue; (iii) a trust, partnership or similar entity, if 80% or more of
the beneficial interests therein are owned by the Other Partner and/or persons
described in clauses (i) or (ii) above; (iv) a corporation, if 80% of the issued
and outstanding stock is owned by the Other Partner and/or persons described in
clauses (i) or (ii) above; or (v) his estate , if the transferee agrees in
writing to be bound by this Agreement, provided,
however,
that, after the later of the date on which the Other Partner Transferring the
interest in the Partnership under this subparagraph (c) ceases to be either
employed by any Buyer Entity or serving in an material, advisory role to any
Buyer Entity, any person who acquires one or more interests in the Partnership
under this subparagraph (c) shall not be entitled to a vote of any kind on any
matter (the interest of such person shall not be counted for any purpose when
voting on any matter), including, without limitation, any action requiring the
approval of a Super-Majority of the Partners under Section
6.5
(d) A
Partner may transfer its Partnership Interest pursuant to Article 11 without
complying with Article 9 or 10 and Partner A may transfer its Partnership
Interest under Article 10 without complying with Article 9.
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9.3 Acquisition of an Interest
Conveyed to Another Without Authority. If any person acquires
a Partnership interest or becomes an assignee in violation of the terms of this
Agreement, as a result of an order of a court which the Partnership is required
by law to recognize, or if a Partner makes an unauthorized transfer or
assignment of a Partnership interest in violation of the terms of this
Agreement, which the Partnership is required to recognize, including a transfer
of a Partner's interest at death, the Partnership shall have the unilateral
option to acquire the interest of the transferee or assignee, or any fraction or
part thereof, upon the following terms and conditions:
(a) The
Partnership shall have the option to acquire the interest by giving notice to
the transferee or assignee of its intent to purchase within ninety (90) days
from the date it is finally determined that the Partnership is required to
recognize the transfer or assignment. The transferee or assignee
shall sell such interest to the Partnership if the option is exercised upon the
terms and conditions set forth herein. In the case of an
impermissible transfer at death, the transferee or assignee shall be deemed to
be the decedent's personal representative.
(b) Unless
the Partnership and the transferee or assignee agree otherwise, the purchase
price for the Partnership Interest, or any fraction to be acquired by the
Partnership, shall be its Fair Market Value, determined as of the last day of
the month immediately preceding the month in which notice is
delivered.
(c) Closing
of the sale shall occur at the principal office of the Partnership at 10 o'clock
a.m. on the first Tuesday of the month following the month in which the Fair
Market Value is determined.
(d) In
order to reduce the burden upon the resources of the Partnership, the
Partnership shall have the option, to be exercised in writing delivered at
closing, to pay its purchase money obligation in sixty (60) equal monthly
installments (or the remaining term of the Partnership if less than five (5)
years) with interest payable at the applicable federal rate for mid-term
obligations published by the United States Treasury Department. The
first installment shall be due and payable on the first day of the month
following closing, and subsequent monthly installments, with accrued interest,
shall be due and payable on the first day of each succeeding month until the
entire amount of the obligations is paid. The Partnership shall have
the right to prepay all or any part of the purchase money obligation at any time
without penalty.
9.4 Indemnity. If
a Partner shall, or shall attempt to, sell, assign, transfer, pledge, subject to
any security interest, or otherwise dispose of its Partnership interest (except
in a transaction permitted hereunder) without compliance with the requirements
of this Article 9, such Partner shall indemnify and hold harmless the other
Partners and the Partnership against and from any and all liabilities,
obligations, costs and expenses the other Partners or the Partnership may incur
as a result of such failure.
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9.5 Right of First
Refusal. In addition to the other limitations and restrictions
set forth in this Article 9, except as permitted by Section 9.2 hereof, no Other
Partner shall Transfer all or any portion of its interest in the Partnership
(the “Offered Interest”) unless such Partner (the “Selling Partner”) first
offers to sell the Offered Interest pursuant to the terms of this Section
9.5.
(a) No
Transfer may be made under this Section 9.5 unless the Selling Partner has
received a bona fide written offer (the “Purchase Offer”) from a Person (the
“Purchaser”) to purchase the Offered Interest for a purchase price (the “Offer
Price”) denominated and payable in United States dollars at closing or according
to specified terms, with or without interest, which offer shall be in writing
signed by the Purchaser and shall be irrevocable for a period ending no sooner
than the day following the end of the Offer Period, as hereinafter
defined.
(b) Prior
to making any Transfer that is subject to the terms of this Section 9.5, in
addition to giving the notice required by and otherwise complying with Article
10, the Selling Partner shall give to the Partnership and each Other Partner
written notice (the “Offer Notice”) which shall include a copy of the Purchase
Offer and an offer (the “Firm Offer”) to sell the Offered Interest to the Other
Partners and to the Partnership (the “Offerees”) for the Offer Price, payable
according to the same terms as (or more favorable terms than) those contained in
the Purchase Offer, provided that the Firm Offer shall be made without regard to
the requirement of any ▇▇▇▇▇▇▇ money or similar deposit required of the
Purchaser prior to closing, and without regard to any security (other than the
Offered Interest) to be provided by the Purchaser for any deferred portion of
the Offer Price.
(c) The
Firm Offer shall be irrevocable for a period of time (the “Offer Period”) ending
at 11:59 P.M., local time at the Partnership's principal place of business, on
the ninetieth day following the day of the Offer Notice.
(d) At
any time during the first sixty (60) days of the Offer Period, any Offeree who
is an Other Partner may accept the Firm Offer as to all or any portion of the
Offered Interest, by giving written notice of such acceptance to the Selling
Partner and the General Partner which notice shall indicate the maximum
interests that such Offeree is willing to purchase. In the event that
within the first sixty (60) days of the Offer Period, Offerees (“Accepting
Offerees”), in the aggregate, accept the Firm Offer with respect to all of the
Offered Interest, the Firm Offer shall be deemed to be accepted and the Selling
Partner shall comply with Article 10. Except as otherwise agreed by
the remaining Partners, the right of the Accepting Offerees to purchase the
interests covered by the Purchase Offer shall be allocated among the Accepting
Offerees in proportion to their relative percentage interests in the
Partnership. At any time after the sixtieth (60) day of the Offer
Period, the Partnership may accept the Firm Offer as to any portion of the
Offered Interest that has not been previously accepted by giving written notice
of such acceptance to the Selling Partner. In the event that
Accepting Offerees, including the Partnership, in the aggregate, accept the Firm
Offer with respect to all of the Offered Interest, the Firm Offer shall be
deemed to be accepted. If Offerees do not accept the Firm Offer as to
all of the Offered Interest during the Offer Period, the Firm Offer shall be
deemed to be rejected in its entirety.
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(e) In
the event that the Firm Offer is accepted, the closing of the sale of the
Offered Interest shall take place within thirty (30) days after the Firm Offer
is accepted or, if later, the date of closing set forth in the Purchase
Offer. The Selling Partner and all Accepting Offerees shall execute
such documents and instruments as may be necessary or appropriate to effect the
sale of the Offered Interest pursuant to the terms of the Firm Offer and this
Article 9. Any further transfer of the Offered Interest in the hands
of the Accepting Offerees shall be subject to the restrictions on transfer
contained in this Agreement, including without limitation Articles 10 and
11.
(f) If
the Firm Offer is not accepted in the manner herein above provided, the Selling
Partner may, subject to compliance with Article 10, sell the Offered Interest to
the Purchaser at any time within sixty (60) days after the last day of the Offer
Period, provided that such sale shall be made on terms no more favorable to the
Purchaser than the terms contained in the Purchase Offer and provided further
that such sale complies with other terms, conditions, and restrictions of this
Agreement that are applicable to sales of interests and are not expressly made
inapplicable to sales occurring under this Section 9.5. In the event
that the Offered Interest is not sold in accordance with the terms of the
preceding sentence, the Offered Interest shall again become subject to all of
the conditions and restrictions of this Section 9.5.
9.6 Required
Transfers. An Other Partner (and, in the case of subparagraphs
(c) and (d), any Person to which an Other Partner’s Partnership Interest has
been transferred under Section 9.2(c)) shall be required to transfer the
Partner’s Partnership Interest to the Partnership, or at the option of the
General Partner, to the Other Partners proportionately, or to a new
Limited Partner, for the "Purchase Price" (hereafter defined) upon the
occurrence of any of the following:
(a) the
entry of any order or decree of court incident to any proceeding for divorce,
child support, division of marital property or similar proceeding requiring a
transfer of all or any part of the Partner’s Partner Interest;
(b) attachment
or seizure in any legal proceedings of all or any part of the Partner’s Partner
Interest or entry of any charging order against a Partner’s Partnership Interest
which is not being duly contested by the Partner in good faith;
(c) a
material breach of this Agreement by the Partner;
(d) in
the case of an Employee Partner, the involuntary termination of employment with
the Partnership, MXL Operations and/or MXL Leasing. For purposes of
this provision, “involuntary termination” shall be termination of employment due
to (i) the employee’s failure, without leave or approval of the Partnership, MXL
Operations and/or MXL Leasing, to perform the employee’s duties reasonably
assigned, from time to time, to such employee by the Partnership, MXL Operations
and/or MXL Leasing, (ii) employee’s fraud, misappropriation, embezzlement,
willful misconduct, gross negligence, or any other acts in dereliction of
employee’s duties and responsibilities to the Partnership, MXL Operations and/or
MXL Leasing; (iii) employee’s conviction of any criminal offense involving
dishonesty or moral turpitude; (iv) employee’s willful conduct that exposes the
Partnership, MXL Operations and/or MXL Leasing to criminal liability (or
significant regulatory action) under the laws of the Commonwealth of
Pennsylvania or the United States; (v) employee’s violation of any law, rule or
regulation that jeopardizes the business of employer; (vi) employee’s misconduct
or negligence that is injurious to the Partnership, MXL Operations and/or MXL
Leasing; or (vii) any other cause which would normally and reasonably constitute
sufficient cause to terminate the employment of an employee in employee’s job
classification.
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Upon the
occurrence of any of the foregoing events, such transferring Partner's
Partnership Interest shall be deemed transferred, and thereafter the Partner or
deceased Partner shall no longer be entitled to any of the benefits of being a
Partner of the Partnership, and shall be merely a creditor thereof to the extent
of the Purchase Price. The Purchase Price shall be the Fair Market
Value of the Partnership Interest, as determined on the last day of the month
immediately preceding the occurrence of the applicable event giving rise to the
transfer. The Purchase Price may be paid pursuant to the terms of
Section 9.3(e) and closing for the transfer of the Partnership Interest shall
occur on the first Tuesday of the month following the month in which the Fair
Market Value is determined.
9.7 Restrictions.
(a) The
restrictions of this Article 9 shall not apply to any transfer pursuant to the
Put and Call Agreement or Article 11.
(b) The
purchase rights of the Partners under Section 9.5 shall be limited to the
non-selling Other Partners; provided that if such Other Partners and the
Partnership fail to exercise such rights and Partner A has given written notice
of its intent to exercise the rights granted thereunder, Partner A may exercise
such rights.
(c) To
the extent that Section 9.6 does not apply, after the later of the date on which
an Other Partner ceases to be either employed by any Buyer Entity or serving in
a material, advisory role to any Buyer Entity, the Other Partner shall not be
entitled to vote of any kind on any matter (the interest of such Other Partner
shall not be counted for any purpose when voting on any matter), including,
without limitation, any action requiring the approval of a Super-Majority of the
Partners under Section 6.5
ARTICLE
10
TAG ALONG
RIGHTS
10.1 Notice. Subject
to Section 10.6, prior to the end of the Holding Period, the Other Partners
agree that they shall not, directly or indirectly, sell or otherwise dispose of
any Partnership Interests of the Partnership unless the terms and conditions of
such sale or other disposition shall include an offer to Partner A by the third
party purchasing such shares to include, at the option of Partner A, the
purchase by said third party of Partner A’s Partnership Interests on the same
terms and conditions. In the event the Other Partners are selling
less than all of the Partnership Interests of the Partnership held by them, the
obligation to obtain an offer from the third party for Partner A’s Partnership
Interests under the previous sentence shall be limited to a percentage of its
Partnership Interests equal to the percentage of the total Partnership Interests
held by the Other Partners which are being sold or otherwise disposed of to said
third party.
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10.2 Acceptance. The
Other Partners, or any one or more of them, that intends to accept an offer to
sell or otherwise dispose of any of their Partnership Interests under Section
10.1 shall immediately give notice to Partner A. Such notice shall be
accompanied by a true and correct copy of the third party offer which identifies
the third party, the Partnership Interests the third party intends to purchase
or otherwise acquire from the Other Partners, the price and other terms and
conditions of the offer to the Other Partners and a binding commitment from the
third party to purchase Partner A’s Partnership Interest to the extent required
by Section 10.1 above. Partner A shall have fifteen (15) Business
Days to accept the third party offer with respect to Partner A’s Partnership
Interest. If Partner A accepts the offer, the sale and purchase
of Partner A’s Partnership Interest shall take place concurrently with the
related sale and purchase by the Other Partners. If Partner A does
not accept the offer within the time limit contained in this Section 10.2, all
rights of Partner A to sell its Partnership Interest to the third party shall be
deemed to have been waived; provided that said sale or other disposition of
Partnership Interests by the Other Partners takes place on the terms set forth
in the aforesaid notice within thirty (30) Business Days after the last day on
which Partner A could have accepted such third party offer. In the
event the third party shall amend its offer, Partner A shall receive a notice
disclosing such amendment and the offer required by Section 10.1 above shall be
amended identically and remain open for acceptance for fifteen (15) Business
Days from the date notice of such amendment is received by Partner
A.
10.3 Closing. If
Partner A shall have accepted the offer of the third party with respect to its
Partnership Interest under this Article 10, the sale of its Partnership Interest
and the other Partnership Interests being sold by the Other Partners shall take
place contemporaneously. If for any reason, the third party fails or
refuses to purchase Partner A’s Partnership Interest to the full extent required
to be purchased pursuant hereto, the Other Partners shall not sell or otherwise
dispose of any of their Partnership Interests.
10.4 Holding
Period. If one or more of the Other Partners are permitted by
this Article 10 to sell some or all of their Partnership Interests, in a
transaction which will not cause the Holding Period to end contemporaneously
with the consummation of such transaction, the Other Partner(s) may only sell
their Partnership Interests if the purchaser(s) thereof agree(s) in writing to
be bound by the terms of this Agreement.
10.5 Records. The
Partnership and its transfer agent are hereby authorized and directed to refuse
to record on the books of the Partnership or otherwise recognize for any purpose
any transfer of any Partnership Interests which does not comply with the terms
of this Article 10.
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10.6 Limitations. The
provisions of this Article 10 shall not be applicable to a sale or other
disposal of any Partnership Interests by the Other Partners (i) to one or more
Affiliates (providing that such Affiliates agree to be bound by the terms of
this Agreement as an Other Partner), (ii) in a transaction subject to Article 11
below.
ARTICLE
11
REGISTRATION
RIGHTS
11.1 Notice. The
Partnership shall notify Partner A at least fifteen (15) Business Days prior to
the filing of any registration statement under the Securities Act for a public
offering of securities of the Partnership (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Partnership) and will afford Partner A an opportunity to include in such
registration statement all or part of its Partnership
Interest. Such notice shall (i) offer Partner A the opportunity
to register such percentage of its Partnership Interest as it may request and
(ii) describe such securities and specify the form and manner and other relevant
facts involved in such proposed registration (including, without limitation, if
known, the price at which such securities are reasonably expected to be sold to
the public, whether or not such registration will be in connection with an
underwritten offering and, if so, the identity of the managing underwriter,
whether such underwritten offering will be pursuant to a “best efforts” or “firm
commitment” underwriting, and the amount of the underwriting discount reasonably
expected to be incurred in connection therewith). If Partner A
desires to include in any such registration statement all or part of its
Partnership Interests, it shall, within fifteen (15) Business Days after receipt
of the above-described notice from the Partnership, so notify the Partnership in
writing. Such notice shall state the percentage of its Partnership
Interest which Partner A requests to be included in such registration and its
intended method of disposition of its Partnership Interest. If
Partner A decides not to include all of its Partnership Interest in any
registration statement filed by the Partnership, it shall nevertheless continue
to have the right to include any of its Partnership Interest in any subsequent
registration statement or registration statements as may be filed by the
Partnership, all upon the terms and conditions set forth herein and the rights
contained in the Put and Call Agreement and Article 10 shall continue to apply
with respect to any Partnership Interest continued to be held by Partner
A.
11.2 Underwritten
Offering. If the registration statement under which Partner A
gives notice under this Article 11 is for an underwritten offering, Partner A’s
right to be included in a registration pursuant to this Article 11 shall be
conditioned upon its participation in the underwriting and its entering into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Partnership. Notwithstanding any other
provision of this Article 11, if the underwriter determines in good faith that
marketing factors require a limitation of the number of securities to be
underwritten (including the Partner A’s Partnership Interest), then the
Partnership shall so advise Partner A, and the number of securities that may be
included in the underwriting shall be allocated on a pro rata basis based on the
total percentage of Partnership Interests requested to be sold by Partner A and
the total percentage of the Partnership Interests requested to be sold by the
Partnership and the Other Partners. If Partner A disapproves of the
terms of any such underwriting, it may elect to withdraw therefrom by written
notice to the Partnership and the underwriter, delivered at least 10 Business
Days prior to the effective date of the registration statement. Any of its
Partnership Interest excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration.
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11.3 Termination. The
Partnership shall have the right to terminate or withdraw any registration
initiated by it under this Article 11 prior to the effectiveness of such
registration whether or not Partner A has elected to include securities in such
registration.
11.4 Expenses. All
expenses incurred in connection with any registration pursuant to Article 11
shall be borne by the Partnership, except Selling Expenses, which shall be borne
by the holders of the securities so registered pro rata on the basis of the
percentage of Partnership Interests so registered.
11.5 Registration. Whenever
registering any Partnership Interests, the Partnership shall, as expeditiously
as reasonably possible:
(a)
Prepare
and file with the SEC a registration statement with respect to such Partnership
Interests and use its commercially reasonable efforts to cause such registration
statement to become effective.
(b)
Prepare
and file with the SEC such amendments (including post-effective amendments and
supplemental opinions of counsel, if required) and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement for a commercially reasonable period.
(c)
Use its
commercially reasonable efforts to register and qualify the Partnership
Interests covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as Partner A shall reasonably request, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable Partner A to consummate the disposition of its Partnership
Interests in such jurisdictions.
(d)
Notify
Partner A, at any time when a prospectus relating to the Partnership Interests
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing.
(e)
Within a
reasonable time before each filing of the registration statement or any
amendment or supplement thereto with the SEC, furnish to Partner A’s counsel
copies of such documents proposed to be filed, which documents shall be subject
to the reasonable approval of such counsel, and further to provide such counsel
any financial or other records as shall be necessary for such counsel to assist
Partner A in exercising its due diligence with respect to the contents of the
registration statement.
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(f)
Use its
commercially reasonable efforts to prevent the issuance of any order suspending
the effectiveness of a registration statement and, if one is issued, immediately
notify Partner A of the receipt of such notice and use its commercially
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a registration statement at the earliest possible
moment.
(g)
Otherwise
use its commercially reasonable efforts to cooperate with the SEC and other
regulatory agencies and take all reasonable actions and execute and deliver or
cause to be executed and delivered all documents reasonably necessary to effect
the registration of any securities under this Agreement.
(h)
Provide a
transfer agent and registrar for all Partnership Interests not later than the
effective date of such registration statement.
(i)
If such
registration involves an underwritten offering, obtain and furnish a comfort
letter, dated the effective date of such registration statement, and the date of
the closing under the underwriting agreement, signed by the Partnership’s
independent public accountants and addressed to Partner A, in customary form and
covering such matters as are customarily covered by comfort letters by
independent public accountants in such public offerings and such other financial
matters as Partner A may reasonably request.
(j)
If such
registration involves an underwritten offering, furnish a legal opinion of the
Partnership’s counsel, dated the date of the closing under the underwriting
agreement and addressed to Partner A, with respect to the registration
statement, each amendment and supplement thereto, the prospectus included
therein (including the preliminary prospectus) and other documents relating
thereto, in customary form and covering such matters as are customarily covered
by legal opinions of issuers’ counsel in such public
offerings.
(k)
During
the period when a prospectus is required to be delivered under the Securities
Act, promptly file all documents required to be filed with the SEC pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act.
11.6 Condition
Precedent. It shall be a condition precedent to the
obligations of the Partnership to take any action pursuant to Article 11 that
Partner A shall furnish to the Partnership such information regarding Partner A
and its Partnership Interests as shall be required to effect the registration of
its Partnership Interests.
11.7 Violations. If
Partner A’s Partnership Interests are included in a registration statement under
this Article 11:
(a)
To the
extent permitted by law, the Partnership will indemnify and hold harmless
Partner A, and its officers, directors, employees and agents, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act, or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions, or violations (collectively a “Violation”) by the
Partnership: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto; (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; or (iii) any Violation or alleged Violation by the
Partnership of the Securities Act, the Exchange Act, or any state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange
Act, or any state securities law in connection with the offering covered by such
registration statement; and, subject to subsection (c) below, the Partnership
will pay as incurred by Partner A, its officers, directors, employees or agents
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action.
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(b)
To the
extent permitted by law, Partner A will, if its Partnership Interest is included
in the securities as to which such registration is being effected, indemnify and
hold harmless the Partnership, and its general partner, officers, directors,
employees and agents, if any, who control the Partnership within the meaning of
the Securities Act, against any losses, claims, damages, or liabilities (joint
or several) to which the Partnership or any such person may become subject under
the Securities Act, the Exchange Act, or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by Partner A specifically for use
in connection with such registration; and, subject to subsection (c) below,
Partner A will pay as incurred any legal or other expenses reasonably incurred
by the Partnership or any such person in connection with investigating or
defending any such loss, claim, damage, liability, or action if it is judicially
determined that there was such a Violation; provided that in no event shall any
indemnity obligation of Partner A under this subsection (b) exceed the net
proceeds received by Partner A from the sale of its Partnership Interests
pursuant to such registration statement.
(c)
Promptly
after receipt by an indemnified party under this Section 11.7 of notice of the
commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 11.7, deliver to the indemnifying party a written
notice of the commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 11.7, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 11.7.
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(d)
If the
indemnification provided for in this Section 11.7 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any losses, claims, damages, or liabilities referred to herein, the indemnifying
party, in lieu of indemnifying such indemnified party thereunder, shall to the
extent permitted by applicable law contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage, or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the Violation(s) that resulted in such loss, claim, damage, or
liability, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties’ relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission;
provided, that in no event shall any contribution by Partner A hereunder exceed
the net proceeds from the offering received by Partner A. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 11.7(e) were determined by pro rata allocation or any other method of
allocation which does not take into account the equitable consideration referred
to in this subsection (d).
(e)
The
obligations of the Partnership and Partner A under this Section 11.7 shall
survive completion of any offering of any Partnership Interest in a registration
statement and the termination of this Agreement. No indemnifying
party, in the defense of any such claim or litigation, shall, except with the
consent of each indemnified party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
ARTICLE
12
REMOVAL,
RESIGNATION OF GENERAL PARTNER,
SUCCESSOR
GENERAL PARTNER
12.1 Involuntary Removal of a
General Partner.
(a) The
General Partner shall automatically be deemed to have been removed as General
Partner without action by the other Partners if the General Partner dissolves or
a final adjudication of Bankruptcy is rendered against the General
Partner.
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(b) The
General Partner may be removed by the action of at least a Super-Majority of the
Partners only for specified conduct constituting gross negligence or willful
misconduct, and such action shall effectuate the removal of such General Partner
until such time as a court of competent jurisdiction shall determine that such
specified conduct did not constitute gross negligence or willful
misconduct.
(c) The
interest of a General Partner who is removed shall be treated as provided in
Section 12.4 hereof.
12.2 Resignation of a General
Partner. The General Partner may resign from its duties and
obligations as a General Partner at any time; however, the General Partner may
not withdraw from the Partnership and hereby expressly covenants and agrees not
to withdraw. Any Partnership interest retained by the resigning
general Partner after its resignation shall be treated as provided in Section
12.4.
12.3 Sole Remaining General
Partner. The removal or resignation under Sections 12.1 and
12.2 of the sole remaining General Partner shall cause the dissolution and
liquidation of the Partnership, unless within ninety (90) days of such event, a
Super-Majority of the Partners remaining agree in writing to continue the
business of the Partnership and a replacement General Partner is substituted or
Partner A takes Action to Continue the Partnership. A General Partner
who resigns and causes a dissolution, or who withdraws, shall be liable for
damages under state law.
12.4 Status of Former General
Partner. The Partnership Interest owned by a General Partner
who involuntarily withdraws as provided in Section 12.1 or resigns as provided
in Section 12.2, which is not sold or otherwise transferred shall be converted
to a Limited Partner interest and the former General Partner (or its
representative or trustee) shall have the same rights and obligations of a
Limited Partner.
ARTICLE
13
GENERAL
PROVISIONS
13.1 Power of Attorney. To
facilitate the simple operation of the Partnership’s business and to avoid
frustration of the purposes of the Partnership by Limited Partners refusing to
cooperate to enforce this Agreement, the Limited Partners hereby make,
constitute and appoint the General Partner and any additional or successor
general partner, as the agent and attorney-in-fact for each Partner with power
and authority to act in their names and on their behalf in the execution of
documents and, where necessary or appropriate, acknowledgment and filing of
documents including, without limitation, this Agreement and the Certificate,
including all amendments duly adopted thereto; any other document or instrument
which may be required to be filed by the Partnership under the laws of any state
or by any governmental agency or which the General Partner otherwise deems it
advisable to file; any document or agreement which the General Partner may enter
into on behalf of the Partnership which the General Partner deems advisable in
accordance with the authority of the General Partner as provided in this
Agreement; any documents which may be required to effect the continuation of the
Partnership, the admission of an additional or substituted Partner, or the
dissolution and termination of the Partnership, provided such continuation,
admission, or dissolution and termination are in accordance with the terms of
this Agreement; any documents required to obtain or settle any loan; any
documents which may be required to transfer any Partnership assets; and to do
any and all other acts on behalf of such Partners as are consistent with the
terms of this Agreement. This power of attorney is coupled with an
interest, is irrevocable and survives a Partner’s
incompetency. Further, this power of attorney may be exercised by the
General Partner or any other duly appointed agent by a facsimile signature or by
listing all of the Limited Partners executing the instrument with a signature of
the General Partner or other agent as the attorney-in-fact for all of them and
survives the assignment of a Partner’s interest and empowers the General Partner
to act to the same extent for such assignee. Notwithstanding the
foregoing, the General Partner shall not be authorized to exercise any authority
under this Section 13.1 without the consent of the Limited Partners and/or
Partner A to the extent that such consent is required by this Agreement or to
the extent such exercise of authority could reasonably result in personal
liability for any such Partner.
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13.2 Binding Effect and Benefit
of This Agreement. This Agreement shall be binding upon, and
shall inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns, as the case may be.
13.3 Certificates,
etc. At the expense of the Partnership, the Partners shall
promptly have prepared, executed and filed or recorded all legally required
fictitious name or other applications, registrations, publications, certificates
and affidavits for filing with the proper governmental authorities and have
arranged for the proper advertisement, publication and filing of record
thereof.
13.4 Notices,
etc. Except as otherwise expressly provided herein, all
notices which are required or contemplated by this Agreement shall be in
writing. Delivery of such notices shall be deemed to be made when the
same are either personally served upon the person entitled thereto or sent by
telecopy (fax) to such person (with receipt acknowledged by the person receiving
such telecopy) or three (3) days after being deposited in the mails, by
certified or registered mail, with postage prepaid, addressed to such person at
its mailing address as shown on the records of the Partnership as changed by
notice to parties hereto in accordance herewith.
13.5 Integration;
Termination. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof, and
supersedes all prior agreements, writings, documents, instruments, information
memoranda, etc. No termination, revocation or waiver of this
Agreement shall be binding unless in writing and signed by the General Partner,
a Super-Majority of the Limited Partners and, where required, Partner
A. Any amendment executed by the General Partner, a Super-Majority of
the Limited Partners and, where required, Partner A shall be binding on all
Partners.
13.6 Interpretation. This
Agreement shall be interpreted and construed in accordance with the laws of the
Commonwealth of Pennsylvania without regard to its choice of laws or conflicts
of laws provisions, but shall not be construed against the drafter of this
Agreement. As used in this Agreement, the masculine gender shall
include the feminine or neuter gender and the plural shall include the singular
wherever appropriate. The titles of the Articles and Sections herein
have been inserted as a matter of convenience of reference only and shall not
control or affect the meaning or construction of any of the terms or provisions
hereof. The word “including” is intended to be used in its most
expansive understanding, is not exclusive of any other possibility,
notwithstanding any contrary interpretation of statute or common law, and shall
be construed to mean “including, without limitation.”
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13.7 Counterparts. The
parties hereto may execute this Agreement and any document from time to time
executed in connection herewith in any number of counterparts, and by facsimile
or electronic transmission, each of which, when executed and delivered, shall be
an original; but all such counterparts shall constitute one and the same
instrument.
13.8 Severability of
Provisions. Each provision of this Agreement shall be
considered severable. If for any reason any provision or provisions
hereof are determined to be illegal or invalid, such illegality or invalidity
shall not impair the operation of or affect those portions of this Agreement
that are valid and this Agreement shall be construed in all respects as if such
invalid or illegal provision was omitted.
13.9 Calculations and
Computations. All calculations and computations required or
contemplated hereunder shall be performed by the Partnership’s independent
public accountants, whose determinations absent manifest error shall be
conclusive and binding on all parties.
13.10 Matters Relating to
Disputes. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
its principles of choice of laws or conflict of laws. The Partnership
and each Partner each agree that the venue for any dispute arising between the
parties regarding this Agreement shall be binding arbitration conducted by the
American Arbitration Association (AAA) in Philadelphia, Pennsylvania in
accordance with the Commercial Arbitration rules of the American Arbitration
Association. All disputes between the parties hereto shall be
determined solely and exclusively by arbitration in accordance with the
Commercial Rules then in effect of the American Arbitration Association, or any
successors hereto, in Philadelphia, Pennsylvania, unless the parties otherwise
agree in writing. The parties shall jointly select an
arbitrator. In the event the parties fail to agree upon an arbitrator
within ten (10) days, then each party shall select a party arbitrator within (7)
days and such arbitrators shall then select a third arbitrator to serve as the
sole arbitrator, provided that if either party through their party arbitrator
fails to select an arbitrator within seven (7) days, or the parties through
their party arbitrator fail to agree upon a sole arbitrator within seven (7)
days of appointment, such arbitrator shall be selected by the AAA upon
application of either party. Judgment upon the award of the agreed
upon arbitrator or the arbitrator selected by the AAA, as the case may be, shall
be binding and shall be entered into by a court of competent
jurisdiction. EACH PARTY HEREBY WAIVES THE RIGHT TO SUBMIT ANY
DISPUTE, CLAIM OR CAUSE OF ACTION THAT IT MAY HAVE AGAINST THE OTHER PARTY UNDER
THIS AGREEMENT TO A PUBLIC TRIBUNAL FOR JURY OR NON-JURY TRIAL, PROVIDED THAT
JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION THEREOF.
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IN WITNESS WHEREOF, the parties have
caused this Agreement to be executed as of the date set forth at the head
hereof.
[The remainder of this page is
intentionally blank. Signatures on next page.]
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| ATTEST/WITNESS: | GENERAL PARTNER: | ||||
| MXL GP, LP | |||||
|
/s/ ▇▇▇
▇▇▇▇▇▇▇▇
|
By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, authorized manager | |||||
| LIMITED PARTNERS: | |||||
| /s/ ▇▇▇ ▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||||
| /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ Holdings, LLC | |||||
|
/s/
illegible
|
By: |
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|||
| MXL Industries, Inc. | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
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The
following schedule to the Limited Partnership Agreement of MXL Realty, LP is
omitted from this filing pursuant to Item 601(b)(2) of Regulation
S-K:
Schedule
A, listing the general and limited partners of MXL Realty, LP and their
percentage partnership interests therein
The
registrant agrees to furnish supplementally a copy of the omitted schedule to
the Securities and Exchange ommission upon request.