Exhibit 4
LIMITED PARTNERSHIP AGREEMENT
of
▇▇▇▇▇▇ ASSOCIATES II, L.P.
THE INTERESTS OF THIS PARTNERSHIP HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE TRANSFERRED OR ASSIGNED
IN VIOLATION OF THE PROVISIONS THEREOF.
IN ADDITION, TRANSFERS OF THE INTERESTS OF
THIS PARTNERSHIP ARE RESTRICTED AS PROVIDED
IN THIS AGREEMENT.
Dated as of February 6, 1998
Prepared by:
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇
TABLE OF CONTENTS
Page
1. DEFINITIONS..........................................................1
1.1 "Act".......................................................1
1.2 "Agreement".................................................1
1.3 "Applicable NACCO Class A Closing Price Average"............1
1.4 "Arbitrable Dispute"........................................1
1.5 "Authorized Transferee".....................................1
1.6 "Call Notice"...............................................1
1.7 "Call Option"...............................................1
1.8 "Capital Account"...........................................1
1.9 "Capital Contributions".....................................2
1.10 "Certificate"...............................................2
1.11 "Charitable Organization"...................................2
1.12 "Code"......................................................2
1.13 "Entity"....................................................2
1.14 "Fair Market Value".........................................2
1.15 "Family Holder".............................................2
1.16 "Family Group"..............................................2
1.17 "Family Member".............................................2
1.18 "Final Appraiser"...........................................3
1.19 "Final Valuation"...........................................3
1.20 "First Appraised Value".....................................3
1.21 "First Appraiser"...........................................3
1.22 "General Partnership Interest"..............................3
1.23 "General Partner(s)"........................................3
1.24 "Independent Appraiser".....................................3
1.25 "Independent Valuation".....................................3
1.26 "Initial Limited Partners"..................................3
1.27 "Initial Value".............................................4
1.28 "Limited Partner"...........................................4
1.29 "Limited Partnership Interest"..............................4
1.30 "Managing Partner"..........................................4
1.31 "NACCO".....................................................4
1.32 "NACCO Class A Shares"......................................4
1.33 "NACCO Class B Shares"......................................4
1.34 "NACCO Stockholders' Agreement".............................4
1.35 "NACCO Restated Certificate"................................4
1.36 "Net Operating Cash Flow"...................................4
1.37 "Net Income" or "Net Loss"..................................4
1.38 "Objecting Party"...........................................5
1.39 "Offered Interests".........................................5
1.40 "Option Interests"..........................................5
1.41 "Original Holders"..........................................5
1.42 "Outside Partner"...........................................5
1.43 "Outstanding Remaining Interests"...........................5
1.44 "Partner(s)"................................................5
1.45 "Partner Appraised Value"...................................5
1.46 "Partnership"...............................................5
1.47 "Partnership Interest"......................................5
1.48 "Partnership Percentage"....................................5
1.49 "Partnership Property"......................................7
1.50 "Person"....................................................7
1.51 "Proportionate Part"........................................7
1.52 "Purchase Price"............................................7
(a) Initial Value......................................7
(b) Appraised Value....................................7
(c) Mutually Agreed Upon Purchase Price................8
(d) Cooperation with Appraisers........................8
1.53 "Purchase Right"............................................8
1.54 "Qualified Fiduciary".......................................8
1.55 "Remaining Interests".......................................8
1.56 "Seller's Notice"...........................................8
1.57 "Selling Partner"...........................................8
1.58 "Starting Date".............................................9
1.59 "Transfer"..................................................9
1.60 "Valuation Notice"..........................................9
2. FORMATION, NAME, PURPOSES, POWERS AND TERM...........................9
2.1 Formation...................................................9
2.2 Name and Principal Place of Business........................9
2.3 Purposes and Powers.........................................9
2.4 Term.......................................................11
2.5 Registered Agent...........................................11
3. REPRESENTATIONS AND WARRANTIES......................................11
3.1 Validity of Agreement......................................11
3.2 No Violation of Material Instruments.......................11
4. CAPITAL.............................................................11
4.1 Initial Contributions......................................11
4.2 Additional Contributions...................................12
4.3 Capital Accounts...........................................12
4.4 Allocation of Net Income and Net Loss......................13
4.5 Distributions..............................................13
4.6 No Right to Return of Capital..............................14
5. MANAGEMENT..........................................................14
5.1 Management of Partnership Business.........................14
5.2 Management of Partnership Property Consisting of
NACCO Stock..............................................15
5.3 Election of Managing Partner...............................15
5.4 Compensation of Managing Partner...........................16
5.5 Tax Matters................................................16
5.6 Limitation of Liability....................................17
5.7 Right to Indemnification...................................17
6. BOOKS, AUDITS AND FISCAL MATTERS....................................18
6.1 Partnership Books..........................................18
6.2 Fiscal Year................................................18
7. TRANSFER OF PARTNERSHIP INTERESTS...................................18
7.1 Securities Laws............................................18
7.2 Restriction on Transfers...................................18
7.3 Unrestricted Transfers.....................................19
7.4 Purchase Right.............................................19
7.5 Call Options to Purchase Partnership Interests.............20
7.6 Allocation of Offered Interests / Option Interests.........21
(a) Allocation to Original Holders of
Offered Interests...............................21
(b) Allocation among Family Groups....................21
(c) Allocation to the Partnership.....................22
(d) Allocation of Partnership Interests among Family
Group Members...................................22
7.7 Terms of Sale..............................................22
7.8 Closing....................................................23
7.9 Legal Requirements.........................................24
8. CODE SECTION 754 ELECTION...........................................24
9. DISSOLUTION.........................................................24
9.1 Dissolution and Termination................................24
9.2 Continuation of Business...................................25
10. POWER OF ATTORNEY...................................................25
10.1 Grant of Power.............................................25
10.2 Irrevocable Nature.........................................25
10.3 Further Assurances - Power of Attorney.....................26
10.4 Transfer of Partnership Interests..........................26
11. GENERAL PROVISIONS..................................................26
11.1 Obtaining Partner Approvals of Partnership Actions.........26
11.2 Arbitration................................................26
11.3 Notices....................................................26
11.4 Waiver of Right to Partition...............................27
11.5 Binding Effect.............................................27
11.6 Headings...................................................27
11.7 Entire Agreement...........................................27
11.8 Governing Law..............................................27
11.9 Counterparts...............................................27
11.10 Pronouns...................................................27
11.11 Remedies Cumulative........................................27
11.12 Further Assurances.........................................27
11.13 Severability...............................................27
▇▇▇▇▇▇ ASSOCIATES II, L.P.
LIMITED PARTNERSHIP AGREEMENT
THIS LIMITED PARTNERSHIP AGREEMENT is made and entered into as
of the 6th day of February, 1998, by and among ▇▇▇▇▇▇ MANAGEMENT, INC., a
Georgia corporation, as General Partner, and the Persons set forth on Schedule
A, as amended from time to time, as Limited Partners. In consideration of the
mutual promises, covenants and agreements set forth herein, the Partners hereby
agree as follows:
1. DEFINITIONS. The following terms used in this Agreement shall, unless
otherwise expressly provided herein or the context indicates otherwise, have the
meanings set forth below.
1.1 "Act" means the Delaware Revised Uniform Limited Partnership Act as
set forth in Del. Code ▇▇▇. Tit. 6 " 17-101 to 17-1111, as the same is presently
in effect and may be hereafter amended.
1.2 "Agreement" means this Limited Partnership Agreement, as it may be
amended from time to time.
1.3 "Applicable NACCO Class A Closing Price Average" shall mean the
average of the closing prices of the NACCO Class A Shares on the New York Stock
Exchange (or on the principal national securities exchange or automated
quotation system of national securities dealers on which the NACCO Class A
Shares may then be traded) on the five trading dates preceding the relevant
Starting Date as reported in The Wall Street Journal (or, if such periodical is
not then published, the most comparable periodical then being published).
1.4 "Arbitrable Dispute" means any dispute arising in connection with
this Agreement.
1.5 "Authorized Transferee" shall mean any Family Member of a Family
Group who (a) is a "Permitted Transferee" under Article FOURTH, Section 4 of the
NACCO Restated Certificate, (b) is a "Participating Stockholder" under Section
1.12 of the NACCO Stockholders Agreement, and (c) has executed and delivered to
the Partnership a counterpart of this Agreement agreeing to be subject to the
restrictions and obligations of a Partner hereunder and to hold all Partnership
Interests then owned or later acquired by such Family Member in accordance with
the terms of this Agreement.
1.6 "Call Notice" shall have the meaning set forth in Section 7.5(a).
1.7 "Call Option" shall have the meaning set forth in Section 7.5.
1.8 "Capital Account" means, with respect to any Partner, the Capital
Account established for such Partner pursuant to Section 4.3.
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1.9 "Capital Contributions" means, for each Partner, the amount of
cash, promissory notes and the value of any property (other than cash), as
determined by agreement of the Partners, by independent appraisal, or as
otherwise provided in this Agreement, contributed from time to time to the
Partnership by a Partner.
1.10 "Certificate" means the Certificate of Limited Partnership of the
Partnership in substantially the form required by the Act, to be executed
together with this Agreement and filed pursuant to the Act.
1.11 "Charitable Organization" means any organization contributions to
which are deductible for federal income, estate or gift tax purposes. A
Charitable Organization shall be an Outside Partner unless prior to the Transfer
of Shares to such Charitable Organization, the Managing Partner has designated
such Charitable Organization as eligible to be considered a Family Member, in
which event a Charitable Organization so designated shall, with respect to the
Partnership Interests transferred to it by any Partner, be considered a Family
Member of and a member of the Family Group of such Partner.
1.12 "Code" means the Internal Revenue Code of 1986, as amended.
References to specific sections of the Code shall be deemed to include
references to corresponding provisions of any succeeding internal revenue law of
the United States of America.
1.13 "Entity" means any general partnership, limited partnership,
corporation, limited liability company, joint venture, estate, trust, business
trust or association.
1.14 "Fair Market Value" means the price at which the property being
valued would change hands between a willing buyer and a willing seller, neither
being under any compulsion to buy or sell and both being reasonably informed of
the relevant factors and in light of the circumstances and prospects surrounding
the business of the Partnership. A determination of the Fair Market Value of
Partnership Interests shall take into consideration appropriate discounts for
lack of marketability and minority interest related to such Partnership
Interests, but will not take into consideration the affect of any liquidity
provided by the provisions of Section 7.4. A determination of the Fair Market
Value of Partnership Property shall not take into consideration any NACCO Class
A Shares or NACCO Class B Shares not owned by the Partnership.
1.15 "Family Holder" shall mean a Partner who is, and only so long as
such Partner is, an Initial Limited Partner or a Family Member.
1.16 "Family Group" shall mean an Initial Limited Partner and his
Family Members so long as such Initial Limited Partner or any such Family
Members own any Partnership Interests.
1.17 "Family Member" shall mean the spouse or surviving spouse of an
Initial Limited Partner, any descendant of an Initial Limited Partner, a spouse
or surviving spouse of any such descendant, or any Qualified Fiduciary.
Notwithstanding anything to the contrary contained herein:
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(a) the surviving spouse of an Initial Limited Partner or of a
descendent of an Initial Limited Partner shall cease to be a Family Member upon
the remarriage of such person to other than an Initial Limited Partner or
descendent of an Initial Limited Partner; and
(b) the spouse of an Initial Limited Partner or of a
descendent of an Initial Limited Partner shall cease to be a Family Member upon
legal separation, divorce or dissolution of such spouse's marriage to said
Initial Limited Partner or descendent; and
(c) a Qualified Fiduciary shall cease to be a Family Member
from and after any event or lapse of time which causes such fiduciary to no
longer qualify as a Qualified Fiduciary as defined in Section 1.54.
1.18 "Final Appraiser" shall have the meaning set forth in Section
1.52(b).
1.19 "Final Valuation" shall have the meaning set forth in Section
1.52(b).
1.20 "First Appraised Value" shall have the meaning set forth in
Section 1.52(b).
1.21 "First Appraiser" shall have the meaning set forth in Section
1.52(b).
1.22 "General Partnership Interest" means any Partnership Interest
which is directly traceable to and is derived from a capital contribution to the
Partnership for an interest in the Partnership as a General Partner. The holder
of a General Partnership Interest shall have all of the rights and obligations
of a General Partner under this Agreement to the extent such Person's
Partnership Interests constitute General Partnership Interests.
1.23 "General Partner(s)" means ▇▇▇▇▇▇ MANAGEMENT, INC. (to the extent
that it holds a General Partnership Interest), and any successor in interest to
the business and assets of ▇▇▇▇▇▇ MANAGEMENT, INC., and any additional General
Partners admitted pursuant to the terms of this Agreement and their successors
and assigns as permitted by this Agreement. Any successor or assign of a General
Partner's Partnership Interest who is admitted as a Partner pursuant to this
Agreement shall become a General Partner to the extent that such successor or
assign holds General Partnership Interests. A Partner may own both Limited
Partnership Interests and General Partnership Interests. A Partner's acquisition
of a General Partnership Interest shall not convert such Partner's Limited
Partnership Interests into General Partnership Interests. A Partner's
acquisition of a Limited Partnership Interest shall not convert such Partner's
General Partnership Interests into Limited Partnership Interests.
1.24 "Independent Appraiser" shall have the meaning set forth in
Section 1.48.
1.25 "Independent Valuation" shall have the meaning set forth in
Section 1.48.
1.26 "Initial Limited Partners" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
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1.27 "Initial Value" shall have the meaning set forth in Section
1.52(a).
1.28 "Limited Partner" means any of the Initial Limited Partners, any
additional Limited Partners admitted pursuant to the terms of this Agreement,
and their successors and assigns to the extent they hold Limited Partnership
Interests.
1.29 "Limited Partnership Interest" means any Partnership Interest
which is directly traceable to and is derived from a capital contribution to the
Partnership for an interest in the Partnership as a Limited Partner. The holder
of a Limited Partnership Interest shall have all of the rights and obligations
of a Limited Partner under this Agreement to the extent such Person's
Partnership Interests constitute Limited Partnership Interests.
1.30 "Managing Partner" means the Person or Persons Elected Managing
Partner pursuant to Section 5.3 hereof, or any Person or Persons substituted
therefor or succeeding thereto.
1.31 "NACCO" means NACCO Industries, Inc., a Delaware corporation.
1.32 "NACCO Class A Shares" means shares of Class A Common Stock, par
value $1.00 per share, of
NACCO.
1.33 "NACCO Class B Shares" means shares of Class B Common Stock, par
value $1.00 per share, of NACCO.
1.34 "NACCO Stockholders' Agreement" means the Stockholders' Agreement
dated as of March 15, 1990 by and among the Participating Stockholders, NACCO
and Ameritrust Company National Association, a national banking association, as
depository, as amended from time to time.
1.35 "NACCO Restated Certificate" means the Restated Certificate of
Incorporation of NACCO, as amended from time to time.
1.36 "Net Operating Cash Flow" means the net cash flow to the
Partnership resulting from ownership and operation of the Partnership Property,
plus any other items of income received in cash by the Partnership less (i) all
debts and expenses paid in the operation of the Partnership, (ii) less any
reserves which the Managing Partner deems reasonably necessary for the operation
of the Partnership, and (iii) less all proceeds which are (A) received by the
Partnership from the Transfer of Partnership Property, and (B) used to purchase
other Partnership Property.
1.37 "Net Income" or "Net Loss" means the net income or net loss (as
appropriate) of the Partnership for a particular calendar year or interim period
of less than twelve (12) complete months, as determined in accordance with
accounting principles consistently applied on a cash basis (unless applicable
laws shall require use of the accrual method). Such determination shall include,
without limitation, depreciation, amortization, accelerated cost recovery, and
other
4
deductions or credits against tax allowed by the Code. Net Income or Net Loss is
a financial accounting concept and, to the extent of changes in value following
any in kind Capital Contribution, is also intended to be a tax accounting
concept (to the maximum extent that financial and tax accounting concepts may
overlap). The determination of Net Income or Net Loss shall not take into
account special allocations required by Section 704(c) of the Code with respect
to any in kind Capital Contribution.
1.38 "Objecting Party" shall have the meaning set forth in Section
1.52(a).
1.39 "Offered Interests" shall have the meaning set forth in Section
7.4(a).
1.40 "Option Interests" shall have the meaning set forth in Section
7.5.
1.41 "Original Holders" shall have the meaning set forth in Section
7.6(a).
1.42 "Outside Partner" means a Partner, other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who
is not then a member of a Family Group, including, without limitation, a Partner
who has ceased to be a Family Member pursuant to the terms of Sections 1.17(a),
1.17(b) or 1.17(c).
1.43 "Outstanding Remaining Interests" shall have the meaning set forth
in Section 7.6(b)(iii).
1.44 "Partner(s)" means any General Partners and any Limited Partners.
1.45 "Partner Appraised Value" shall have the meaning set forth in
Section 1.48.
1.46 "Partnership" means ▇▇▇▇▇▇ ASSOCIATES II, L.P., a limited
partnership organized pursuant to this Agreement under the provisions of the Act
and the laws of the State of Delaware and any successor partnership continuing
the business of ▇▇▇▇▇▇ ASSOCIATES II, L.P. pursuant to Section 9.
1.47 "Partnership Interest" means the percentage ownership share of
each Partner in the capital of the Partnership, whether as a Limited Partner or
as a General Partner, which percentage at any particular time shall be deemed to
equal the percentage which such Partner's Capital Account balance (if positive)
bears to the sum of all positive Capital Account balances of the Partners at
such time. In the event that a Partner's Capital Account balance is zero or is a
negative number, such Partner's Percentage Interest shall be deemed to be zero.
1.48 "Partnership Percentage" means the percentage share of each
Partner in the Net Income or Net Loss of the Partnership. The Partners' initial
Partnership Percentages shall be proportionate to the Partners' initial Capital
Contributions to the Partnership. Thereafter, such Partnership Percentages shall
be adjusted only to reflect a disproportionate Capital Contribution by one or
more Partners or a disproportionate distribution to one or more Partners, with
disproportion being determined in accordance with Sections 4.2 and 4.5. Such
adjustments shall be made based upon the Partnership Percentages determined as
set forth below (whether such
5
determination is made by the Managing Partner in determining the Partnership
Valuation, an objecting Partner in determining the Partner Appraised Value, or
an Independent Appraiser in determining the Independent Valuation):
(a) First, the Fair Market Value of the Partnership Property
immediately before the disproportionate Capital Contribution or
distribution will be determined;
(b) Second, the difference between the aggregate value of the
Partnership Property and the total of the Partnership debt will be
allocated among the Partners in proportion to the Partnership
Percentages in effect immediately before the disproportionate Capital
Contribution or distribution;
(c) Third, each Partner's Capital Contribution at the time of
the disproportionate Capital Contribution will be added to, and each
Partner's distribution at the time of the disproportionate distribution
will be subtracted from, that Partner's allocable share of the net
value of the Partnership Property immediately before the
disproportionate Capital Contribution or distribution; and
(d) Finally, each Partner's sum or difference determined under
(c), above, will be expressed as a percentage of the aggregate sums or
differences of all Partners determined under (c), above.
The Managing Partner, based upon such considerations as the
Managing Partner, in its sole discretion, determines to be relevant to such
valuation, shall determine the Fair Market Value of the Partnership Property and
the resulting Partnership Percentages pursuant to the fourth sentence of this
Section (such valuation and resulting Partnership Percentages being hereafter
referred to as the "Partnership Valuation"). If a Partner objects in writing to
the Partnership Valuation, such Partner may, at its sole cost and expense and
within fourteen (14) days from the date of such written objection, engage an
appraiser to determine within 30 days of such appointment the Fair Market Value
of the Partnership Property and the resulting Partnership Percentages in
accordance with the fourth sentence of this Section (the "Partner Appraised
Value"). If the Partner Appraised Value is at least eighty percent (80%) of the
Initial Value and less than or equal to one hundred twenty percent (120%) of the
Initial Value, then the Partnership Percentages shall be based upon the average
of the Partnership Valuation and the Partner Appraised Value. If the Partner
Appraised Value is less than eighty percent (80%) of the Initial Value or more
than one hundred twenty percent (120%) of the Initial Value, then the Managing
Partner and the Partner(s) objecting to the Partnership Valuation shall, within
fourteen (14) days from the date of the Partner Appraised Value, mutually agree
on an appraiser (the "Independent Appraiser"). The cost of the Independent
Appraiser shall be borne equally by the Partnership and the Partner(s) objecting
to the Partnership Valuation. The Independent Appraiser shall determine within
14 days after its appointment the Fair Market Value of the Partnership Property
and the resulting Partnership Percentages pursuant to the fourth sentence of
this Section (such valuation and resulting Partnership Percentages being
hereafter referred to as the "Independent Valuation"), but such Independent
Valuation shall be not less than the smaller of the Partnership Valuation and
the
6
Partner Appraised Value nor greater than the larger of the Partnership Valuation
and the Partner Appraised Value. The Independent Valuation as so determined
shall be binding upon the Partnership and each of the Partners. The Partnership
shall cooperate in assisting the appraisers in conducting the foregoing
appraisals, including providing reasonable access to the books and records of
the Partnership and to such other information as the appraisers reasonably
request in connection with such determinations; provided, however, that nothing
in this Agreement shall require the Partnership to disclose privileged or
proprietary information; and provided further, that the Partnership may require
such appraisers to enter into such confidentiality and non-disclosure agreements
as the Managing Partner reasonably believes to be necessary to protect the
interests of the Partnership and its Partners. The Managing Partner may by a
majority vote of its Board of Directors establish a disproportionate monthly or
other periodic draws during the calendar year but any such disproportionate
draws shall not be regarded as disproportionate distributions if compensating
distributions, determined with or without interest in the discretion of the
Managing Partner, are made by the end of March of the following calendar year so
that the periodic draws and compensating distributions in the aggregate are
proportionate. A successor or assign of a Partner shall succeed to that portion
of the predecessor Partner's Partnership Percentage which is assigned or
otherwise transferred to that successor or assign in accordance with the
provisions of Section 7.
1.49 "Partnership Property" means any property, real, personal or
mixed, or any interest therein or appurtenant thereto which may be owned or
acquired by the Partnership.
means any individual, estate, trust, corporation, partnership, limited
liability company, joint venture, unincorporated organization or other entity,
association or organization.
1.51 "Proportionate Part" means, with respect to any Partner or Family
Group, the Partnership Percentage of such Partner or the aggregate Partnership
Percentage of such Family Group.
1.52 "Purchase Price" shall mean the Fair Market Value of the Offered
Interests or Option Interests, as the case may be, determined as follows:
(a) Initial Value. The Managing Partner shall from time to
time determine a value for the Partnership Interests (the "Initial Value") based
upon such considerations as the Managing Partner, in its sole discretion,
determines to be relevant to such valuation. If a Selling Partner or Outside
Partner (for purposes of this Section 1.52, the "Objecting Party") does not
provide written objections to Partnership concerning the Initial Value set forth
in the Valuation Notice within 10 days after the date of such Valuation Notice,
the Purchase Price shall be equal to the Initial Value.
(b) Appraised Value. If an Objecting Party objects in writing
to the Initial Valuation within 10 days after its receipt of the Valuation
Notice, the Objecting Party, within fourteen (14) days from the date of such
written objection, shall engage an appraiser (the "First Appraiser") to
determine within 30 days of such appointment the Fair Market Value of the Shares
(the "First Appraised Value"). The cost of the First Appraiser shall be borne by
the
7
Objecting Party. If the First Appraised Value is at least eighty percent (80%)
of the Initial Value and less than or equal to one hundred twenty percent (120%)
of the Initial Value, then the Purchase Price shall be the average of the
Partnership Valuation and the Partner Appraised Value. If the First Appraised
Value is less than eighty percent (80%) of the Initial Value or more than one
hundred twenty percent (120%) of the Initial Value, then the Partnership and the
Objecting Party shall, within fourteen (14) days from the date of the First
Appraised Value, mutually agree on an appraiser (the "Final Appraiser"). The
cost of the Final Appraiser shall be borne equally by the Partnership and the
Objecting Party. The Final Appraiser shall determine within 14 days after its
appointment the Fair Market Value of the Shares (the "Final Valuation"), but
such Final Valuation shall be not less than the smaller of the Initial Value and
the First Appraised Value nor greater than the larger of the Initial Value and
the First Appraised Value. The Purchase Price shall be equal to the Final
Valuation and shall be final and binding upon the parties to this Agreement for
purposes of the subject transaction.
(c) Mutually Agreed Upon Purchase Price. Notwithstanding the
procedure set forth above, the Partnership and an Objecting Party may, prior to
or at any time during the appraisal process, mutually agree on a single
independent appraiser to determine the Purchase Price, which determination shall
be binding on all of the parties, or may agree in writing upon a Purchase Price.
(d) Cooperation with Appraisers. The Partnership shall
cooperate in assisting the appraisers in determining the Purchase Price,
including providing reasonable access to the books and records of the
Partnership and to such other information as the appraisers reasonably request
in connection with such determination; provided, however, that nothing in this
Agreement shall require the Partnership to disclose privileged or proprietary
information; and provided further, that the Partnership may require such
appraisers to enter into such confidentiality and non-disclosure agreements as
the Managing Partner reasonably believes to be necessary to protect the
interests of the Partnership and its Partners.
1.53 "Purchase Right" shall have the meaning set forth in Section 7.4.
1.54 "Qualified Fiduciary" means (a) the trustee of any trust
(including without limitation a voting trust) if and as long as the trust is
held for the benefit of one or more Authorized Transferees and no other Person,
or (b) the executor, administrator, guardian, personal representative or other
fiduciary of a deceased, incompetent, bankrupt or insolvent Authorized
Transferee; provided that any such trust must prohibit the transfer of
Partnership Interests to any Persons other than (x) the Person or Persons who
established the trust, and (y) Authorized Transferees of the Person or Persons
who established such trust.
1.55 "Remaining Interests" shall have the meaning set forth in Section
7.6(b).
1.56 "Seller's Notice" shall have the meaning set forth in Section
7.4(a).
1.57 "Selling Partner" shall have the meaning set forth in Section 7.4.
8
1.58 "Starting Date" means, with respect to any Seller's Notice or Call
Notice, the date of the final determination of the Purchase Price relating to
such notice.
1.59 "Transfer" means any sale, assignment, pledge, hypothecation,
encumbrance, disposition, transfer (including, without limitation, a transfer by
will or intestate distribution), gift or attempt to create or grant a security
interest in Partnership Interests, whether voluntary, involuntary, by operation
of law or otherwise. Notwithstanding anything to the contrary contained in this
Agreement, the occurrence of an event discussed in Sections 1.17(a), 1.17(b), or
1.17(c), pursuant to which a Family Member ceases to be a Family Member and is
thereafter treated as an Outside Partner, shall not constitute a "Transfer" for
purposes of triggering the exercise of Purchase Rights under Section 7.4 of this
Agreement.
1.60 "Valuation Notice" shall mean the notice given by the Partnership
pursuant to Sections 7.4(b) or 7.5(a) and stating the Initial Value at which a
Purchase Right or a Call Option is to be exercised.
2. FORMATION, NAME, PURPOSES, POWERS AND TERM
2.1 Formation. The Partners hereby enter into and form the Partnership
on and subject to the terms and conditions of this Agreement, as a limited
partnership organized pursuant to the provisions of the Act and the laws of the
State of Delaware. The Partners shall execute and record a Certificate for the
Partnership as contemplated by the Act. Each Partner's Partnership Interest
shall be personal property for all purposes.
All real and other Partnership Property owned by the
Partnership shall be deemed owned by the Partnership as an Entity, and no
Partner, individually, shall have a direct ownership interest in such
Partnership Property.
2.2 Name and Principal Place of Business. The Partnership shall do
business under the name "▇▇▇▇▇▇ ASSOCIATES II, L.P." The principal place of
business of the Partnership shall be ▇▇▇▇▇▇ Management, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other place as the
General Partners may from time to time determine. The General Partners shall
execute any assumed or fictitious name certificate(s) required by law in
connection with the formation of the Partnership and shall file same in the
appropriate public records.
2.3 Purposes and Powers.
(a) The character of business and purpose of the Partnership
is to invest, acquire, sell, hold, own, develop, improve, maintain, mortgage,
manage, lease and operate the Partnership Property and to conduct all other
business related or incident thereto. In particular, the Partnership is
initially designed as a vehicle for consolidating the management of the
Partnership Property, providing for the succession of management, and enhancing
total returns from the Partnership Property.
9
(b) In furtherance of the above-stated purposes and subject to
any restrictions contained in this Agreement (including, but not limited to,
Section 5.1), the Managing Partner, acting on behalf of the Partnership, shall
have the power to:
(i) Enter into a contract for purchase or sale of any
of the Partnership Property.
(ii)Execute all documents or instruments of any kind
appropriate for carrying out the purposes of the Partnership, including, without
limitation, investment management, management, purchase, debt, and security
agreements.
(iii) Open and maintain one or more depository
accounts, including money market accounts and margin accounts, in the name of
the Partnership.
(iv) Employ such personnel and obtain such management
services and/or such investment management, legal, accounting, and other
professional services and advice as the Partners deem advisable in the course of
the Partnership's operations under this Agreement, including the services of any
party who, directly or beneficially, is a Partner or a spouse or descendant of a
Partner, and pay reasonable fees for such services.
(v) Pay all real estate and ad valorem taxes and
other governmental charges levied or assessed against the Partnership Property,
and all other taxes (other than income taxes of the Partners except to the
extent that the Partnership may be obligated to withhold therefor) directly
relating to the Partnership's operations under this Agreement.
(vi) Borrow money from banks and other lending
institutions or from other third parties or from any of the Partners for
Partnership purposes and pledge or otherwise grant security interests in the
Partnership Property for the repayment of such loans.
(vii) Take any of the Partnership Property subject to
a loan or assume a loan secured by any of the Partnership Property irrespective
of whether such outstanding loan is from a lending institution or other third
party or from one or more of the Partners.
(viii) Perform any and all other acts or activities
customary, incidental, necessary or convenient to the purposes and powers
enumerated herein.
(c) Nothing in this Agreement shall, or shall be deemed to,
restrict in any way the freedom of any Partner (directly or through an
affiliate) to conduct any other business or activity whatsoever (including,
without limitation, the acquisition, development, leasing, sale, operation and
management of other real property), without any accountability to the
Partnership or any other Partner, even if such business or activity competes
with the business of the Partnership, it being understood by each Partner that
the other Partners or affiliates thereof may be interested, directly or
indirectly, in various other businesses and undertakings not included in the
Partnership.
10
2.4 Term. The term of the Partnership shall commence as of the date of
this Agreement and shall continue until the date which is thirty (30) years from
the date hereof, unless extended by amendment to this Agreement or sooner
terminated as herein provided.
2.5 Registered Agent. The name of the Partnership's initial agent for
service of process on the Partnership in the State of Delaware shall be
Corporation Service Company, and the address of the initial registered office
and the initial registered agent shall be The Corporation Trust Company,
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County
of New Castle. As required by the Act, the Partnership shall at all times
maintain in the State of Delaware an office and an agent for service of process
selected by the General Partners in accordance with any relevant provisions of
the Act.
3. REPRESENTATIONS AND WARRANTIES. Each Partner, in order to induce the other
Partners to enter into this Agreement, hereby represents and warrants to the
other Partners that:
3.1 Validity of Agreement. This Agreement, and each and every other
agreement, document and instrument provided for herein and to which such Partner
is or shall be a party, when executed and delivered, shall constitute the valid
and binding obligation of such Partner, enforceable against such Partner in
accordance with its terms, except as enforceability may be limited by (a)
bankruptcy or similar laws from time to time in effect affecting the enforcement
of creditors' rights generally or (b) the availability of equitable remedies
generally.
3.2 No Violation of Material Instruments. The execution and delivery of
this Agreement by such Partner does not, and the consummation of the
transactions contemplated hereby shall not:
(a) violate or constitute an occurrence of default (which
violation or default either singularly or in the aggregate would be considered
material) under any provision of, or conflict with, or result in acceleration of
any obligation under, or give rise to a right by any party to terminate its
obligations under any material agreement, instrument, order, judgment, decree or
other arrangement to which such Partner is a party or by which he is bound or
his assets affected; or
(b) require any consent, approval, filing or notice under any
provision of law, or violate any judgment, ruling, order, writ, injunction,
decree, statute, rule or regulation applicable to such Partner.
4. CAPITAL
4.1 Initial Contributions. As of the date hereof, the Partners have
contributed various properties to the Partnership as their respective initial
Capital Contributions. The initial Partnership Interests and Partnership
Percentages shall be proportional to the Fair Market Values of the Partners'
respective Capital Contributions, without regard to whether such Capital
Contributions are for an interest as a General Partner, Limited Partner, or
both. The properties initially contributed to the Partnership by the respective
Partners, the Fair Market Values of such
11
Capital Contributions, as mutually agreed upon by the Partners, and the
specification of the extent to which such Capital Contributions are for an
interest as a General Partner or a Limited Partner are set forth in Schedule A
attached hereto. The Partners acknowledge that they, their advisers, or both are
familiar with the properties contributed to the Partnership, have considerable
knowledge and experience regarding the valuation of those properties and similar
properties, and have in good faith determined the Fair Market Values of such
properties, as set forth in Schedule A.
4.2 Additional Contributions. In addition to the Capital Contributions
made by the Partners pursuant to Section 4.1 hereof, and subject to the
limitations on any requirement that a Partner make additional Capital
Contributions (as hereinafter provided in the second paragraph of this Section
4.2), the Partners may, from time to time, make such additional Capital
Contributions as may be necessary or desirable in the discretion of the Managing
Partner; provided, however, that any property contributed to the Partnership
under this Section 4.2 shall be transferred subject to any and all existing
liabilities encumbering such contributed property, and the Partnership shall
take and hold the contributed property subject to such existing liabilities but
shall not assume such liabilities unless Partners owning more than fifty percent
(50%) of the Partnership Interests consent in writing to any such assumption. In
the event the net values of the additional Capital Contributions shall be
disproportionate to the Partners' Partnership Percentages immediately before the
additional Capital Contributions, then the Partnership Percentages shall be
adjusted as provided in Section 1.48 to reflect the disproportionate additional
Capital Contributions.
Under no circumstances shall a Limited Partner be personally
liable for any of the debts or obligations of the Partnership by reason of such
Person's status as a Limited Partner. No Limited Partner shall be required, by
reason of such Person's status as a Limited Partner, to contribute any capital
to the Partnership except as provided in Section 4.1.
4.3 Capital Accounts.
(a) An individual Capital Account shall be established and
maintained for each Partner in accordance with the requirements of the Code and
any regulations thereunder, and shall be credited with the Capital
Contributions(s) of such Partner and that portion of Net Income allocable to
such Partner, and shall be debited with that portion of any Net Loss allocable
to such Partner and all distributions made by the Partnership to such Partner.
If the Partner is both a General Partner and a Limited Partner, subaccounts
shall be maintained to reflect the Person's interest as a General Partner and as
a Limited Partner.
(b) No interest shall be payable to any Partner on any
positive balance in such Partner's Capital Account.
(c) No Partner shall have the right to withdraw from his
Capital Account or to otherwise receive any Partnership funds or Partnership
Property except as provided by this Agreement. Each Partner expressly waives any
right to partition the Partnership Property which he or she may otherwise have,
as provided in Section 11.4.
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(d) A Partner shall be required to eliminate in any fashion
approved in good faith by the Managing Partner any deficit balance which may
arise in that Partner's Capital Account, at the time the Partnership is
dissolved or at any other time, provided, however, that no Limited Partner shall
be required, by reason of such Person's status as a Limited Partner, to
contribute any capital to the Partnership except as provided in Section 4.1. If
a Limited Partner unexpectedly receives an adjustment, allocation or
distribution described in (4), (5) or (6) of Section 1.704-1(b)(2)(ii)(d) of the
regulations issued under Section 704(b) of the Code (or any successor thereto),
gross income of the Partnership or gain from a sale of assets shall be allocated
to such Limited Partner or Limited Partners in an amount sufficient to eliminate
any deficit balance in such Limited Partner's capital account caused by such
adjustment, allocation or distribution as quickly as possible to the extent such
deficit balance exceeds the amount such Limited Partner is deemed obligated to
restore to the Partnership pursuant to the Section 704(b) regulations. It is the
intent of the Partners that any allocation pursuant to this Section 4.3
constitutes a "qualified income offset" under Treasury regulation Section
1.704-1(b)(2)(ii)(d).
4.4 Allocation of Net Income and Net Loss. Net Income or Net Loss of
the Partnership shall be determined as of the end of each calendar year and as
of the end of any interim period extending through the day immediately preceding
any disproportionate Capital Contribution or distribution or succession or
assignment. If a calendar year includes an interim period, the determination of
Net Income or Net Loss for the period extending through the last day of the
calendar year shall include only that period of less than twelve (12) months
occurring from the day immediately following the last day of the latest interim
period during the calendar year and extending through the last day of the
calendar year. For all purposes, including income tax purposes, Net Income, if
any, of the Partnership for each calendar year or interim period shall be
allocated among the Partners in proportion to their Partnership Percentages for
the calendar year or interim period. In the event of a Net Loss for a particular
calendar year or interim period, then, for such calendar year or interim period,
the Net Loss for such calendar year or interim period shall be allocated among
the Partners in proportion to their respective Partnership Percentages for the
calendar year or interim period.
4.5 Distributions.
(a) The Partnership must distribute annually among the
Partners an amount equal to the greater of (i) Net Operating Cash Flow of the
Partnership, or (ii) an amount corresponding to the income tax liabilities of
the Partners resulting from the allocation of Net Income (as shall be determined
in good faith by the Managing Partner by assuming that all Partners are in the
highest marginal federal income tax bracket and by using the income tax rates
for the state of residence of the Partner with the highest state income tax
rates). The Partnership shall make such distributions from time to time during
each year as the Managing Partner determines, provided that the Partnership must
distribute quarterly at least fifteen days in advance of the dates on which
estimated tax payments are due at least an amount corresponding to the income
tax liabilities of the Partners resulting from the allocation of Net Income (as
determined as provided in the preceding sentence).
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(b) All distributions shall be made in proportion to the
Partners' Partnership Percentages except (i) when the Managing Partner by
majority vote of its Board of Directors approves the disproportionate
distribution, or (ii) with respect to any payment of NACCO Class A Shares or
NACCO Class B Shares by the Partnership pursuant to Section 7.7(a). The Managing
Partner is encouraged to consider disproportionate distributions to defray the
income tax liabilities resulting from special allocations under Section 704(c)
of the Code, but such disproportionate distributions shall not be required.
Subject to Section 4.5(a), the Managing Partner is expressly authorized to make
monthly or other periodic draws with respect to one or more, but not necessarily
all, of the Partners, on the condition that compensating distributions,
determined with or without interest in the discretion of the Managing Partner,
shall be made to the other Partners on or before the end of March of the
following calendar year so that the total draws and compensating distributions
shall be proportionate. For all purposes of this Agreement, except as provided
in the immediately preceding sentence, a distribution among the Partners which
is not in proportion to Partnership Percentages shall be regarded as
disproportionate. In the event that a disproportionate distribution occurs, the
Managing Partner shall appropriately adjust the Capital Accounts of the Partners
to reflect such disproportionate distribution. This adjustment of Capital
Accounts, and thus Partnership Interests, shall be in addition to the adjustment
in Partnership Percentages.
4.6 No Right to Return of Capital. Except as otherwise expressly
provided in this Agreement, the Partners shall not have the right to demand the
return of all or any portion of their respective Capital Contributions or to
demand or receive property other than cash in return for their respective
Capital Contributions.
5. MANAGEMENT.
5.1 Management of Partnership Business. The Managing Partner shall be
responsible for managing and conducting the ordinary and usual business and
affairs of the Partnership, and by the vote of a majority of the Board of
Directors of the Managing Partner shall make all management decisions on behalf
of the Partnership, including, without limitation (except as expressly provided
elsewhere in this Agreement):
(a) the voting of any stock, partnership interest, or interest
in a limited liability company with respect to which the Partnership owns more
than five percent (5%) of the total voting power;
(b) the borrowing of any funds for or by the Partnership in
excess of $200,000 (whether secured or unsecured), the collateralization of any
such borrowing with any Partnership Property, or the prepayment of any such
borrowing;
(c) the approval of Partnership budgets;
(d) the approval of any contracts between the Partnership and
any Partner or any shareholder, beneficiary, spouse, descendant, or spouse or
descendant of a shareholder or beneficiary of one of the Partners;
14
(e) the retention or termination of an investment manager;
(f) except as provided in Section 7 or elsewhere in this
Agreement, the admission of new Partners to the Partnership;
(g) the exercise by the Partnership of the Call Option
pursuant to Section 7.5; and
(h) the election to subject the Partnership to the unified
audit rules of " 6221-6234 of the Code, as provided in Section 5.5.
5.2 Management of Partnership Property Consisting of NACCO Stock.
(a) The Managing Partner by the approval of a majority of its
Board of Directors shall direct the voting of the NACCO Class A Stock and NACCO
Class B Stock held by the Partnership and may authorize the Partnership to enter
into a voting arrangement with respect to any or all of such NACCO Class A Stock
and NACCO Class B Stock.
(b) The Partnership will not Transfer any shares of NACCO
Class B Stock without the consent of a majority of the Board of Directors of the
Managing Partner and the consent of Partners owning more than 75% of all
Partnership Interests.
(c) The Partnership will not Transfer any shares of NACCO
Class A Stock, other than to acquire NACCO Class B Stock, without the consent of
a majority of the Board of Directors of the Managing Partner and the consent of
Partners owning more than 75% of all Partnership Interests.
5.3 Election of Managing Partner. ▇▇▇▇▇▇ MANAGEMENT, INC. is hereby
designated as the initial Managing Partner. If ▇▇▇▇▇▇ MANAGEMENT, INC. or any
successor ceases to serve as a Managing Partner, such General Partner(s) or
officer(s) of a General Partner selected by Partners owning not less than ninety
percent (90%) of the Partnership Interests shall serve as successor Managing
Partner or Co-Managing Partners (referred to herein collectively in the singular
as "Managing Partner" unless the context indicates to the contrary). Such
General Partner(s) or officer(s) of a General Partner who are thus selected as
Managing Partner or Co-Managing Partners may expressly be one or more
Co-Managing Partners who continue to serve after another Co-Managing Partner
ceases to serve.
If an individual Managing Partner or Co-Managing Partner is
determined by his or her principal attending physician to be incapable of
handling his or her duties as Managing Partner or Co-Managing Partner, such
incapacitated Managing Partner or Co-Managing Partner shall be deemed to have
resigned for the period of his or her incapacity, but such individual shall be
restored as Managing Partner or Co-Managing Partner in lieu of his or her
successor (or that Person's successor), if any, in the event his or her
principal attending physician later determines that the incapacitated Managing
Partner or Co-Managing Partner has recovered sufficiently to resume the duties
of Managing Partner or Co-Managing Partner. Any determination by the
15
Managing Partner's or Co-Managing Partner's principal attending physician shall
be conclusive, and the principal attending physician shall be held harmless by
the Partnership from any liability resulting from any good faith determination
of incapacity or recovery. Any determination hereunder by the principal
attending physician shall be in recordable form.
Any Managing Partner or Co-Managing Partner may be removed and
replaced only by and with the consent of Partners owning not less than ninety
percent (90%) of all Partnership Interests.
So long as more than one Managing Partner shall be serving,
the vote of a majority of those then serving shall control. The Managing Partner
or any Co-Managing Partner may sign on behalf of the Partnership, and any third
party may conclusively rely upon the signature of the Managing Partner or any
Co-Managing Partner as being binding upon the Partnership. Any person dealing in
good faith with the Partnership may conclusively rely upon any writing signed by
one or more Persons certifying (a) that such Person or Persons are the Managing
Partner, a Co-Managing Partner, or the Co-Managing Partners then serving and (b)
that such Person or Persons are acting in accordance with the terms of this
Agreement. The Co-Managing Partner working regularly in the Partnership's
principal place of business shall be responsible for informing any other
Co-Managing Partner(s) of any matters requiring the Managing Partner's approval,
and the Managing Partner shall keep the other Partners informed on a timely
basis as to all significant matters of concern to the Partnership.
5.4 Compensation of Managing Partner. The Managing Partner or
Co-Managing Partners shall not be entitled to any compensation for performance
of duties under this Agreement as Managing Partner or Co-Managing Partners. The
Partnership shall reimburse the Managing Partner or any Co-Managing Partner at
cost for reasonable out-of-pocket expenses incurred in the performance of duties
under this Agreement.
5.5 Tax Matters. The Managing Partner may elect, pursuant to '
6231(a)(1)(B)(ii) of the Code, to subject the Partnership to the unified audit
rules of " 6221-6234 of the Code. If such election is made, the Managing Partner
(or one of the Co-Managing Partners selected by vote of the Co-Managing Partners
then serving in accordance with Section 5.3 if more than one Managing Partner
shall then be serving) will be the Partnership's "tax matters partner," as that
term is defined in Section 6231(a)(7) of the Code, and shall receive notice of
the commencement of any administrative proceeding at the Partnership level with
respect to any Partnership item or items, and shall receive notice of any final
Partnership administrative adjustment resulting from any such proceeding, in
each case within the meaning of Sections 6223 and 6231 of the Code. The
Partnership's tax matters partner shall supply such information to the Internal
Revenue Service as may be necessary to enable the Internal Revenue Service to
provide the Partners with such notices as are required under the Code. The
Partnership's tax matters partner shall also keep each Partner informed of any
administrative or judicial proceeding relative to any adjustment or proposed
adjustment at the Partnership level of Partnership items. Without the prior
written approval of Partners owning more than fifty percent (50%) of the
Partnership Interests, the tax matters partner shall not (a) enter into any
settlement agreement with the Internal Revenue Service which purports to bind
persons other than the tax matters partner, (b) file a petition as
16
contemplated by Sections 6226(a) or 6228 of the Code, (c) intervene in any
action as contemplated by Section 6226(b) of the Code, (d) file any request as
contemplated by Section 6227(b) of the Code, or (e) enter into an agreement
extending the period of limitation as contemplated by Section 6229(b)(1)(B) of
the Code.
5.6 Limitation of Liability. No Partner, direct or indirect shareholder
of a Partner, or director, officer, or employee of the Partnership or a Partner
shall be liable to the Partnership or any of its Partners for any loss, damage,
liability or expense suffered by the Partnership or its Partners on account of
any action taken or omitted to be taken by such Person on behalf of, or at the
request of, the Partnership, or in connection with the organization of the
Partnership, provided such Person discharges such Person's duties in good faith,
exercising the same degree of care and skill that a prudent person would have
exercised under the circumstances in the conduct of such prudent person's own
affairs, and in a manner such Person reasonably believes to be in the best
interest of the Partnership. A Person's liability hereunder shall be limited
only for those actions taken or omitted to be taken by such Person in connection
with the organization of the Partnership or the management of the business and
affairs of the Partnership. The provisions of this Section are not intended to
limit the liability of any person in any other connection, including, but not
limited to, any obligations of such Person undertaken in this Partnership
Agreement or any contract with the Partnership.
5.7 Right to Indemnification. The Partnership shall indemnify each
Person who has been or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or appellate (regardless of whether such
action, suit or proceeding is by or in the right of the Partnership or by third
parties), by reason of the fact that such Person is or was a Partner, direct or
indirect shareholder of a Partner, director, officer, or employee of the
Partnership or a Partner, or organizer of the Partnership, against all
liabilities and expenses, including, without limitation, judgments, amounts paid
in settlement, attorneys' fees, ERISA excise taxes or penalties, fines and other
expenses, actually and reasonably incurred by such Person in connection with
such action, suit or proceeding (including, without limitation, the
investigation, defense, settlement or appeal of such action, suit or
proceeding); provided, however, that the Partnership shall not be required to
indemnify or advance expenses to any person from or on account of such Person's
conduct that is finally adjudged to have been knowingly fraudulent, deliberately
dishonest, grossly negligent, or willful misconduct; provided, further, that the
Partnership shall not be required to indemnify or advance expenses to any Person
in connection with an action, suit or proceeding initiated by such Person unless
the initiation of such action, suit or proceeding was authorized in advance by
the Partnership; and provided, finally, that a Person shall be indemnified
hereunder only for those actions taken or omitted to be taken by such Person in
connection with the discharge of such Person's obligations for the organization
of the Partnership or the management of the business and affairs of the
Partnership and that the provisions of this Section 5.7 are not intended to
extend indemnification to any Partner or other Person for any obligations of
such Partner or other Person undertaken in this Partnership Agreement. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or under a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that such
17
Person's conduct was finally adjudged to have been knowingly fraudulent,
deliberately dishonest, grossly negligent, or willful misconduct.
6. BOOKS, AUDITS AND FISCAL MATTERS.
6.1 Partnership Books. The Managing Partner shall maintain full and
complete books and records for the Partnership at its principal office, and each
Partner and his, her, or its designated representatives shall at all times have
reasonable access to, and may inspect and copy any of, such books and records.
6.2 Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
7. TRANSFER OF PARTNERSHIP INTERESTS.
7.1 Securities Laws. Each Partner acknowledges that its Partnership
Interest was offered and is being sold in reliance upon the representation,
hereby affirmed, that such Partnership Interest is being purchased for
investment for such Partner's own account or in his or its fiduciary capacity
for a fiduciary account, as appropriate, and not with a view to, or for resale
in connection with, the distribution of such Partnership Interest or any
interest therein. Each Partner also acknowledges that such Partner's Partnership
Interest has not been registered under the Securities Act of 1933 or any state
securities laws. Notwithstanding any other provision in this Agreement, but
subject to express written waiver by the Managing Partner in the exercise of its
reasonable judgment, no portion of or interest in any Partnership Interest may
be offered for sale or be the subject of a Transfer without the registration of
the Partnership Interest under the Securities Act and applicable state
securities laws, unless the Partnership shall have received such assurances
satisfactory to the Managing Partner that such Transfer does not violate the
Securities Act, any state securities laws or any other law applicable to the
Partnership, including, without limitation, such legal opinions which it in its
good faith and reasonable discretion deems appropriate in light of the facts and
circumstances relating to such proposed Transfer, together with such
representations, warranties and indemnifications from the transferor and the
transferee as the Managing Partner in its good faith and reasonable discretion
deems appropriate to confirm the accuracy of the facts and circumstances that
are the basis for any such opinion or other assurances and to protect the
Partnership and the other Partners from any liability resulting from any such
Transfer. Such opinions, representations, warranties and indemnities may
include, without limitation, assurance that the transaction is exempt from any
registration or qualification provisions arising under applicable Federal and
state securities laws and would not require the registration or qualification of
the Partnership Interest under any such laws.
7.2 Restriction on Transfers. Except as otherwise provided in this
Agreement, no Partner shall, either during the Partner's lifetime or upon the
Partner's death, Transfer any of the Partnership Interests now owned or
hereafter acquired by such Partner. Moreover, no Partner shall Transfer or
attempt to Transfer any Partnership Interest if such Transfer or attempted
Transfer is contrary to the provisions of the NACCO Restated Certificate or the
NACCO Stockholders' Agreement. In the event of any purported or attempted
Transfer of Partnership Interests that does not comply with this Agreement, the
purported transferee or successor by
18
operation of law shall not be deemed to be a Partner of the Partnership for any
purpose and shall not be entitled to any of the rights of a Partner of the
Partnership, including, without limitation, the right to vote the Partnership
Interests or to receive a certificate for Partnership Interests or any
distributions of any kind on or with respect to Partnership Interests. Any
purported or attempted transfer of Partnership Interests made other than in
accordance with the provisions of this Agreement shall be void ab initio and the
last holder of record who acquired such Partnership Interests in a manner not
contrary to the provisions of this Agreement shall be recognized as the holder
of such Partnership Interests for all purposes and the Partnership Interests
shall continue to be treated as Partnership Interests for all purposes under
this Agreement, shall be deemed owned by such recognized holder for purposes of
the operation of this Agreement and shall continue to be subject to the terms of
this Agreement.
7.3 Unrestricted Transfers. Notwithstanding anything to the contrary
contained herein, each Partner or Authorized Transferee of such Partner shall be
entitled to Transfer all or any portion of his, her or its Partnership Interests
to any Authorized Transferee of such Partner, provided that such Partner has
first obtained the written consent of the Managing Partner, which consent may be
withheld for any reason or for no reason at all, without need to comply with the
other provisions of this Agreement.
7.4 Purchase Right. At any time after the date hereof, the Partnership
and the Family Groups shall have a right of first refusal (the "Purchase Right")
to purchase, pursuant to the terms of this Section 7.4, from any Partner (for
purposes of this Section 7.4, a "Selling Partner") intending to Transfer, other
than as permitted in Section 7.3 of this Agreement, all or any portion of his,
her or its Partnership Interests (including any Partnership Interests acquired
after the date hereof).
(a) A Selling Partner intending to Transfer all or any portion
of his, her or its Partnership Interests shall first deliver to the Partnership
a written notice (the "Seller's Notice") specifying (i) the Partnership
Interests to be transferred (the "Offered Interests"); and (ii) the identity of
the proposed transferee.
(b) Within 10 days after the Partnership's receipt of the
Seller's Notice, the Managing Partner shall deliver to the Selling Partner a
Valuation Notice setting forth the Initial Value and the Managing Partner and
the Selling Partner shall commence the process to determine the Purchase Price
pursuant to Section 1.52 of this Agreement.
(c) Within 10 days after the Starting Date, the Partnership
shall notify each Family Holder (other than the Selling Partner) of (i) the
Starting Date; (ii) the number of Offered Interests; and (iii) the Purchase
Price. The Partnership's notice shall include a copy of the Seller's Notice.
(d) Within 40 days after the Starting Date, each Partner shall
notify the Partnership of how many, if any, of the Offered Interests he or she
elects to purchase.
19
(e) Within 50 days after the Starting Date, the Partnership
shall provide written notice to the Selling Partner and to each other Partner of
(i) the number of Offered Interests to be purchased by Family Holders and the
allocation of the Offered Interests among the Family Holders pursuant to the
terms of Section 7.6 of this Agreement; (ii) the number of Offered Interests to
be purchased by the Partnership; and (iii) the time, date and place of Closing
which shall be no sooner than 90 days after the Starting Date and no later than
120 days after the Starting Date.
7.5 Call Options to Purchase Partnership Interests. At any time after
the date hereof, the Partnership and the Family Groups shall have the option
(the "Call Option") to purchase from any Partner who is then an Outside Partner
all, but not less than all, of the Partnership Interests (the "Option
Interests") directly or indirectly owned by such Outside Partner, and upon the
exercise of a Call Option such Outside Partner shall be obligated to sell to the
purchasing Partners or the Partnership, as the case may be, all (but not less
than all) of his, her or its Option Interests. The Call Option shall be
exercised as follows:
(a) Within thirty (30) days after the determination by the
Partnership to exercise a Call Option with respect to an Outside Partner, the
Partnership shall provide written notice (the "Call Notice") of such exercise to
the Selling Outside Partner of (i) the exercise of the Option; (ii) the number
of Option Interests; and (iii) the Initial Value of the Option Interests.
Thereafter, the Partnership and the Outside Partner shall determine the Purchase
Price in accordance with Section 1.52.
(b) Within ten (10) days after the Starting Date, the
Partnership shall provide notice of such exercise to each Family Holder of (i)
the exercise of the Option; (ii) the number of Option Interests; (iii) the
Purchase Price of the Option Interests; and (iv) the Starting Date.
(c) Within 40 days after the Starting Date, each Family Holder
shall notify the Partnership of how many, if any, of the Option Interests he,
she or it elects to purchase.
(d) Within 50 days after the Starting Date, the Partnership
shall provide written notice to the selling Outside Partner and to each Family
Holder of (i) the allocation of the Option Interests among the Family Holders
pursuant to the terms of Section 7.6 of this Agreement; (ii) the number of
Option Interests to be purchased by the Partnership; and (iii) the time, date
and place of Closing which shall be no sooner than 90 days after the Starting
Date and no later than 120 days after the Starting Date.
(e) If the Partnership and the Family Holders do not together
elect to purchase all of the Option Interests then the Outside Partner shall not
be obligated to sell any of the Option Interests; provided, however, that the
Partnership and the Family Holders shall continue to have the right to exercise
a Call Option with respect to such Option Interests at anytime thereafter.
(f) The Option Interests shall be allocated among the
Partnership and the Family Groups, and within each Family Group among its
members, in the manner provided in Section 7.6.
20
7.6 Allocation of Offered Interests / Option Interests. Offered
Interests and Option Interests shall be allocated among the Partnership and the
Family Holders pursuant to the terms of this Section 7.6. At the Closing, the
Partnership and such Family Holders, as the case may be, shall be obligated to
purchase the Offered Interests or Option Interests so allocated pursuant to the
terms and provisions of this Agreement. Notwithstanding anything to the contrary
contained herein, no Partner shall be entitled to receive, or be obligated to
purchase, more Partnership Interests than such Partner has elected to purchase
pursuant to Section 7.4(d) or 7.5(c), as the case may be. All Offered Interests
or Option Interests shall be allocated as follows:
(a) Allocation to Original Holders of Offered Interests. Any
Offered Interests or Options Interests shall first be allocated to members of
the Family Group (the "Original Holders") (i) in which the Selling Partner is
the Initial Limited Partner or a Family Member, or (ii) if the Selling Partner
is an Outside Partner, from which the Selling Partner, or his, her or its
predecessors in interest, acquired such Offered Interests or Option Interests,
to the extent such Original Holders have elected to purchase the Offered
Interests or Option Interests. Such Partnership Interests shall be allocated in
accordance with Section 7.6(d).
(b) Allocation among Family Groups. Any Offered Interests or
Option Interests not allocated pursuant to Section 7.6(a) (the "Remaining
Interests") shall be allocated among the Family Groups (other than the Original
Holders) which have Partners electing to purchase Offered Interests or Option
Interests as follows:
(i) If a Family Group has collectively elected
to purchase a number of Offered Interests or
Option Interests which is less than or equal
to its Proportionate Part of the Remaining
Interests, then such Family Group shall be
allocated the number of Partnership
Interests that its members have elected to
purchase.
(ii) If a Family Group has collectively elected
to purchase a number of Offered Interests or
Option Interests which is greater than its
Proportionate Part of the Remaining
Interests, then such Family Group shall, in
the first instance, be allocated its
Proportionate Part of the Remaining
Interests.
(iii) If additional Remaining Interests remain to
be allocated after the application of
subsections (i) and (ii) above (the
"Outstanding Remaining Interests"), then
each Family Group which has collectively
elected to purchase a number of Offered
Interests or Option Interests which exceeds
its Proportionate Part shall be allocated an
additional number of the Remaining Interests
equal to the lesser of:
(A) The number of Offered Interests or
Option Interests which such Family
Group elected to purchase but which
were not allocated to it by reason
of subsection (ii) above, or
21
(B) That portion of the Outstanding
Remaining Interests represented by a
fraction the numerator of which is
the number of Partnership Interests
held by such Family Group (prior to
such allocation), and the
denominator of which is the number
of Partnership Interests held by all
Family Groups which have elected to
purchase a number of Offered
Interests or Option Interests in
excess of the number of those
Offered Interests or Option
Interests previously allocated to
them under this Section 7.6.
(iv) Any Partnership Interests remaining to be
allocated after the application of
subsections (i), (ii) and (iii) above, shall
be allocated in accordance with the
procedures described in subsection (iii)
above until either (A) all of the Offered
Interests or Option Interests which Family
Holders, as the case may be, have elected to
purchase have been allocated, or (B) there
remains only one Family Group which has not
been allocated all of the Partnership
Interests it has elected to purchase, in
which event all of the then unallocated
Offered Interests or Option Interests shall
be allocated to such Family Group up to the
amount that such Family Group elected to
purchase.
(c) Allocation to the Partnership. The Partnership may, but
shall not be obligated to, purchase any Option Interests not allocated to a
Family Group.
(d) Allocation of Partnership Interests among Family Group
Members. Offered Interests or Option Interests allocated to a Family Group
pursuant to Sections 7.6(a) or 7.6(b) shall be allocated among the Family
Holders of such Family Group, as follows:
(i) First, to the Initial Limited Partner of
such Family Group in an amount equal to the
number of Offered Interests or Option
Interests such Initial Limited Partner
elects to Purchase; and
(ii) Second, to each Partner of such Family
Group, other than the Initial Limited
Partner, electing to purchase Offered
Interests or Option Interests in an amount
determined by multiplying (A) the number of
Partnership Interests allocated to such
Family Group and not purchased by the
Initial Limited Partner, by (B) a fraction,
the numerator of which is the number of
Partnership Interests subscribed for by such
Partner, and the denominator of which is the
aggregate number of Partnership Interests
subscribed for by all Partners of a Family
Group, other than the Initial Limited
Partner.
7.7 Terms of Sale. The Purchase Price for all Partnership Interests
purchased pursuant to Section 7.4 or Section 7.5 of this Agreement shall be paid
at the Closing, as follows:
22
(a) If the purchaser is the Partnership, the Partnership, at
its election, may pay its portion of the Purchase Price in NACCO Class B Shares,
NACCO Class A Shares, immediately available United States Funds, or any
combination of such consideration as follows:
(i) to the extent that the Partnership elects to
pay the Purchase Price be paid in NACCO
Class B Shares, the Partnership shall pay to
the Selling Partner, such number of NACCO
Class B Shares as shall be equal to the
quotient of (A) the portion of the Purchase
Price payable in NACCO Class B Shares,
divided by (B) the Applicable NACCO Class A
Closing Price Average; and
(ii) to the extent that the Partnership elects to
pay the Purchase Price be paid in NACCO
Class A Shares, the Partnership shall pay to
the Selling Partner such number of NACCO
Class A Shares as shall be equal to the
quotient of (A) the portion of the Purchase
Price payable in NACCO Class A Shares,
divided by (B) the Applicable NACCO Class A
Closing Price Average (If necessary the
Partnership may convert NACCO Class B Shares
to NACCO Class A Shares and to pay such
Purchase Price); and
(iii) immediately available United States Funds
equal to that portion of the Purchase Price
not payable in NACCO Class B Shares or NACCO
Class A Shares.
(b) If the purchaser is a Partner, such Partner may pay its
portion of the Purchase Price in NACCO Class A Shares, immediately available
United States Funds, or any combination of such consideration as follows:
(i) to the extent that the Partner elects to pay
the Purchase Price in NACCO Class A Shares,
such Partner shall pay to the Selling
Partner such number of NACCO Class A Shares
as shall be equal to the quotient of (A) the
portion of the Purchase Price payable in
NACCO Class A Shares, divided by (B) the
Applicable NACCO Class A Closing Price
Average; and
(ii) immediately available United States Funds
equal to that portion of the Purchase Price
not payable in NACCO Class A Shares.
7.8 Closing
(a) The Closing of the purchase and sale of any Partnership
Interests pursuant to this Agreement shall occur at the time, date and place
specified by the Partnership in its written notice pursuant to Sections
7.4(e)(iii) or 7.5(d)(iii), as the case may be.
23
(b) At Closing, transfer instruments shall be respectively
delivered by the seller to each purchaser against payment of such purchaser's
portion of the Purchase Price. Such delivery shall constitute warranties by the
seller thereof that such seller has full authority to transfer the Partnership
Interests to such purchaser and that such purchaser is acquiring the Partnership
Interests free and clear of all liens, encumbrances or other outstanding
interests of any nature, other than those created pursuant to the terms of this
Agreement.
7.9 Legal Requirements. The purchase and sale of any Partnership
Interests pursuant to this Agreement shall be subject to compliance with all
applicable state and federal securities laws, and each Partner agrees without
additional consideration to do all necessary things reasonably requested by the
Partnership in connection therewith, the reasonable expenses of such to be paid
by the selling Partner(s).
8. CODE SECTION 754 ELECTION. Upon the written request of Partners owning more
than fifty percent (50%) of all Partnership Interests, the Partnership shall
file an election under Code Section 754 to adjust the tax basis of the
Partnership Property, with respect to any distribution of Partnership Property
to a Partner or a transfer of a Partnership Interest, in accordance with Code
Sections 734(b) and 743(b). The Partners acknowledge that once a Code Section
754 election shall be validly filed by the Partnership, it shall remain in
effect indefinitely thereafter unless the Internal Revenue Service approves the
revocation of such election.
9. DISSOLUTION.
9.1 Dissolution and Termination. The Partnership shall continue for the
term described in Section 2.4 hereof, unless earlier dissolved (a) with the
consent of the Managing Partner and Partners owning more than ninety percent
(90%) of all Partnership Interests, or (b) upon the bankruptcy of a General
Partner unless the continuation of the Partnership is agreed to in writing by
all other General Partners, if any, or by Partners holding more than fifty
percent (50%) of all Capital Accounts and all Partnership Percentages (exclusive
of the Capital Accounts and Partnership Percentages of the bankrupt General
Partner), or (c) with the consent of the Managing Partner, upon the Transfer of
substantially all of the shares of NACCO Class A Shares and NACCO Class B Shares
held by the Partnership. In the event that the Partnership is dissolved, the
assets of the Partnership shall be liquidated as promptly as is consistent with
obtaining the Fair Market Value thereof, and the proceeds therefrom, together
with any assets distributed in kind, shall be distributed first to creditors to
satisfy all debts and liabilities of the Partnership other than loans or
advances made by the Partners to the Partnership, then to the establishment of
reserves deemed reasonably necessary to satisfy contingent or unforeseen
liabilities or obligations of the Partnership, then to the repayment of any
loans or advances made by the Partners to the Partnership, with the balance, if
any, to be distributed in accordance with the balances in each Partner's Capital
Account at that time. Solely for the purposes of determining the balances of the
Partners' Capital Accounts at that time, any Partnership Property that is
distributed in kind shall be treated as though such Partnership Property were
sold for its Fair Market Value as of the date of distribution, as determined by
an independent appraiser. Upon completion of the foregoing, the Partnership
shall be terminated.
24
9.2 Continuation of Business. Except as provided in Section 9.1,
neither the disposition of any Partnership Interest pursuant to Section 7 hereof
nor the death, insanity, incapacity, or bankruptcy of a Partner shall cause the
dissolution or termination of the Partnership or have any effect upon the
continuance of the Partnership business. No Partner shall have a right to
withdraw from the Partnership or to abandon any Partnership Interest except as
expressly provided herein.
10. POWER OF ATTORNEY.
10.1 Grant of Power. Each Partner by his, her or its signature below
irrevocably makes, constitutes and appoints the Managing Partner, and each of
them, his, her or its true and lawful attorney in his, her or its name, place
and stead in any capacities, with the power from time to time to substitute or
resubstitute one or more others as such attorney, and to make, execute, swear
to, acknowledge, verify, deliver, file, record and publish any and all
documents, certificates or other instruments which may be required or deemed
desirable by the Managing Partner to (a) effectuate the provisions of any part
of this Agreement or any amendments to this Agreement, (b) enable the
Partnership to conduct its business, (c) comply with any applicable law in
connection with the Partnership's conduct of its business, (d) retain
professional services, including accounting and legal counsel, for the
Partnership (including, without limitation, the waiver on behalf of the
Partnership and each Partner of any conflict arising from such professional's
representation of another client on matters in which the interests of the
Partnership, any Partner or any affiliate of the Partnership or any Partner may
be adverse to such other client), or (e) to execute any and all statements under
Section 13 or Section 16 of the Securities Exchange Act of 1934, as amended, of
beneficial ownership of NACCO Class A Shares and/or NACCO Class B Shares,
subject to the NACCO Stockholders' Agreement, as amended from time to time,
including all statements on Schedule 13D and all amendments thereto, all joint
filing agreements pursuant to Rule 13d-l(f)(iii) under such Act in connection
with such statements, all initial statements of beneficial ownership on Form 3
and any and all other documents to be filed with the Securities and Exchange
Commission, and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission.
Each Partner grants to said attorney or attorneys-in-fact, and each of them,
full power and authority to do so and to perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorney or attorneys-in-fact or any of
them or their substitutes or resubstitutes, may lawfully do or cause to be done
by virtue of this Section 10.
10.2 Irrevocable Nature. It is expressly intended by each Partner that
the foregoing power of attorney is a special power of attorney coupled with an
interest in favor of each of those appointed as attorney-in-fact on his, her or
its behalf, and as such shall be irrevocable and shall survive such Partner's
death, incompetence (including an adjudication of insanity) or, in the case of a
Limited Partner which is not a natural person, its merger, dissolution or other
termination of existence.
25
10.3 Further Assurances - Power of Attorney. If applicable law requires
additional or substituted language in order to validate the power of attorney
intended to be granted by this Section 10, each Shareholder agrees to execute
and deliver such additional instruments and to take such further acts as may be
necessary to validate such power of attorney.
10.4 Transfer of Partnership Interests. The foregoing power of attorney
shall survive the delivery of an instrument of transfer by any Partner of the
whole or any portion of or interest in his, her or its Partnership Interest,
except that where a transferee of such Partnership Interest has been approved as
a successor Partner and the transferee shall thereupon cease being a Partner
(all in accordance with this Agreement), then the power of attorney of the
transferor Partner shall survive the delivery of such instrument of transfer for
the sole purpose of enabling the attorneys-in-fact for such transferor Partner
(or any of them) to execute, swear to, acknowledge and file any and all
instruments necessary to effectuate such transfer and succession.
11. GENERAL PROVISIONS.
11.1 Obtaining Partner Approvals of Partnership Actions. The requisite
approval of the General Partners or Partners, whichever is appropriate, may take
the form of the approval of an outline of the general terms of the transaction,
and the negotiation of detailed terms may be delegated to the Managing Partner
or to any one or more specified Partners, or the approval may be in the form of
a blanket delegation of authority to the Managing Partner or to any one or more
specified Partners to act on behalf of the Partnership in regard to a particular
transaction that is being considered.
11.2 Arbitration. Any dispute arising in connection with this Agreement
shall be an Arbitrable Dispute and shall be finally settled by arbitration under
the then applicable Commercial Arbitration Rules of the American Arbitration
Association, by one or more arbitrators agreed upon by the parties or, in the
absence of such an agreement, appointed in accordance with such Rules. The
arbitration proceedings shall be held in Cleveland, Ohio. Judgment upon the
award rendered may be entered in any court having jurisdiction and application
may be made to such court for judicial acceptance of such award and an order of
enforcement as the case may be. The Partners hereby agree that the rendering of
an award by the arbitrator or arbitrators shall be a condition precedent to the
initiation of any legal proceedings with respect to any Arbitrable Dispute.
11.3 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given when the
same are (a) delivered in person, or (b) delivered by express or overnight mail
or by certified or registered mail, postage prepaid, to the Partners at the
addresses set forth in Schedule B attached hereto, and to the Partnership at the
address of its principal office, or at such other address as the Partners may
from time to time determine. A delivery receipt shall be conclusive evidence
that the respective mailing has in fact been delivered and the date thereof. Any
Partner may change his or her address for notices by designating a new address
by notice given to the other Partners and the Partnership in accordance with
this Section 11.3.
26
11.4 Waiver of Right to Partition. The Partners, by execution of this
Agreement, waive their respective rights to partition of the Partnership
Property.
11.5 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
11.6 Headings. The section headings in this Agreement are inserted
solely as a matter of convenience and for reference, and are not a substantive
part of this Agreement.
11.7 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersedes and cancels any prior agreements,
representations, warranties, or communications, whether oral or written, among
any parties hereto regarding the transactions contemplated hereby and the
subject matter hereof. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an agreement in
writing signed by the party against whom or which the enforcement of such
change, waiver, discharge or termination is sought. Notwithstanding the
immediately preceding sentence, the Managing Partner may, without the consent of
any other party, amend Schedule A and Schedule B as necessary to reflect the
addition of any new Partners, any additional capital contributions by existing
Partners, or any gifts or other transfers of Interests permitted under the terms
of this Agreement.
11.8 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
11.9 Counterparts. This Agreement and any documents executed in
connection herewith may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
11.10 Pronouns. All pronouns used herein shall be deemed to refer to
the masculine, feminine or neuter gender as the context requires.
11.11 Remedies Cumulative. All rights and remedies granted to the
Partnership or to any Partner hereunder shall be cumulative with, and not in
derogation of or exclusive of, any rights and remedies which may be available by
operation of law or otherwise.
11.12 Further Assurances. Each of the parties hereto agrees to execute
and deliver such instruments, and to take such other actions, as shall be
necessary or appropriate in connection with the consummation of the transactions
contemplated hereby or the operation of the Partnership.
11.13 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to any other Person or circumstance shall not be affected
thereby and shall be enforced to the fullest extent permitted by law.
27
IN WITNESS WHEREOF, the Partners have hereunto set their hands and
seals as of the day and year first above written.
GENERAL PARTNER:
▇▇▇▇▇▇ MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Witness Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
Witness
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
/s/ ▇▇▇▇▇ ▇▇▇ Buyers
Witness
28
{Limited Partner Signature page for Limited Partnership Agreement
for ▇▇▇▇▇▇ Associates II, L.P.}
NATIONAL CITY BANK, as Trustee
under the Agreement dated September
11, 1973, as supplemented, amended
and restated, with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
creating a trust for the benefit of
such individual
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, AVP
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
29
NATIONAL CITY BANK, as Trustee
under the Agreement dated December
29, 1967, as supplemented, amended
and restated, with ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, creating a trust for the
benefit of such individual
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, AVP
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee under
the Agreement dated December 29,
1967, as supplemented, amended and
restated, with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
creating a trust for the benefit of
such individual
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
30
NATIONAL CITY BANK, as Trustee
under the Agreement dated June 22,
1971, as supplemented, amended and
restated, with Claiborne ▇. ▇▇▇▇▇▇,
creating a trust for the benefit of
such individual
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, AVP
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
31
NATIONAL CITY BANK, as Trustee
under the Agreement dated July 12,
1967, as supplemented, amended and
restated, with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
creating a trust for the benefit of
such individual
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, AVP
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., as Trustee
under the Agreement dated July 12,
1967, as supplemented, amended and
restated, with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
creating a trust for the benefit of
such individual
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Witness Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
32
NATIONAL CITY BANK, as Trustee
under the Agreement dated August
30, 1967, as supplemented, amended
and restated, with ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇. creating a trust for
the benefit of such individual
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, AVP
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
33
NATIONAL CITY BANK, as Trustee
under the Agreement dated August
12, 1974, as supplemented, amended
and restated, with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
creating a trust for the benefit of
such individual
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, AVP
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
34
SCHEDULE A
(Original Subscriptions)
PARTNERS / CAPITAL CONTRIBUTIONS
Name CLASS A SHARES CONTRIBUTED Interest
GENERAL PARTNER(S)
▇▇▇▇▇▇ Management, Inc.
(1) ▇▇▇▇▇▇ Management Lot 1 2,000 Shares 0.27089442567
(2) ▇▇▇▇▇▇ Management Lot 2 2,000 Shares 0.27089442567
(3) ▇▇▇▇▇▇ Management Lot 3 2,000 Shares 0.27089442567
(4) ▇▇▇▇▇▇ Management Lot 4 2,000 Shares 0.27089442567
Total for ▇▇▇▇▇▇ Management, Inc.: 8,000 Class A Shares 1.08357770268%
LIMITED PARTNERS
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
(1) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 1 8,600 Shares 1.164846030381
(2) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 2 10,040 Shares 1.359890016863
(3) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 3 2,000 Shares 0.27089442567
(4) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 4 945 Shares 0.1279976161291
(5) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 5 22,880 Shares 3.099032229664
(6) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 6 120 Shares 0.0162536655402
(7) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 7 22,880 Shares 3.099032229664
(8) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 8 11,520 Shares 1.560351891859
(9) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 9 35,500 Shares 4.808376055642
(10) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 10 23,800 Shares 3.223643665472
(11) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 11 323,021 Shares 43.75229413717
(12) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 12 33,307 Shares 4.511340317895
(13) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 13 10,000 Shares 1.35447212835
(14) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 14 56,750 Shares 7.686629328385
Total for ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 561,363 Class A Shares 76.03505373868%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(1) ▇.▇. ▇▇▇▇▇▇ Lot 1 640 Shares 0.08668621621439
(2) ▇.▇. ▇▇▇▇▇▇ Lot 2 800 Shares 0.108357770268
(3) ▇.▇. ▇▇▇▇▇▇ Lot 3 140 Shares 0.0189626097969
(4) ▇.▇. ▇▇▇▇▇▇ Lot 4 1,200 Shares 0.162536655402
(5) ▇.▇. ▇▇▇▇▇▇ Lot 5 2,400 Shares 0.3250733108039
(6) ▇.▇. ▇▇▇▇▇▇ Lot 6 1,800 Shares 0.243804983103
(7) ▇.▇. ▇▇▇▇▇▇ Lot 7 600 Shares 0.08126832770099
(8) ▇.▇. ▇▇▇▇▇▇ Lot 8 1,200 Shares 0.162536655402
(9) ▇.▇. ▇▇▇▇▇▇ Lot 9 2,600 Shares 0.3521627533709
(10) ▇.▇. ▇▇▇▇▇▇ Lot 10 2,660 Shares 0.360289586141
(11) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.04876099662059
(12) ▇.▇. ▇▇▇▇▇▇ Lot 12 3,360 Shares 0.4551026351255
(13) ▇.▇. ▇▇▇▇▇▇ Lot 13 2,000 Shares 0.27089442567
(14) ▇.▇. ▇▇▇▇▇▇ Lot 14 1,600 Shares 0.216715540536
(15) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.027089442567
(16) ▇.▇. ▇▇▇▇▇▇ Lot 16 2,000 Shares 0.27089442567
(17) ▇.▇. ▇▇▇▇▇▇ Lot 17 1,140 Shares 0.1544098226319
(18) ▇.▇. ▇▇▇▇▇▇ Lot 18 1,600 Shares 0.216715540536
(19) ▇.▇. ▇▇▇▇▇▇ Lot 19 2,600 Shares 0.3521627533709
(20) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.0441557913842
(21) ▇.▇. ▇▇▇▇▇▇ Lot 21 1,000 Shares 0.135447212835
(22) ▇.▇. ▇▇▇▇▇▇ Lot 22 8,400 Shares 1.137756587814
(23) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.06772360641749
(24) ▇.▇. ▇▇▇▇▇▇ Lot 24 1,140 Shares 0.1544098226319
(25) ▇.▇. ▇▇▇▇▇▇ Lot 25 24,000 Shares 3.250733108039
(26) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.027089442567
(27) ▇.▇. ▇▇▇▇▇▇ Lot 27 1,100 Shares 0.1489919341185
(28) ▇.▇. ▇▇▇▇▇▇ Lot 28 15,700 Shares 2.126521241509
(29) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.03657074746544
(30) ▇.▇. ▇▇▇▇▇▇ Lot 30 8,800 Shares 1.191935472948
(31) ▇.▇. ▇▇▇▇▇▇ Lot 31 24,000 Shares 3.250733108039
(32) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.05621059332652
(33) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.05146994087729
(34) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.05079270481312
(35) ▇.▇. ▇▇▇▇▇▇ Lot 35 8,200 Shares 1.110667145247
(36) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.027089442567
(37) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.027089442567
(38) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇ 0.002031708192525
(39) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇ 0.0112421186653
(40) ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ 0.01449285177334
(41) ▇.▇. ▇▇▇▇▇▇ Lot 41 3,000 Shares 0.4063416385049
(42) ▇.▇. ▇▇▇▇▇▇ Lot 42 1,370.4 Shares 0.1856168604691
(43) ▇.▇. ▇▇▇▇▇▇ Lot 43 8,200 Shares 1.110667145247
(44) ▇.▇. ▇▇▇▇▇▇ Lot 44 50.6 Shares 0.00685362896945
Total for ▇▇▇▇▇ ▇. ▇▇▇▇▇▇: 136,932 Class A Shares 18.54705774792%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Lot 1 8,000 Class A Shares 1.08357770268%
Claiborne ▇. ▇▇▇▇▇▇ Lot 1 8,000 Class A Shares 1.08357770268%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 1 8,000 Class A Shares 1.08357770268%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(1) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 1 2,000 Shares 0.27089442567
(2) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Lot 2 6,000 Shares 0.8126832770099
Total for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇: 8,000 Class A Shares 1.08357770268%
TOTALS 738,295 Class A Shares 100%
SCHEDULE B
PARTNER ADDRESSES
Street Address/
Name P.O. Box City State Zip Code
GENERAL PARTNER(S)
▇▇▇▇▇▇ Management, Inc. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LIMITED PARTNERS
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Claiborne ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇