EXHIBIT 10.9
[EXECUTION COPY]
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▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P.
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AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
Dated as of July 22, 1998
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED OR UNDER ANY OTHER APPLICABLE SECURITIES
LAWS. SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED
OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR
EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON
TRANSFERABILITY SET FORTH HEREIN.
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS............................................................................. 1
ARTICLE II
ORGANIZATIONAL MATTERS.................................................................. 6
2.1 Formation of Partnership........................................................... 6
2.2 Limited Partnership Agreement...................................................... 6
2.3 Name............................................................................... 6
2.4 Purpose............................................................................ 6
2.5 Principal Office; Registered Office................................................ 6
2.6 Term............................................................................... 6
ARTICLE III
CAPITAL CONTRIBUTIONS................................................................... 7
3.1 General Partner.................................................................... 7
3.2 Limited Partners................................................................... 7
3.3 Capital Accounts................................................................... 7
3.4 No Withdrawal...................................................................... 8
3.5 Loans From Partners or Assignees................................................... 8
3.6 Issuances of Percentage Interests.................................................. 9
ARTICLE IV
DISTRIBUTIONS AND ALLOCATIONS........................................................... 9
4.1 Distributions...................................................................... 9
4.2 Allocations........................................................................ 10
4.3 Special Allocations................................................................ 10
4.4 Tax Allocations.................................................................... 11
4.5 Curative Allocations............................................................... 12
4.6 Indemnification and Reimbursement for Payments on Behalf of a Partner or
Assignee........................................................................... 13
ARTICLE V
MANAGEMENT.............................................................................. 13
5.1 Authority of General Partner....................................................... 13
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5.2 Actions Requiring Approval of Limited Partners.................................... 14
5.3 Partnership Qualifications and Filings............................................ 14
5.4 Reliance by Third Parties......................................................... 14
5.5 Compensation and Reimbursement of General Partner................................. 15
5.6 Outside Activities................................................................ 15
5.7 Loans and Guarantees by the General Partner....................................... 16
5.8 Determinations by the General Partner............................................. 16
5.9 Purchase of Percentage Interests.................................................. 16
5.10 Indemnification................................................................... 16
5.11 Limitation of Liability........................................................... 17
ARTICLE VI
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS............................................. 17
6.1 Limitation of Liability........................................................... 17
6.2 Management of Business............................................................ 17
6.3 No Right of Partition............................................................. 18
6.4 Outside Activities................................................................ 18
ARTICLE VII
BOOKS, RECORDS, ACCOUNTING AND REPORTS................................................. 18
7.1 Records and Accounting............................................................ 18
7.2 Fiscal Year....................................................................... 18
7.3 Reports........................................................................... 19
7.4 Transmission of Communications.................................................... 19
ARTICLE VIII
TAX MATTERS............................................................................ 20
8.1 Preparation of Tax Returns........................................................ 20
8.2 Tax Elections..................................................................... 20
8.3 Tax Controversies................................................................. 20
ARTICLE IX
VOTING; AMENDMENTS..................................................................... 20
9.1 Voting Rights..................................................................... 20
9.2 Amendments........................................................................ 21
ARTICLE X
TRANSFER OF PERCENTAGE INTERESTS....................................................... 22
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10.1 Transfer In General................................................................ 22
10.2 Assignee's Rights.................................................................. 22
10.3 Assignor's Rights and Obligations.................................................. 22
10.4 Prohibited Transfers............................................................... 23
ARTICLE XI
ADMISSION OF PARTNERS.................................................................... 23
11.1 Substituted Limited Partners....................................................... 23
11.2 Additional Limited Partners........................................................ 23
11.3 Admission of a Successor General Partner........................................... 24
ARTICLE XII
WITHDRAWAL OR REMOVAL OF PARTNERS........................................................ 24
12.1 Withdrawal of General Partner...................................................... 24
12.2 Removal of General Partner......................................................... 24
12.3 Election of Successor General Partner.............................................. 24
12.4 Purchase of General Partner's Percentage Interest.................................. 25
12.5 Former General Partner's Liabilities............................................... 25
12.6 Withdrawal of Limited Partners..................................................... 25
ARTICLE XIII
DISSOLUTION AND LIQUIDATION.............................................................. 25
13.1 Dissolution........................................................................ 25
13.2 Continuation After Dissolution..................................................... 26
13.3 Liquidation........................................................................ 27
13.4 Distribution in Kind............................................................... 28
13.5 Deficit Makeup..................................................................... 28
13.6 Cancellation of Certificate of Limited Partnership................................. 28
13.7 Reasonable Time for Winding Up..................................................... 29
13.8 Return of Capital.................................................................. 29
ARTICLE XIV
VALUATION................................................................................ 29
14.1 Determination...................................................................... 29
14.2 Determination of Fair Market....................................................... 29
ARTICLE XV
GENERAL PROVISIONS....................................................................... 30
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15.1 Power of Attorney................................................................... 30
15.2 Title to Partnership Assets......................................................... 30
15.3 Addresses and Notices............................................................... 31
15.4 Binding Effect...................................................................... 31
15.5 Creditors........................................................................... 31
15.6 Waiver.............................................................................. 31
15.7 Counterparts........................................................................ 31
15.8 Applicable Law...................................................................... 31
15.9 Severability........................................................................ 31
15.10 Further Action...................................................................... 32
15.11 Expenses............................................................................ 32
15.12 Offset.............................................................................. 32
15.13 Entire Agreement.................................................................... 32
15.14 Remedies............................................................................ 32
15.15 Descriptive Headings; Interpretation................................................ 33
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▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P.
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
This AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT, dated as of
July 22, 1998, is entered into by and among the Partners a party hereto.
Pursuant to that certain Amended and Restated Limited Partnership Agreement of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P. dated as of July 1, 1994, (the "Original Agreement"),
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the Original Agreement was amended and restated pursuant to that certain Amended
and Restated Agreement of Limited Partnership of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P.
dated as of September 23, 1994 (the "First Amended and Restated Agreement").
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The First Amended and Restated Agreement was amended and restated pursuant to
that certain Amended and Restated Agreement of Limited Partnership of ▇▇▇▇▇▇▇
▇▇▇▇▇ Rental, L.P., dated as of January 1, 1997 (the "Second Amended and
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Restated Agreement"). The Second Amended and Restated Agreement was amended and
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restated pursuant to that certain Amended and Restated Agreement of Limited
Partnership of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P., dated as of July 31, 1998 (the "Third
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Amended and Restated Agreement"). The parties hereto desire to amend and
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restate the Third Amended and Restated Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby amend and restate the Third Amended and Restated Agreement as
follows:
ARTICLE I
DEFINITIONS
The following definitions shall be applied to the terms used in this
Agreement for all purposes, unless otherwise clearly indicated to the contrary.
"Additional Partner" means a Person admitted to the Partnership as a
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Partner pursuant to Section 11.2.
"Adjusted Capital Account Deficit" means with respect to any Capital
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Account as of the end of any Taxable Year, the amount by which the adjusted
balance in such Capital Account is less than zero. For this purpose, such
Person's Capital Account balance shall be
(a) reduced for any items described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5), and (6), and
(b) increased for any amount such Person is obligated to contribute
or is treated as being obligated to contribute to the Partnership
pursuant to Treasury
Regulation Section 1.704-1(b)(2)(ii)(c) (relating to partner
liabilities to a partnership) or 1.704-2(g)(1) and 1.704-2(i)
(relating to minimum gain).
"Admission Date" is defined in Section 10.3.
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"Affiliate" of any Person means any Person that directly or indirectly
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controls, is controlled by, or is under common control with the Person in
question.
"Agreement" means this Amended and Restated Limited Partnership
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Agreement of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P. dated as of the date hereof.
"Assignee" means a Person to whom a Percentage Interest has been
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transferred, but who has not become a Partner pursuant to Article XI.
"Base Rate" means, on any date, a variable rate per annum equal to the
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rate of interest most recently published by The Wall Street Journal as the
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"prime rate" at large U.S. money center banks.
"Book Value" means, with respect to any Partnership property, the
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Partnership's adjusted basis for federal income tax purposes, adjusted from time
to time to reflect the adjustments required or permitted by Treasury Regulation
Section 1.704-1(b)(2)(iv)(d)-(g).
"Capital Account" means the capital account maintained for a Partner
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pursuant to Section 3.3.
"Capital Contribution" means any cash, cash equivalents, surrender of
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entitlement to deferred compensation (to the extent of the amount so
surrendered), promissory obligations or the Fair Market Value of other property
which a Partner contributes or is deemed to have contributed to the Partnership
pursuant to Section 3.1, 3.2 or 5.1.
"Certificate" means the Partnership's Certificate of Limited
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Partnership as filed with the Secretary of State of Pennsylvania.
"Code" means the United States Internal Revenue Code of 1986, as
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amended. Such term shall be deemed to include any future amendments to the Code
and any corresponding provisions of succeeding Code provisions (whether or not
such amendments and corresponding provisions are mandatory or discretionary) to
the extent that the General Partner determines in good faith that any such
future amendments and corresponding provisions do not adversely affect the
economic Interests of any of the Partners hereunder.
"Distribution" means each distribution made by the Partnership to a
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Partner, whether in cash, property or securities of the Partnership and whether
by liquidating distribution, redemption, repurchase or otherwise; provided that
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none of the following shall be a Distribution: (a) any redemption or repurchase
by the Partnership of any Equity Securities, and (b) any recapitalization
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or exchange of securities of the Partnership, and any subdivision (by Percentage
Interest split or otherwise) or any combination (by reverse Percentage Interest
split or otherwise) of any outstanding Percentage Interests.
"Equity Securities" means (a) Percentage Interests or other equity
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Interests in the Partnership (including other classes or groups thereof having
such relative rights, powers and duties as may from time to time be established
by the General Partner, including rights, powers and/or duties senior to
existing classes and groups of Percentage Interests and other equity Interests
in the Partnership), (b) obligations, evidences of indebtedness or other
securities or Interests convertible or exchangeable into Percentage Interests or
other equity Interests in the Partnership and (c) warrants, options or other
rights to purchase or otherwise acquire Percentage Interests or other equity
Interests in the Partnership.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended.
"Event of Withdrawal" means the death, retirement, resignation,
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expulsion, bankruptcy or dissolution of a Partner or the occurrence of any other
event that terminates the continued partnership of a Partner in the Partnership
under the Pennsylvania Act.
"Fair Market Value" means, with respect to any asset or equity
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interest, its fair market value determined according to Article XIV.
"Fiscal Period" means any interim accounting period within a Taxable
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Year established by the General Partner and which is permitted or required by
Code Section 706.
"Fiscal Year" means the Partnership's annual accounting period
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established pursuant to Section 7.2.
"General Partner" means ACR Management, L.L.C., a Delaware limited
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liability Company, in its capacity as general partner of the Partnership, and
any successor general partner of the Partnership appointed pursuant to the terms
of this Agreement.
"Governmental Entity" means the United States of America or any other
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nation, any state or other political subdivision thereof, or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government.
"Indemnified Person" is defined in Section 5.10.
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"Liens" means any mortgage, pledge, security interest, encumbrance,
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lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof), any sale of
receivables with recourse against the Partnership, any Subsidiary or any
Affiliate, any filing or agreement to file a financing statement as debtor under
the Uniform Commercial Code or any similar statute other than to reflect
ownership by a third party of property leased to the Partnership or any
Subsidiaries under a lease which is not in the nature of a
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conditional sale or title retention agreement, or any subordination arrangement
in favor of another Person (other than any subordination arising in the ordinary
course of business).
"Limited Partner" means each of the limited partners named on Schedule
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I attached hereto and any Person admitted to the Partnership as a Substituted
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Partner or Additional Partner; but only so long as such Person is shown on the
Partnership's books and records as the owner of one or more Percentage
Interests.
"Losses" means items of Partnership loss and deduction determined
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according to Section 3.3.
"Majority in Interest" means Partners and/or Assignees holding a
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majority of all Percentage Interests.
"Minimum Gain" means the partnership minimum gain determined pursuant
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to Treasury Regulation Section 1.704-2(d).
"Partner" means a General Partner or a Limited Partner.
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"Partnership" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental, L.P., a Pennsylvania limited
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partnership, established in accordance with this Agreement as such limited
partnership may be from time to time constituted, and including its successors.
"Percentage Interest" means the interest of a Partner or Assignee in
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the Profits, Losses and Distributions of the Partnership, as set forth on
Schedule I attached hereto and as amended from time to time.
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"Pennsylvania Act" means the Pennsylvania Revised Uniform Limited
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Partnership Act, as it may be amended from time to time, and any successor to
the Pennsylvania Act.
"Person" means an individual or a corporation, partnership, limited
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liability company, trust, unincorporated organization, association or other
entity.
"Profits" means items of Partnership income and gain determined
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according to Section 3.3.
"Securities Act" means the Securities Act of 1933, as amended from
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time to time, and applicable rules and regulations thereunder, and any successor
to such statute, rules or regulations. Any reference herein to a specific
section, rule or regulation of the Securities Act shall be deemed to include any
corresponding provisions of future law.
"Subsidiary" means, with respect to any Person, any corporation,
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limited partnership, partnership, association or business entity of which (a) if
a corporation, a majority of the total value of all classes of stock or the
total voting power of shares of stock entitled (without regard to the
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occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (b) if a limited partnership, partnership, association
or other business entity (other than a corporation), a majority of partnership
or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of that Person
or a combination thereof. For purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a limited partnership,
partnership, association or other business entity (other than a corporation) if
such Person or Persons shall be allocated a majority of the limited partnership,
partnership, association or other business entity gains or losses or shall be or
control any managing member or general partner of such limited partnership,
partnership, association or other business entity. For purposes hereof,
references to a "Subsidiary" of the Partnership shall be given effect only at
such times that the Partnership has one or more Subsidiaries, and, unless
otherwise indicated, the term "Subsidiary" refers to a Subsidiary of the
Partnership.
"Substituted Partner" means a Person that is admitted as a Partner to
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the Partnership pursuant to Section 11.1.
"Successor General Partner" means a Person that is admitted as a
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Partner to the Partnership pursuant to Section 11.3.
"Tax Matters Partner" has the meaning given to such term in Section
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6231 of the Code.
"Taxable Year" means the Partnership's accounting period for federal
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income tax purposes which shall be the same as the Partnerships' Fiscal Year
determined pursuant to Section 7.2.
"Treasury Regulations" means the income tax regulations promulgated
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under the Code and effective as of the date hereof. Such term shall be deemed
to include any future amendments to such regulations and any corresponding
provisions of succeeding regulations (whether or not such amendments and
corresponding provisions are mandatory or discretionary) to the extent that the
General Partner determines in good faith that any such future amendments and
corresponding provisions do not adversely affect the economic Interests of any
of the Partners hereunder.
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ARTICLE II
ORGANIZATIONAL MATTERS
2.1 FORMATION OF PARTNERSHIP. The Partnership was formed on July 1,
1994, as amended and restated on September 23, 1994, as of January 1, 1997, as
of June 30, 1998, and again on the date of this Agreement pursuant to the
provisions of the Pennsylvania Act and the provisions of this Agreement.
2.2 LIMITED PARTNERSHIP AGREEMENT. The Partners hereby execute this
Agreement for the purpose of establishing the affairs of the Partnership and the
conduct of its business in accordance with the provisions of the Pennsylvania
Act. The Partners hereby agree that during the term of the Partnership set
forth in Section 2.6 the rights and obligations of the Partners and Assignees
with respect to the Partnership will be determined in accordance with the terms
and conditions of (a) this Agreement, and (b) the Pennsylvania Act, except where
the Pennsylvania Act provides that such rights and obligations specified in the
Pennsylvania Act shall apply "unless otherwise provided in a limited partnership
agreement" or words of similar effect, and such rights and obligations are set
forth in this Agreement.
2.3 NAME. The name of the Partnership shall be "▇▇▇▇▇▇▇ ▇▇▇▇▇
Rental, L.P." The General Partner in its sole discretion may change the name of
the Partnership at any time and from time to time. Notification of any such
change shall be given to all Partners and Assignees. The Partnership's business
may be conducted under its name and/or any other name or names deemed advisable
by the General Partner.
2.4 PURPOSE. The purpose and business of the Partnership shall be
any business which may lawfully be conducted by a limited partnership formed
pursuant to the Pennsylvania Act.
2.5 PRINCIPAL OFFICE; REGISTERED OFFICE. The principal office of the
Partnership shall be at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or such other place as the General Partner may from time to time designate. The
Partnership may maintain offices at such other place or places as the General
Partner deems advisable. Notification of any such change shall be given to all
Partners and Assignees. The address of the registered office of the Partnership
in the Commonwealth of Pennsylvania shall be the address of its principal
office.
2.6 TERM. The term of the Partnership commenced upon the filing of
the Certificate in accordance with the Pennsylvania Act and shall continue in
existence until termination and dissolution thereof in accordance with the
provisions of Article XIII.
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ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 GENERAL PARTNER. The General Partner has purchased the number of
Percentage Interests from the Partnership as set forth on Schedule I.
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3.2 LIMITED PARTNERS.
(a) Each Limited Partner has acquired the number of Percentage
Interests from the Partnership as set forth on Schedule I.
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(b) Each Limited Partner who is subsequently issued Percentage
Interests by the Partnership pursuant to Section 3.6 shall make the Capital
Contributions to the Partnership determined under Section 3.6 in exchange for
such Percentage Interests.
3.3 CAPITAL ACCOUNTS.
(a) The Partnership shall maintain a separate Capital Account for
each Partner and Assignee according to the rules of Treasury Regulation Section
1.704-1(b)(2)(iv). For this purpose, the Partnership may (in the discretion of
the General Partner), upon the occurrence of the events specified in Treasury
Regulation Section 1.704-1(b)(2)(iv)(f), increase or decrease the Capital
Accounts in accordance with the rules of such regulation and Treasury Regulation
Section 1.704-1(b)(2)(iv)(g) to reflect a revaluation of Partnership property.
The Partners hereby agree that the respective Capital Account balances for each
Partner have been adjusted as of the date of this Agreement as set forth on
Schedule II.
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(b) For purposes of computing the amount of any item of Partnership
income, gain, loss or deduction to be allocated pursuant to Article IV and to be
reflected in the Capital Accounts, the determination, recognition and
classification of any such item shall be the same as its determination,
recognition and classification for federal income tax purposes (including any
method of depreciation, cost recovery or amortization used for this purpose);
provided that:
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(i) The computation of all items of income, gain, loss and deduction
shall include those items described in Code Section 705(a)(l)(B)
or Code Section 705(a)(2)(B) and Treasury Regulation Section
1.704-1(b)(2)(iv)(i), without regard to the fact that such items
are not includable in gross income or are not deductible for
federal income tax purposes.
(ii) If the Book Value of any Partnership property is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or
(f), the amount of such adjustment shall be taken into account as
gain or loss from the disposition of such property.
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(iii) Items of income, gain, loss or deduction attributable to the
disposition of Partnership property having a Book Value that
differs from its adjusted basis for tax purposes shall be
computed by reference to the Book Value of such property.
(iv) Items of depreciation, amortization and other cost recovery
deductions with respect to Partnership property having a Book
Value that differs from its adjusted basis for tax purposes
shall be computed by reference to the property's Book Value in
accordance with Treasury Regulation Section 1.704-
1(b)(2)(iv)(g).
(v) To the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Code Sections 732(d), 734(b) or
743(b) is required, pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining
Capital Accounts, the amount of such adjustment to the Capital
Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment
decreases such basis).
(vi) Payments made to any Partner which are treated for Federal
income tax purposes as guaranteed payments pursuant to Code
Section 707(c) shall be treated as Partnership expenses and
shall not be reflected as distributions which reduce the
distributee Partner's respective Capital Account balance;
provided that such payments shall be treated as capital
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expenditures of the Partnership to the extent such payments are
required to be capitalized under the Code and any applicable
Treasury Regulations thereunder.
3.4 NO WITHDRAWAL No Person shall be entitled to withdraw any part
of such Person's Capital Contribution or Capital Account or to receive any
Distribution from the Partnership, except as expressly provided herein.
3.5 LOANS FROM PARTNERS OR ASSIGNEES. Loans by Partners or
Assignees to the Partnership shall not be considered Capital Contributions. If
any Partner or Assignee shall transfer funds to the Partnership in excess of the
amounts required hereunder to be contributed by such Partner or Assignee to the
capital of the Partnership, the transfer of such excess shall not result in any
increase in the amount of the Capital Account of such Partner or Assignee. The
amount of any such excess, to the extent approved by the General Partner and the
Partner or Assignee, shall be a debt of the Partnership to such Partner or
Assignee and shall be payable or collectible in accordance with the terms and
conditions upon which such loans are made.
3.6 ISSUANCES OF PERCENTAGE INTERESTS. The General Partner shall
have sole and complete discretion in determining whether to issue Percentage
Interests, the number of Percentage
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Interests to be issued at any particular time, the Capital Contribution for any
Percentage Interests issued and all other terms and conditions of the issuance
of Percentage Interests.
ARTICLE IV
DISTRIBUTIONS AND ALLOCATIONS
4.1 DISTRIBUTIONS.
(a) Except as otherwise set forth in Section 4.1(b), the General
Partner may in its sole discretion make Distributions at any time or from time
to time. Each Distribution shall be made ratably among such Partners and
Assignees based upon the number of outstanding Percentage Interests held by each
such Partners and Assignees immediately prior to such Distribution.
(b) Notwithstanding anything to the contrary herein, to the extent
that funds are available to the Partnership, the Partnership shall, subject to
any restrictions contained in the financing agreements to which the Partnership
or any of its Affiliates is a party, distribute to each Partner and Assignee
within 75 days after the close of each Taxable Year (or at such earlier times
and in such amounts as determined in good faith by the General Partner to be
appropriate to enable the Partner or Assignee to pay estimated income tax
liabilities) an amount equal to 46% (or, at the General Partner's sole
discretion such greater or lesser percentage as the General Partner may
determine in good faith from time to time, to represent the sum of the maximum
marginal federal, state and local income tax rates applicable to all Partners
and Assignees or their partners or stockholders, if applicable) of:
(i) the Profits for such Taxable Year allocated to such Partner or
Assignee pursuant to Section 4.2 and 4.3, reduced by, at the
discretion of the General Partner
(ii) the sum of (x) the Losses for such Taxable Year allocated to such
Partner or Assignee pursuant to Sections 4.2 and 4.3 and (y) the
excess of the aggregate Losses over the aggregate Profits for all
prior Taxable Years allocated to such Partner or Assignee
pursuant to Sections 4.2 and 4.3, but only to the extent that
such excess Losses have not expired unused pursuant to applicable
Code provisions.
Distributions made pursuant to Section 4.1(b) shall be treated as
Distributions made pursuant to Section 4.1(a); provided that any distribution to
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a Partner pursuant to Section 4.1(b) which exceeds the amount that would have
been distributed to such Partner had the amount distributed pursuant to Section
4.1(b) been distributed pursuant to Section 4.1(a) shall be treated as an
advance distribution under Section 4.1(a) and shall be offset against subsequent
distributions such Partner would otherwise be entitled to receive pursuant to
Section 4.1(a).
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4.2 ALLOCATIONS.
(a) Except as otherwise provided in Section 4.3 below, Profits and
Losses for any Fiscal Year shall be allocated among the Partners and Assignees
in such a manner that, as of the end of such Fiscal Year, the sum of (i) the
Capital Account of each Partner or Assignee, (ii) such Partner or Assignee's
share of Minimum Gain (as determined according to Treasury Regulation Section
1.704-2(g)) and (iii) such Partner or Assignee's partner nonrecourse debt
minimum gain (as defined in Treasury Regulation Section 1.704-2(i)(3)) shall be
equal to the respective net amounts, positive or negative, which would be
distributed to them or for which they would be liable to the Partnership under
the Pennsylvania Act, determined as if the Partnership were to (i) liquidate the
assets of the Partnership for an amount equal to their Book Value and (ii)
distribute the proceeds of liquidation pursuant to Section 13.3.
(b) For purposes of this Section 4.2, but subject to the provisions
of Sections 4.3 and 4.5, if Profits exceed Losses for a Fiscal Year, (i) Losses
shall first be allocated to Partners and Assignees whose Capital Accounts are to
be reduced as a result of the allocations under Section 4.2(a), in an amount
equal to the amount by which such Capital Accounts need to be reduced and (ii)
Profits and any remaining Losses shall be allocated to Partners and Assignees
whose Capital Accounts are to be increased as a result of the allocations under
Section 4.2(a), in the proportion that the amount of the increase in such
Partner or Assignee's Capital Accounts as a result of the allocations under
Section 4.2(a) bears to the aggregate amount of the increase in all such Partner
or Assignee's Capital Accounts as a result of the allocations under Section
4.2(a).
(c) For purposes of this Section 4.2, but subject to the provisions
of Sections 4.3 and 4.5, if Losses exceed Profits for a Fiscal Year, (i) Profits
shall first be allocated to Partners and Assignees whose Capital Accounts are to
be increased as a result of the allocations under Section 4.2(a), in an amount
equal to the amount by which such Capital Accounts need to be increased and (ii)
Losses and any remaining Profits shall be allocated to Partners and Assignees
whose Capital Accounts are to be reduced as a result of the allocations under
Section 4.2(a), in the proportion that the amount of the reduction in such
Partners and Assignees' Capital Accounts as a result of the allocations under
Section 4.2(a) bears to the aggregate amount of the reduction in all such
Partners and Assignees' Capital Accounts as a result of the allocations under
Section 4.2(a).
4.3 SPECIAL ALLOCATIONS.
(a) Losses attributable to partner nonrecourse debt (as defined in
Treasury Regulation Section 1.704-2(b)(4)) shall be allocated in the manner
required by Treasury Regulation Section 1.704-2(i). If there is a net decrease
during a Taxable Year in partner nonrecourse debt minimum gain (as defined in
Treasury Regulation Section 1.704-2(i)(3)), Profits for such Taxable Year (and,
if necessary, for subsequent Taxable Years) shall be allocated to the Partners
and Assignees in the amounts and of such character as determined according to
Treasury Regulation Section 1.704-2(i)(4).
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(b) Nonrecourse deductions (as determined according to Treasury
Regulation Section 1.704-2(b)(1)) for any Taxable Year shall be allocated to
each holder of Percentage Interests ratably among such Partners and Assignees
based upon the number of outstanding Percentage Interests held by each such
Partner or Assignee immediately prior to such allocation. Except as otherwise
provided in Section 4.3(a), if there is a net decrease in the Minimum Gain
during any Taxable Year, each Partner or Assignee shall be allocated Profits for
such Taxable Year (and, if necessary, for subsequent Taxable Years) in the
amounts and of such character as determined according to Treasury Regulation
Section 1.704-2(f). This Section 4.3(b) is intended to be a minimum gain
chargeback provision that complies with the requirements of Treasury Regulation
Section 1.704-2(f), and shall be interpreted in a manner consistent therewith.
(c) If any Partner or Assignee that unexpectedly receives an
adjustment, allocation or distribution described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6) has an Adjusted Capital Account Deficit as
of the end of any Taxable Year, computed after the application of Sections
4.3(a) and 4.3(b) but before the application of any other provision of this
Article IV, then Profits for such Taxable Year shall be allocated to such
Partner or Assignee in proportion to, and to the extent of, such Adjusted
Capital Account Deficit. This Section 4.3(c) is intended to be a qualified
income offset provision as described in Treasury Regulation Section 1.704-
1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.
(d) Profits and Losses described in Section 3.3(b)(v) shall be
allocated in a manner consistent with the manner that the adjustments to the
Capital Accounts are required to be made pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(j), (k) and (m).
(e) If, and to the extent that, any Partner or Assignee is deemed to
recognize any item of income, gain, loss, deduction or credit as a result of any
transaction between such Partner or Assignee and the Partnership pursuant to
Code Sections 1272-1274, 7872, 483, 482 or any similar provision now or
hereafter in effect, and the General Partner determines that any corresponding
Profit or Loss of the Partnership should be allocated to the Partner or Assignee
who recognized such item in order to reflect the Partner or Assignee's economic
interests in the Partnership, then the General Partner may so allocate such
Profit or Loss.
4.4 TAX ALLOCATIONS.
(a) The income, gains, losses, deductions and credits of the
Partnership will be allocated, for federal, state and local income tax purposes,
among the Partners and Assignees in accordance with the allocation of such
income, gains, losses, deductions and credits among the Partners and Assignees
for computing their Capital Accounts; except that if any such allocation is not
permitted by the Code or other applicable law, the Partnership's subsequent
income, gains, losses, deductions and credits will be allocated among the
Partners and Assignees so as to reflect as nearly as possible the allocation set
forth herein in computing their Capital Accounts.
(b) Items of Partnership taxable income, gain, loss and deduction
with respect to any property contributed to the capital of the Partnership shall
be allocated among the Partners and
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Assignees in accordance with Code Section 704(c) so as to take account of any
variation between the adjusted basis of such property to the Partnership for
federal income tax purposes and its Book Value.
(c) If the Book Value of any Partnership asset is adjusted pursuant
to the requirements of Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f)
subsequent allocations of items of taxable income, gain, loss and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such asset for federal income tax purposes and its Book Value in the
same manner as under Code Section 704(c).
(d) Allocations of tax credits, tax credit recapture, and any items
related thereto shall be allocated to the Partners and Assignees according to
their Interests in such items as determined by the General Partner taking into
account the principles of Treasury Regulation Section 1.704-1(b)(4)(ii).
(e) Allocations pursuant to this Section 4.4 are solely for purposes
of federal, state and local taxes and shall not affect, or in any way be taken
into account in computing, any Partner's Capital Account or share of Profits,
Losses, Distributions or other Partnership items pursuant to any provision of
this Agreement.
4.5 CURATIVE ALLOCATIONS. The allocations set forth in Section 4.3
(the "Regulatory Allocations") are intended to comply with certain requirements
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of Sections 1.704-1(b) and 1.704-2 of the Treasury Regulations. The Regulatory
Allocations may not be consistent with the manner in which the Partners and
Assignees intend to allocate Profit and Loss of the Partnership or make
Partnership distributions. Accordingly, notwithstanding the other provisions of
this Article IV, but subject to the Regulatory Allocations, income, gain,
deduction, and loss shall be reallocated among the Partners and Assignees so as
to eliminate the effect of the Regulatory Allocations and thereby cause the
respective Capital Accounts of the Partners and Assignees to be in the amounts
(or as close thereto as possible) they would have been if Profit and Loss (and
such other items of income, gain, deduction and loss) had been allocated without
reference to the Regulatory Allocations. In general, the Partners and Assignees
anticipate that this will be accomplished by specially allocating other Profit
and Loss (and such other items of income, gain, deduction and loss) among the
Partners and Assignees so that the net amount of the Regulatory Allocations and
such special allocations to each such Partner or Assignee is zero. In addition,
if in any Fiscal Year or Fiscal Period there is a decrease in partnership
minimum gain, or in partner nonrecourse debt minimum gain, and application of
the minimum gain chargeback requirements set forth in Section 4.3(a) or Section
4.3(b) would cause a distortion in the economic arrangement among the Partners
and Assignees, the Partners and Assignees may, if they do not expect that the
Partnership will have sufficient other income to correct such distortion,
request the Internal Revenue Service to waive either or both of such minimum
gain chargeback requirements. If such request is granted, this Agreement shall
be applied in such instance as if it did not contain such minimum gain
chargeback requirement.
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4.6 INDEMNIFICATION AND REIMBURSEMENT FOR PAYMENTS ON BEHALF OF A
PARTNER OR ASSIGNEE. Except as otherwise provided in Section 15.11, if the
Partnership is obligated to pay any amount to a Governmental Entity (or
otherwise makes a payment to a Governmental Entity) that is specifically
attributable to a Partner or Assignee or a Partner or Assignee's status as such
(including federal withholding taxes, state personal property taxes, and state
unincorporated business taxes), then such Person shall indemnify the Partnership
in full for the entire amount paid (including interest, penalties and related
expenses). The General Partner may offset Distributions to which a Person is
otherwise entitled under this Agreement against such Person's obligation to
indemnify the Partnership under this Section 4.6. A Partner or Assignee's
obligation to make contributions to the Partnership under this Section 4.6 shall
survive the termination, dissolution, liquidation and winding up of the
Partnership, and for purposes of this Section 4.6, the Partnership shall be
treated as continuing in existence. The Partnership may pursue and enforce all
rights and remedies it may have against each Partner or Assignee under this
Section 4.6, including instituting a lawsuit to collect such contribution with
interest calculated at a rate equal to the Base Rate plus three percentage
points per annum (but not in excess of the highest rate per annum permitted by
law).
ARTICLE V
MANAGEMENT
5.1 AUTHORITY OF GENERAL PARTNER. Except for situations in which the
approval of the Partners is specifically required by this Agreement, but subject
to the rights of the Limited Partners to remove the General Partner pursuant to
Section 12.2 (a) the General Partner shall conduct, direct and exercise full
control over all activities of the Partnership and (b) all management powers
over the business and affairs of the Partnership shall be exclusively vested in
the General Partner. Without limiting the generality of the foregoing, (i) the
General Partner shall have sole and complete discretion in determining whether
to issue Equity Securities, the number of Equity Securities to be issued at any
particular time, the Capital Contribution or purchase price for any Equity
Securities issued, and all other terms and conditions governing the issuance of
Equity Securities and (ii) subject to the provisions of Section 13.9, the
General Partner may in its sole and complete discretion enter into, approve, and
consummate any merger, consolidation, sale of all or any part of its assets or
other extraordinary transaction, and execute and deliver on behalf of the
Partnership or the Partners and Assignees any agreement, document and instrument
in connection therewith (including amendments, if any, to this Agreement or
adoptions of new constituent documents) without the approval or consent of any
Partner or Assignee. No Limited Partner shall have the authority to bind the
Partnership, unless such authority has been granted to such Limited Partner by
the General Partner.
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5.2 ACTIONS REQUIRING APPROVAL OF LIMITED PARTNERS. Nothing in
Section 5.1 shall give the General Partner the authority to take any action
requiring the approval of the Limited Partners pursuant to Sections 9.1 and 9.2
without obtaining such approval.
5.3 PARTNERSHIP QUALIFICATIONS AND FILINGS. The General Partner
shall cause to be filed such other certificates or documents as may be
determined by the General Partner in its sole discretion to be necessary or
appropriate for the continuation, qualification and operation of a limited
partnership in the State of Pennsylvania and any other jurisdiction in which the
Partnership may elect to do business. Subject to applicable law, the General
Partner may omit from any and all filings in, and reports to, any state, and
from all amendments thereto, the names and addresses of the Partners,
information relating to the Partners' Capital Contributions and shares of
Profits, Losses and information relating to compensation of the Partners, or may
state such information in the aggregate rather than with respect to each
individual Partner. The General Partner shall not be required to deliver or
mail a copy of the Certificate of Limited Partnership or any amendment thereto
to any Limited Partner. Notwithstanding any of the foregoing provisions, the
General Partner shall on a timely basis make all reports or filings which are
necessary to preserve the limited liability of the Limited Partners under
applicable law.
5.4 RELIANCE BY THIRD PARTIES. Any other provision of this Agreement
to the contrary notwithstanding, no lender or purchaser (including any purchaser
of property from the Partnership) or other Person dealing with the Partnership,
shall be required to verify any representation by the General Partner as to the
extent of the interest in the assets of the Partnership that the General Partner
is entitled to encumber, sell or otherwise use. Any such lender, purchaser or
other Person shall be entitled to rely exclusively on the representations of the
General Partner as to its authority to enter into such financing or sale
arrangements and shall be entitled to deal with the General Partner as if it
were the sole party in interest therein, both legally and beneficially. Each
Limited Partner hereby waives any and all defenses or other remedies that may be
available against such lender, purchaser or other Person to contest, negate or
disaffirm any action of the General Partner in connection with any sale or
financing. In no event shall any person dealing with the General Partner or the
General Partner's representative with respect to any business or property of the
Partnership be obligated to inquire into the necessity or expedience of any act
or action of the General Partner or the General Partner's representative. Every
contract, agreement, deed, mortgage, security agreement, promissory note or
other instrument or document executed by the General Partner or the General
Partner's representative with respect to any business or property of the
Partnership shall be conclusive evidence in favor of any and every Person
relying thereon or claiming thereunder that (a) at the time of the execution or
delivery thereof this Agreement was in full force and effect, (b) such
instrument or document was duly executed according to this Agreement and is
binding upon the Partnership and (c) the General Partner or the General
Partner's representative was duly authorized and empowered to execute and
deliver any and every such instrument or document for and on behalf of the
Partnership.
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5.5 COMPENSATION AND REIMBURSEMENT OF GENERAL PARTNER.
(a) Except as provided in this Section 5.5 or elsewhere in this
Agreement, the General Partner shall not be compensated for its services as
General Partner to the Partnership.
(b) The General Partner shall be reimbursed on a monthly basis for
(i) all actual out-of-pocket expenses, disbursements and advances it pays or
incurs in connection with the formation and business of the Partnership,
including all expenses, disbursements and advances for legal, accounting,
printing and banking matters, consultants and other third parties, reasonable
travel expenses, and filing fees, and (ii) that portion of the General Partner's
legal and accounting expenses, telephone, secretarial, travel and entertainment
expenses, office rent and other office expenses, salaries and other compensation
expenses of employees, and other expenses necessary or appropriate to the
conduct of the Partnership's business which is properly allocable to the
Partnership. The General Partner shall determine the expenses which are
allocable to the Partnership in a reasonable manner.
5.6 OUTSIDE ACTIVITIES.
(a) The General Partner, its Affiliates and each of their respective
stockholders, directors, officers, controlling persons, partners and employees
may have business Interests and engage in business activities in addition to
those relating to the Partnership, except as otherwise agreed by such parties.
Neither the Partnership nor any Partner shall have any rights by virtue of this
Agreement or the partnership relationship created hereby in any such business
Interests or activities of any such Person. The General Partner shall devote to
the management of the Partnership only such time as it determines is necessary
or appropriate to cause the affairs of the Partnership to be conducted in an
efficient and businesslike manner.
(b) No Affiliate of the General Partner shall be obligated to present
any particular investment or business opportunity to the Partnership even if the
opportunity is of a character which, if presented to the Partnership, could be
undertaken by the Partnership. Each Affiliate of the General Partner shall have
the right to undertake any such opportunity for itself for its own account or on
behalf of another or to recommend any such opportunity to other Persons.
5.7 LOANS AND GUARANTEES BY THE GENERAL PARTNER. The General Partner
or any of its Affiliates may lend to the Partnership funds needed by the
Partnership for such periods of time as the General Partner may determine;
provided that the terms of any such loan shall not be less favorable to the
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Partnership than would be available to the Partnership (without reference to the
General Partner's financial condition or guaranties) from unrelated lenders. In
addition, the General Partner may guarantee the payment or collection of any
amounts owed by the Partnership.
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5.8 DETERMINATIONS BY THE GENERAL PARTNER.
(a) Whenever this Agreement or any other agreement contemplated
herein provides that the General Partner shall act in a manner which is, or
provide terms which are, fair and reasonable to the Partnership or any Limited
Partner, the General Partner shall determine such appropriate action or provide
such terms considering, in each case, the relative Interests of each party to
such agreement, transaction or situation and the benefits and burdens relating
to such Interests, any customary or accepted industry practices, and any
applicable United States generally accepted accounting practices or principles.
(b) So long as the General Partner acts in good faith, the
resolution, action or terms so made, taken or provided by the General Partner
shall not constitute a breach of this Agreement or any other agreement
contemplated herein.
5.9 PURCHASE OF PERCENTAGE INTERESTS. The General Partner may cause
the Partnership to purchase or otherwise acquire Percentage Interests, or may
purchase or otherwise acquire Percentage Interests on behalf of the Partnership.
As long as such Percentage Interests are owned by or on behalf of the
Partnership, such Percentage Interests shall not be considered outstanding for
any purpose. The General Partner and its Affiliates may also purchase or
otherwise acquire, or sell or otherwise dispose of, Percentage Interests for
their own account (or as agent) and shall be entitled to exercise all rights of
a Limited Partner with respect to such Percentage Interests.
5.10 INDEMNIFICATION.
(a) The Partnership shall indemnify and hold harmless the General
Partner and each Affiliate, officer, director, controlling person, partner,
employee or shareholder of the General Partner ("Indemnified Person") from and
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against any and all losses, claims, damages, liabilities, expenses (including
reasonable legal fees and expenses), judgments, fines, settlements and other
amounts relating to any and all claims, demands, actions, suits or proceedings,
whether civil, criminal, administrative or investigative, which relate in any
way to the General Partner's status or activities of the General Partner or to
the Partnership's property, business or affairs ("Claims"). An Indemnified
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Person's expenses paid or incurred in defending itself against any Claim shall
be reimbursed as paid or incurred. A Person shall be considered an Indemnified
Person whether or not such Person has the status required to be an Indemnified
Person at the time any such Claim is made or maintained as long as such person
had the status of an Indemnified Person at the time the events which gave rise
to the Claim occurred. This Section 5.10 shall not apply with respect to any
Indemnified Person for that portion of any Claim determined by the final
decision (from which an appeal cannot be taken or is not taken on a timely
basis) of a court of competent jurisdiction to have been caused by his or its
gross negligence, willful misconduct or knowing violation of law. Any payments
made to or on behalf of a Person who is later determined not to be entitled to
such payments shall be refunded to the Partnership promptly following such
determination. Nothing contained in this Section 5.10 shall obligate any Limited
Partner to pay any amount to the Partnership or to any Indemnified Person in
excess of his Capital Contribution.
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(b) The right to indemnification and the advancement of expenses
conferred in this Section 5.10 shall not be exclusive of any other right which
any Person may have or hereafter acquire under any statute, agreement, vote of
Partners or otherwise.
(c) The Partnership may maintain insurance, at its expense, to
protect any Person against any expense, liability or loss, to the extent that
the Partnership would have the power to indemnify such Person against such
expense, liability or loss under the Pennsylvania Act.
5.11 LIMITATION OF LIABILITY. Except as provided in Section 5.10, an
Indemnified Person shall not be liable to the Partnership or any Partner for any
act or omission performed or omitted by such Person pursuant to authority
granted to such Person by this Agreement; provided that such limitation of
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liability shall not apply to the extent the act or omission was attributable to
such Person's negligence, willful misconduct or knowing violation of law. The
General Partner may exercise any of the powers granted to it by this Agreement
and perform any of the duties imposed upon it hereunder either directly or by or
through its agents, and the General Partner shall not be responsible for any
misconduct or negligence on the part of any such agent appointed by the General
Partner (so long as such agent was selected in good faith and with due care) to
the extent that such agent's misconduct or negligence is not caused by and does
not arise out of the General Partner's misconduct or negligence in supervising
the activities of such agent.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
6.1 LIMITATION OF LIABILITY. Except as provided in this Agreement or
in the Pennsylvania Act, the Limited Partners shall have no liability to the
Partnership or any other Partner.
6.2 MANAGEMENT OF BUSINESS. Except for a Limited Partner's rights to
vote in Section 9.1(a) and to vote for the removal of the General Partner
pursuant to Section 12.2, no Limited Partner shall take part in the operation,
management or control (within the meaning of the Pennsylvania Act) of the
Partnership's business or transact any business in the Partnership's name,
unless such Limited Partner is a Person employed or engaged to transact any such
business by or on behalf of the General Partner or the Partnership. The
transaction of any such business by a Limited Partner employed or engaged to do
so by or on behalf of the General Partner or the Partnership shall not be deemed
to constitute participation in control of the Partnership and shall not affect,
impair or eliminate the limitations on the liability of a Limited Partner under
this Agreement.
6.3 NO RIGHT OF PARTITION. No Limited Partner shall have the right
to seek or obtain partition by court decree or operation of law of any
Partnership property, or the right to own or use particular or individual assets
of the Partnership.
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6.4 OUTSIDE ACTIVITIES.
(a) A Limited Partner, its Affiliates and each of their respective
stockholders, directors, officers, controlling persons, partners and employees
may have business Interests and engage in business activities in addition to
those relating to the Partnership, except as otherwise agreed by such parties.
Neither the Partnership nor any of the other Limited Partners shall have any
rights by virtue of this Agreement in any business ventures of any Limited
Partner.
(b) No Affiliate of a Limited Partner or any of its respective
stockholders, directors, officers, controlling persons, partners and employees
shall be obligated to present any particular investment or business opportunity
to the Partnership even if the opportunity is of a character which, if presented
to the Partnership, could be undertaken by the Partnership. The Affiliates of a
Limited Partner and its respective stockholders, directors, officers,
controlling persons, partners and employees shall have the right to undertake
any such opportunity for itself for its own account or on behalf of another or
to recommend any such opportunity to other Persons.
ARTICLE VII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
7.1 RECORDS AND ACCOUNTING. The Partnership shall keep, or cause to
be kept, appropriate books and records with respect to the Partnership's
business, including all books and records necessary to provide any information,
lists and copies of documents required to be provided pursuant to Section 7.3 or
pursuant to applicable laws. All matters concerning (a) the determination of
the relative amount of allocations and distributions among the Partners and
Assignees pursuant to Articles III and IV and (b) accounting procedures and
determinations, and other determinations not specifically and expressly provided
for by the terms of this Agreement, shall be determined by the General Partner,
whose determination shall be final and conclusive as to all of the Partners and
Assignees absent manifest clerical error.
7.2 FISCAL YEAR. The Fiscal Year of the Partnership shall end on
December 31 of each year or such other annual accounting period as may be
established by the General Partner.
7.3 REPORTS.
(a) The Partnership shall deliver or cause to be delivered to each
Partner, within 120 days after the end of each Fiscal Year, an annual report
containing the following:
(i) consolidated statements of income and cash flows of the
Partnership and its Subsidiaries for such Fiscal Year, and a
consolidated balance sheet of the Partnership and its
Subsidiaries as of the end of such Fiscal Year, all prepared in
accordance with generally accepted accounting principals,
consistently applied, and audited by an independent accounting
firm of
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recognized national standing and a copy of such firm's annual
management letter regarding internal controls and other matters
to the General Partner;
(ii) a statement of changes in the Partner's equity and the
Partner's Capital Account balance for such Fiscal Year; and
(iii) a general description of the Partnership's activities during
such Fiscal Year.
(b) The Partnership shall, to the extent required by the
Pennsylvania Act, deliver or cause to be delivered to each Partner or Assignee
with reasonable promptness, such other information and financial data concerning
the Partnership and its Subsidiaries as any Partner or Assignee shall from time
to time reasonably request; provided that furnishing such information shall not
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be financially burdensome on the Partnership, the General Partner or their
Subsidiaries or unreasonably time consuming for the employees of the
Partnership, the General Partner or their Subsidiaries.
(c) The Partnership shall use reasonable efforts to deliver or
cause to be delivered, within 75 days after the end of each Fiscal Year, to each
Person who was a Partner or Assignee at any time during such Fiscal Year all
information necessary for the preparation of such Person's United States federal
and state income tax returns.
7.4 TRANSMISSION OF COMMUNICATIONS. Each Person that owns or
controls Percentage Interests on behalf of, or for the benefit of, another
Person or Persons shall be responsible for conveying any report, notice or other
communication received from the General Partner to such other Person or Persons.
ARTICLE VIII
TAX MATTERS
8.1 PREPARATION OF TAX RETURNS. The Partnership shall arrange for
the preparation and timely filing of all returns required to be filed by the
Partnership.
8.2 TAX ELECTIONS. The Taxable Year shall be the Fiscal Year set
forth in Section 7.2. The General Partner shall, in its sole discretion,
determine whether to make or revoke any available election pursuant to the Code;
provided that upon the request of any Partner, the Partnership shall make a Code
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Section 754 election. Each Partner or Assignee will upon request supply any
information necessary to give proper effect to such election. The General
Partners shall not make an election pursuant to Treasury Regulation 301.7701-1
to be taxed as an association.
8.3 TAX CONTROVERSIES.
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The General Partner is hereby designated the Tax Matters Partner and
is authorized and required to represent the Partnership (at the Partnership's
expense) in connection with all examinations of the Partnership's affairs by tax
authorities, including resulting administrative and judicial proceedings, and to
expend Partnership funds for professional services and reasonably incurred in
connection therewith. Each Partner or Assignee agrees to cooperate with the
Partnership and to do or refrain from doing any or all things reasonably
requested by the Partnership with respect to the conduct of such proceedings.
The Tax Matters Partners shall keep all Partners and Assignees fully informed of
the progress of any examinations, audits or other proceedings, and all Partners
and Assignees shall have the right to participate in any such examinations,
audits or other proceedings. Notwithstanding the foregoing, the Tax Matters
Partners shall not settle or otherwise compromise any issue in any such
examination, audit or other proceeding without first obtaining approval of the
Partners holding a Majority in Interest.
ARTICLE IX
VOTING; AMENDMENTS
9.1 VOTING RIGHTS.
(a) This Agreement provides for voting rights in favor of the
Partners. With respect to any vote of the Partners, each Partner shall be
entitled to one vote for each Percentage Interest held by such Partner.
(b) Anything herein to the contrary notwithstanding, the Partners may
dissolve the Partnership upon the affirmative vote of the Partners owning a
Majority in Interest.
(c) At the General Partner's election, any action that may be taken
at a Partners' meeting may be taken without a meeting if the General Partner
solicits written consents to the action, and if within 90 days after delivery of
the request for written consents, such consents are received from Partners
owning not less than the minimum number of Percentage Interests that would be
necessary to authorize or take such action at a meeting. A written consent to
the taking of any action shall have no force and effect if it is received more
than 90 days after the date of the General Partner's delivery of the written
request soliciting consents to such action. The General Partner shall be solely
responsible for conducting the solicitation of consents and for determining the
validity and effect of responses to the solicitation.
(d) With respect to Percentage Interests that are held for a Person's
account by another Person (such as a broker, dealer, bank, trust company or
clearing corporation, or an agent of any of the foregoing) in whose name
ownership is registered, the Partnership may assume without inquiry that such
broker, dealer or other agent, in exercising any right in respect of such
Percentage Interests on any matter, is exercising such rights according to the
direction of the Person on whose behalf such broker, dealer or other agent is
holding such Percentage Interests.
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9.2 AMENDMENTS.
(a) The General Partner (pursuant to its powers of attorney from the
Limited Partners as provided in Section 15.1), without the consent of any
Limited Partner, may amend any provision of this Agreement, and execute, swear
to, acknowledge, deliver, file and record whatever documents may be required in
connection therewith, to reflect:
(i) a change in the name of the Partnership or the location of
the principal place of business of the Partnership;
(ii) the admission, substitution, removal or withdrawal of
Partners in accordance with this Agreement;
(iii) a change that in the General Partner's reasonable judgment
does not adversely affect any Partner or Assignee in any material respect in its
capacity as an owner of Percentage Interests and is either (A) necessary or
desirable to satisfy any requirements, conditions or guidelines contained in any
opinion, directive, order, ruling or regulation of any United States federal or
state agency or judicial authority or contained in any United States federal or
state statute or (B) required by this Agreement; or
(iv) a change that in the General Partner's reasonable judgment
does not adversely affect any Partner or Assignee in any material respect in its
capacity as an owner of Percentage Interests and (i) cures any ambiguity or (ii)
corrects or supplements any provisions in this agreement.
(b) In all cases other than those provided in Section 9.2(a) above,
this Agreement may be amended upon the consent of the General Partner and the
affirmative vote of the Partners owning a Majority in Interest.
ARTICLE X
TRANSFER OF PERCENTAGE INTERESTS
10.1 TRANSFER IN GENERAL. NO PARTNER OR ASSIGNEE MAY TRANSFER ALL OR
ANY PORTION OF SUCH PARTNER OR ASSIGNEE'S INTEREST IN THE PARTNERSHIP WITHOUT
THE PRIOR WRITTEN CONSENT OF THE GENERAL PARTNER IF SUCH TRANSFER WOULD (A)
CAUSE THE PARTNERSHIP TO HAVE MORE THAN 100 PARTNERS WITHIN THE MEANING OF
TREASURY REGULATION SECTION 1.7704-1(H) OR (B) CAUSE THE PARTNERSHIP TO HAVE TO
REGISTER AS AN INVESTMENT PARTNERSHIP FOR PURPOSES OF THE INVESTMENT PARTNERSHIP
ACT OF 1940, AS AMENDED.
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10.2 ASSIGNEE'S RIGHTS.
(a) A permitted transfer of a Percentage Interest shall be effective as
of the date of assignment and compliance with the conditions to such transfer
and such transfer shall be shown on the books and records of the Partnership.
Profits, Losses and other Partnership items shall be allocated between the
transferor and the Assignee according to Code Section 706. Distributions made
before the effective date of such transfer shall be paid to the transferor, and
Distributions made after such date shall be paid to the Assignee.
(b) Unless and until an Assignee becomes a Partner pursuant to Article
XI, the Assignee shall not be entitled to any of the rights granted to a Partner
hereunder or under applicable law, other than the rights granted specifically to
Assignees pursuant to this Agreement and to have the other rights granted to
Assignees pursuant to the Pennsylvania Act; provided that, without relieving the
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transferring Partner or Assignee from any such limitations or obligations as
more fully described in Section 10.3, such Assignee shall be bound by any
limitations and obligations of a Partner or Assignee contained herein that a
Partner would be bound on account of the Assignee's Percentage Interest
(including the obligation (if any) to make Capital Contributions on account of
such Percentage Interest).
10.3 ASSIGNOR'S RIGHTS AND OBLIGATIONS. Any Partner who shall transfer any
Percentage Interests or other interest in the Partnership shall cease to be a
Partner with respect to such Percentage Interests or other interest and shall no
longer have any rights or privileges of a Partner with respect to such
Percentage Interests or other interest (it being understood, however, that the
applicable provisions of Section 6.1 shall continue to inure to such Person's
benefit), except that unless and until the Assignee is admitted as a substituted
Partner in accordance with the provisions of Article XI (the "Admission Date"),
--------------
(a) such assigning Partner shall retain all of the duties, liabilities and
obligations of a Partner with respect to such Percentage Interests or other
interest, including, without limitation, the obligation (together with its
Assignee pursuant to Section 10.2(b)) to make and return Capital Contributions
on account of such Percentage Interests or other interest pursuant to the terms
of this Agreement and (ii) the General Partner may, in its sole discretion,
reinstate all or any portion of the rights and privileges of such Partner with
respect to such Percentage Interests or other interest for any period of time
prior to the Admission Date. Nothing contained herein shall relieve any Partner
who transfers any Percentage Interests or other interest in the Partnership from
any liability of such Partner to the Partnership with respect to such Percentage
Interests or other interest that may exist on the Admission Date or that is
otherwise specified in the Pennsylvania Act and incorporated into this
Agreement.
10.4 PROHIBITED TRANSFERS. Notwithstanding anything contained herein to
the contrary, no Percentage Interest shall be transferred or assigned if such
transfer would result in the Partnership (i) being treated as a "publicly traded
partnership" within the meaning of Section 7704 of the Code, (ii) having more
than 100 partners, as determined for purposes of Treasury Regulation Section
1.7704-1(h), or (iii) having more than 100 beneficial owners for purposes of the
Investment Company Act of 1940, as amended. For purposes of the preceding
sentence, the General Partner
22
shall be permitted to rely on representations and other documentation furnished
by the transferor partner and the transferee in connection with the proposed
transfer.
ARTICLE XI
ADMISSION OF PARTNERS
11.1 SUBSTITUTED LIMITED PARTNERS. In connection with the transfer of a
Percentage Interest of a Limited Partner, a Person may request admission as a
Substituted Partner in a manner prescribed by the General Partner. Such Person
shall become a Substituted Partner on the date on which the General Partner
consents thereto and such admission is shown on the books and records of the
Partnership.
11.2 ADDITIONAL LIMITED PARTNERS. A Person may be admitted to the
Partnership as an Additional Partner only upon furnishing to the General Partner
(a) a letter of acceptance, in form satisfactory to the General Partner, of all
the terms and conditions of this Agreement, including the power of attorney
granted in Section 15.1, and (b) such other documents or instruments as may be
necessary or appropriate to effect his admission as a Limited Partner. Such
admission shall become effective on the date on which the General Partner
determines in its sole discretion that such conditions have been satisfied and
when any such admission is shown on the books and records of the Partnership.
11.3 ADMISSION OF A SUCCESSOR GENERAL PARTNER. A Person shall be admitted
as a Successor General Partner if and only if (a) the Person is the transferee
of all of the General Partner's General Percentage Interest or (b) the Person is
elected to be a Successor General Partner in the manner described in Section
12.3 or 13.2.
ARTICLE XII
WITHDRAWAL OR REMOVAL OF PARTNERS
12.1 WITHDRAWAL OF GENERAL PARTNER. The General Partner shall not withdraw
as the Partnership's general partner except as follows:
(a) The General Partner shall be deemed to have withdrawn as the
Partnership's general partner upon the effective date of the transfer of all of
its General Percentage Interest.
(b) The General Partner shall have no right to withdraw as the
Partnership's general partner without the consent of the Partners owning a
Majority in Interest. If permitted to withdraw as the Partnership's general
partner, the General Partner may withdraw by delivering a notice of withdrawal
to the Partners. Such notice shall state the effective date of the General
Partner's withdrawal, which date shall be not less than 90 days subsequent to
the date such notice
23
is mailed and shall set forth rules and procedures for the nomination and
election of a Successor General Partner pursuant to Section 12.3. Unless such
notice is earlier revoked, the General Partner shall be deemed to have withdrawn
as the Partnership's general partner upon the earlier of (i) the effective date
stated in such notice or (ii) the date a Successor General Partner is admitted
to the Partnership pursuant to Section 11.3.
(c) If the General Partner withdraws as the Partnership's general
partner in violation of this Section 12.1, the damages for which it may be held
liable under the Pennsylvania Act (or otherwise as a result of such withdrawal)
shall be limited to the forfeiture of its General Percentage Interest.
12.2 REMOVAL OF GENERAL PARTNER. The General Partner may be removed at any
time by the affirmative vote of Limited Partners owning a majority of Percentage
Interests held by all Limited Partners.
12.3 ELECTION OF SUCCESSOR GENERAL PARTNER. If the General Partner
withdraws from the Partnership pursuant to Section 12.1(b) or is removed
pursuant to Section 12.2, the Partners may elect a Successor General Partner as
the General Partner, by the affirmative vote of Limited Partners owning a
Majority in Interest (or such greater percentage as required by applicable law)
of the Percentage Interests owned by all Limited Partners. Any Person elected by
the Partners to be Successor General Partner shall be admitted to the
Partnership as Successor General Partner only upon the Partnership's receipt of
a written assumption by such Person of all of the General Partner's rights and
obligations hereunder (including the obligation to purchase the former General
Partner's Percentage Interest pursuant to Section 12.4). If a Successor General
Partner is admitted to the Partnership pursuant to this Section 12.3 on or
before the effective date specified in the General Partner's notice of
withdrawal pursuant to Section 12.1(b), such Successor General Partner shall
continue the Partnership's business according to this Agreement.
12.4 PURCHASE OF GENERAL PARTNER'S PERCENTAGE INTEREST. Within 30 days
following the admission of a Successor General Partner to the Partnership
pursuant to Section 12.3 or 13.2, the former General Partner may, at its option,
elect to sell its Percentage Interest to the Successor General Partner. Such
election shall be made by delivering to the Successor General Partner a written
notice reasonably indicating that the former General Partner is electing to sell
its Percentage Interest pursuant to this Section 12.4. If the former General
Partner properly makes such election, the Successor General Partner shall
purchase such interest from the former General Partner for a purchase price,
payable in cash, within 120 days after the effective date of the admission of
the Successor General Partner as General Partner, equal to the Fair Market Value
of the former General Partner's Interest as of the time of such General
Partner's withdrawal or removal. For purposes of determining the Fair Market
Value of the former General Partner's Interest, the Fair Market Value of the
Partnership's assets shall be determined according to Article XIV.
12.5 FORMER GENERAL PARTNER'S LIABILITIES. The General Partner shall not
be liable for Partnership debts and other liabilities and obligations of the
Partnership incurred after the effective
24
date of the General Partner's removal or withdrawal as General Partner, but
shall continue to be liable for Partnership debts and other liabilities and
obligations of the Partnership incurred before such effective date.
12.6 WITHDRAWAL OF LIMITED PARTNERS. No Limited Partner shall have any
right to withdraw from the Partnership without the prior written consent of the
General Partner. Upon a transfer of all of a Limited Partner's Percentage
Interests, such Limited Partner shall cease to be a Limited Partner; provided
--------
that the transferor shall not be released from liability to the Partnership for
----
(a) any materially false statement made, or caused to be made, by such
transferor in the Certificate of Limited Partnership or (b) any obligation of
such transferor to contribute cash or other property to the Partnership.
ARTICLE XIII
DISSOLUTION AND LIQUIDATION
13.1 DISSOLUTION. The Partnership shall not be dissolved by the admission
of Additional Partners or Substituted Partners, by the admission of a Successor
General Partner, or by the withdrawal or removal of the General Partner (if
there is a Successor General Partner), or by the death, incapacity, dissolution,
bankruptcy, insolvency or termination of a Limited Partner. The Partnership
shall dissolve, and its affairs shall be wound up, upon:
(a) the affirmative vote of the Partners owning a Majority in
Interest as provided in Section 9.1(a);
(b) the withdrawal or removal of the General Partner pursuant to
Section 12.1(b) or Section 12.2, respectively, if the Limited Partners have not
elected a Successor General Partner to continue the Partnership's business as
provided by Section 12.3;
(c) the insolvency or bankruptcy of the General Partner; or
(d) the occurrence of any event not specified in Section 13.1(b) or
(c) above that results in the General Partner ceasing to be the General Partner
under the Pennsylvania Act.
13.2 CONTINUATION AFTER DISSOLUTION. Within 90 days following a
dissolution of the Partnership pursuant to Section 13.1(c) or (d), pursuant to
rules and procedures established by the Liquidator pursuant to Section 13.3(b),
the Limited Partners may elect to reconstitute the Partnership and continue its
business according to this Agreement upon the admission to the Partnership of a
Successor General Partner elected by the affirmative vote of Limited Partners
owning a Majority in Interest (or such greater percentage as required by
applicable law). Any Person elected by the Limited Partners to be a Successor
General Partner shall be admitted to the Partnership as Successor General
Partner only upon the Partnership's receipt of a written assumption by such
Person of all of
25
the former General Partner's rights and obligations hereunder (including the
obligation to purchase the General Partner's Percentage Interest pursuant to
Section 12.4). Unless a Successor General Partner is admitted to the Partnership
within 90 days after dissolution, the Partnership shall be liquidated pursuant
to Section 13.3. If a Successor General Partner is admitted to the Partnership
pursuant to this Section 13.2 within 90 days after dissolution, then:
(a) the reconstituted partnership shall continue until dissolved
according to this Article XIII; and
(b) all necessary steps shall be taken to cancel this Agreement and
the Certificate of Limited Partnership and to enter into a new partnership
agreement and certificate of limited partnership, and the Successor General
Partner may for this purpose exercise the powers of attorney granted the General
Partner pursuant to Section 15.1; provided that the right of the Limited
Partners set forth above to elect a Successor General Partner and to
reconstitute and to continue the business of the Partnership shall not exist and
may not be exercised unless the Partnership has received an opinion of counsel
that (i) the exercise of the right would not result in the loss of limited
liability of any Person who is a Limited Partner and (ii) neither the
Partnership nor the reconstituted partnership would be classified as other than
a partnership for United States federal income tax purposes upon the exercise of
such right to continue.
13.3 LIQUIDATION.
(a) Upon dissolution of the Partnership, the General Partner shall be
the liquidator (the "Liquidator"), unless and until a successor Liquidator is
----------
appointed as provided herein. The Liquidator shall agree not to resign at any
time without 30 days' prior written notice. The Liquidator, if other than the
General Partner, may be removed at any time, with or without cause, by notice of
removal and appointment of a successor Liquidator approved by the holders of a
Majority in Interest. Within 30 days following the occurrence of any Event of
Withdrawal with respect to the Liquidator, a successor Liquidator may be elected
by the holders of a Majority in Interest. The successor Liquidator shall succeed
to all rights, powers and duties of the former Liquidator. The right to appoint
a successor or substitute Liquidator in the manner provided herein shall be
recurring and continuing for so long as the functions and services of the
Liquidator are authorized to continue under the provisions hereof, and every
reference herein to the Liquidator shall be deemed to refer also to any such
successor or substitute Liquidator appointed in the manner herein provided.
Except as expressly provided in this Article XIII, the Liquidator appointed in
the manner provided herein shall have and may exercise, without further
authorization or consent of any of the parties hereto, all of the powers
conferred upon the General Partner under the terms of this Agreement (but
subject to all of the applicable limitations, contractual and otherwise, upon
the exercise of such powers to the extent necessary or desirable in the good
faith judgment of the Liquidator to carry out the duties and functions of the
Liquidator hereunder for and during such period of time as shall be reasonably
required in the good faith judgment of the Liquidator to complete the winding up
and liquidation of the Partnership as provided for herein). The Liquidator shall
receive as compensation for its services (i) if the Liquidator is the General
Partner, the compensation and reimbursements specified in Section 5.5, or (ii)
if the Liquidator is not the General
26
Partner, a reasonable fee plus out-of-pocket costs or such other compensation as
the holders of a Majority in Interest may approve.
(b) If the Partnership is dissolved pursuant to Section 13.1(c),
the Liquidator shall establish reasonable rules and procedures for the
nomination and election of a Successor General Partner pursuant to Section 13.2.
Pending such election, the Liquidator shall continue to operate the
Partnership's business in the ordinary course with a view to conserving the
Partnership's assets. If no Successor General Partner is admitted to the
Partnership pursuant to Section 13.2 within the time period specified therein,
the Liquidator shall proceed with the liquidation of the Partnership's assets as
provided in Section 13.3(c).
(c) The Liquidator shall liquidate the assets of the Partnership
and apply and distribute the proceeds of such liquidation in the following order
of priority, unless otherwise required by mandatory provisions of applicable
law:
(i) First, to the payment of the Partnership's debts and
obligations to its creditors, including sales commissions
and other expenses incident to any sale of the assets of the
Partnership.
(ii) Second, to the establishment of and additions to such
reserves as the Liquidator may deem necessary or
appropriate.
(iii) Third, to the Partners, in accordance with Section 4.1 and
the balances set forth in the Capital Accounts of the
Partners at such time.
The reserves established pursuant to subparagraph (ii) shall be paid over by the
Liquidator to a bank or other financial institution to be held in escrow for the
purpose of paying any such contingent or unforeseen liabilities or obligations
and, at the expiration of such period as the Liquidator deems advisable, such
reserves shall be distributed in the priorities set forth in this Section
13.3(c). The parties intend that the Distributions under this Section 13.3(c) be
in compliance with the provisions of Treasury Regulation Section 1.704-
1(b)(2)(ii)(b)(2), and this Section 13.3(c) shall always be interpreted in a
manner consistent with such provisions.
13.4 DISTRIBUTION IN KIND. Notwithstanding the provisions of Section 13.3
which require the liquidation of the assets of the Partnership, but subject to
the order of priorities set forth therein, if upon dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole discretion, defer for a reasonable
time the liquidation of any assets except those necessary to satisfy Partnership
liabilities (other than loans to the Partnership by Partners) and reserves, and
may, in its sole discretion, distribute to the Partners, in lieu of cash, as
tenants in common and in accordance with the provisions of Section 13.3(c),
undivided interests in such Partnership assets as the Liquidator deems not
suitable for liquidation. Any such Distributions in kind shall be subject to
such conditions relating to the disposition and management of such properties as
the Liquidator deems reasonable and equitable and to any agreements governing
the
27
operating of such properties at such time. Any Partnership assets distributed in
kind shall first be written up or down to their Fair Market Value, thus creating
Profit or Loss (if any), which shall be allocated in accordance with Section
4.2. The Liquidator shall determine the Fair Market Value of any property
distributed in accordance with the valuation procedures set forth in Article
XIV.
13.5 DEFICIT MAKEUP. No Partner shall have any obligation to make up any
deficit balance in its respective Capital Account, except as otherwise required
under the Pennsylvania Act.
13.6 CANCELLATION OF CERTIFICATE OF LIMITED PARTNERSHIP. Upon the
completion of the distribution of Partnership property as provided in Sections
13.3 and 13.4, the Partnership shall be terminated, and the Liquidator (or the
Limited Partners, if necessary) shall cause the cancellation of the Certificate
of Limited Partnership and all qualifications of the Partnership as a foreign
limited partnership in jurisdictions other than the Commonwealth of Pennsylvania
and shall take such other actions as may be necessary to terminate the
Partnership. The Partnership shall be deemed to continue in existence for all
purposes of this Agreement until it is terminated pursuant to this Section 13.6.
13.7 REASONABLE TIME FOR WINDING UP. A reasonable time shall be allowed
for the orderly winding up of the business and affairs of the Partnership and
the liquidation of its assets pursuant to Section 13.3 in order to minimize any
losses otherwise attendant upon such winding up.
13.8 RETURN OF CAPITAL. The Liquidator, as such, shall not be personally
liable for the return of Capital Contributions or any portion thereof (it being
understood that any such return shall be made solely from Partnership assets).
ARTICLE XIV
VALUATION
14.1 DETERMINATION. The Fair Market Value of the assets of the
Partnership or of a Percentage Interest in the Partnership will be determined by
the General Partner (or, if pursuant to Section 13.3, the Liquidator) in its
good faith judgement in such manner as its deems reasonable and using all
factors, information and data deemed to be pertinent.
14.2 DETERMINATION OF FAIR MARKET VALUE. "Fair Market Value" of (i)
-----------------
a specific Partnership asset will mean the amount which the Partnership would
receive in an all-cash sale of such asset in an arms-length transaction with an
unaffiliated third party consummated on the day immediately preceding the date
on which the event occurred which necessitated the determination of the Fair
Market Value (and after giving effect to any transfer taxes payable in
connection with such sale); and (ii) of the Partnership will mean the amount
which the Partnership would receive in an all-cash sale of all of its assets and
businesses as a going concern in an arms-length transaction with an unaffiliated
third party consummated on the day immediately preceding the date on which the
event occurred which necessitated the determination of the Fair Market Value.
After a
28
determination of the Fair Market Value of the Partnership is made as provided
above, the Fair Market Value of a Percentage Interest will be determined by
making a calculation reflecting the cash distributions which would be made to
the Partners and Assignees in accordance with this Agreement if the Partnership
were deemed to have received such Fair Market Value in cash and then distributed
the same to the Partners and Assignees in accordance with the terms of this
Agreement incident to the liquidation of the Partnership after payment to all of
the Partnership's creditors from such cash receipts and assuming that all of the
convertible debt and other convertible securities were repaid or converted
(whichever yields more cash to the holders of such convertible securities).
Except as otherwise provided herein or in any agreement, document or instrument
contemplated hereby, any amount to be paid under this Agreement by reference to
the Fair Market Value shall be paid in full in cash, and any Percentage Interest
being transferred in exchange therefor will be transferred free and clear of all
Liens.
ARTICLE XV
GENERAL PROVISIONS
15.1 POWER OF ATTORNEY.
(a) Each Partner or Assignee hereby constitutes and appoints the
General Partner and the liquidators, with full power of substitution, as his or
its true and lawful agent and attorney-in-fact, with full power and authority in
his or its name, place and stead, to: (i) execute, swear to, acknowledge,
deliver, file and record in the appropriate public offices (A) this Agreement,
all certificates and other instruments and all amendments thereof which the
General Partner deems appropriate or necessary to form, qualify, or continue the
qualification of, the Partnership as a limited partnership in the Commonwealth
of Pennsylvania and in all other jurisdictions in which the Partnership may
conduct business or own property; (B) all instruments which the General Partner
deems appropriate or necessary to reflect any amendment, change, modification or
restatement of this Agreement in accordance with its terms; (C) all conveyances
and other instruments or documents which the General Partner deems appropriate
or necessary to reflect the dissolution and liquidation of the Partnership
pursuant to the terms of this Agreement, including a certificate of
cancellation; and (D) all instruments relating to the admission, withdrawal or
substitution of any Partner or Assignee pursuant to Article X or XI; and (ii)
sign, execute, swear to and acknowledge all ballots, consents, approvals,
waivers, certificates and other instruments appropriate or necessary, in the
reasonable judgment of the General Partner, to evidence, confirm or ratify any
vote, consent, approval, agreement or other action which is made or given by the
Partners hereunder or is consistent with the terms of this Agreement and/or
appropriate or necessary (and not inconsistent with the terms of this
Agreement), in the reasonable judgment of the General Partner, to effectuate the
terms of this Agreement.
(b) The foregoing power of attorney is irrevocable and coupled with
an interest, and shall survive the death, disability, incapacity, dissolution,
bankruptcy, insolvency or termination
29
of any Partner or Assignee and the transfer of all or any portion of his or its
Percentage Interest and shall extend to such Partner or Assignee's heirs,
successors, assigns and personal representatives.
15.2 TITLE TO PARTNERSHIP ASSETS. Partnership assets shall be deemed
to be owned by the Partnership as an entity, and no Partner, individually or
collectively, shall have any ownership interest in such Partnership assets or
any portion thereof. Legal title to any or all Partnership assets may be held
in the name of the Partnership, the General Partner or one or more nominees, as
the General Partner may determine. The General Partner hereby declares and
warrants that any Partnership assets for which legal title is held in its name
or the name of any nominee shall be held in trust by the General Partner or such
nominee for the use and benefit of the Partnership in accordance with the
provisions of this Agreement. All Partnership assets shall be recorded as the
property of the Partnership on its books and records, irrespective of the name
in which legal title to such Partnership assets is held.
15.3 ADDRESSES AND NOTICES. Any notice, demand, request or report
required or permitted to be given or made to any Person under this Agreement
shall be in writing and shall be deemed given or made when delivered in person
or when sent by first class mail or by other commercially reasonable means of
written communication to the Person at his address as shown on the Partnership's
books and records. An affidavit or certificate of mailing executed by the
General Partner shall be conclusive (but not exclusive) evidence of the date and
fact of mailing of any such notice, demand, request or report. Any notice to
the General Partner or the Partnership shall be deemed given if received by the
General Partner at the principal office of the Partnership designated pursuant
to Section 2.5.
15.4 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their heirs, executors, administrators,
successors, legal representatives and permitted assigns.
15.5 CREDITORS. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the Partnership or any of
its Affiliates, and no creditor who makes a loan to the Partnership or any of
its Affiliates may have or acquire (except pursuant to the terms of a separate
agreement executed by the Partnership in favor of such creditor) at any time as
a result of making the loan any direct or indirect interest in Partnership
Profits, Losses, Distributions, capital or property other than as a creditor.
15.6 WAIVER. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant, duty, agreement or
condition.
15.7 COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which will be an original and all of which together shall
constitute one and the same agreement binding on all the parties hereto.
30
15.8 APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Pennsylvania,
without giving effect to any choice of law or conflict of law rules or
provisions (whether of the Commonwealth of Pennsylvania or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the Commonwealth of Pennsylvania.
15.9 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
15.10 FURTHER ACTION. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking such actions
as may be necessary or appropriate to achieve the purposes of this Agreement.
15.11 EXPENSES. The Partnership shall pay, and hold the Partners and
their respective Affiliates harmless against liability for the payment of (i)
their out-of-pocket fees and expenses incurred in connection with this Agreement
and the transactions related hereto and contemplated hereby (including legal
expenses relating to this Agreement and the documents related hereto); (ii) the
reasonable fees and expenses incurred in connection with an investment or
acquisition by the Partnership or any of its Subsidiaries; (iii) the fees and
expenses incurred with respect to any amendments or waivers (whether or not the
same become effective) under or in respect of any of this Agreement or the
agreements referred to herein or contemplated hereby or thereby (including,
without limitation, in connection with any proposed merger, sale or
recapitalization of the Partnership or any of its Subsidiaries); (iv) stamp and
other taxes which may be payable in respect of the execution and delivery of
this Agreement or the issuance, delivery or acquisition of any Percentage
Interests; (v) the fees and expenses incurred with respect to the enforcement of
the rights granted under any provision of this Agreement, the Percentage
Interests, and the other agreements referred to herein or contemplated hereby or
thereby; and (vi) the reasonable fees and expenses incurred by each such Person
in any filing with any Governmental Entity with respect to its investment in the
Partnership which mentions such Person.
15.12 OFFSET. Whenever the Partnership is to pay any sum to any
Partner or Assignee or any Affiliate or related person thereof, any amounts that
such Partner or Assignee or such Affiliate or related person owes to the
Partnership may be deducted from that sum before payment.
15.13 ENTIRE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements
31
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
15.14 REMEDIES. Each Partner and Assignee shall have all rights and
remedies set forth in this Agreement and all rights and remedies which such
Person has been granted at any time under any other agreement or contract and
all of the rights which such Person has under any law. Any Person having any
rights under any provision of this Agreement or any other agreements
contemplated hereby shall be entitled to enforce such rights specifically
(without posting a bond or other security), to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law.
15.15 DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. Whenever required by the context, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation. Reference
to any agreement, document or instrument means such agreement, document or
instrument as amended or otherwise modified from time to time in accordance with
the terms thereof, and if applicable hereof. Without limiting the generality of
the immediately preceding sentence, no amendment or other modification to any
agreement, document or instrument that requires the consent of any Person
pursuant to the terms of this Agreement or any other agreement will be given
effect hereunder unless such Person has consented in writing to such amendment
or modification. Wherever required by the context, references to a Fiscal Year
shall refer to a portion thereof. The use of the words "or," "either" and "any"
shall not be exclusive. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement. Wherever a conflict exists between
this Agreement and any other agreement, this Agreement shall control but solely
to the extent of such conflict.
* * * * *
32
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Amended and Restated Limited Partnership
Agreement as of the date first written above.
GENERAL PARTNER
---------------
ACR MANAGEMENT, L.L.C.
By: _____________________________________
Its:_____________________________________
LIMITED PARTNER
---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL HOLDINGS, L.P.
By: ACR Management, L.L.C.
Its: General Partner
By: _____________________________________
Its: ____________________________________
SCHEDULE I
----------
Capital
Name and Address Contributions Percentage Interest
----------------------------------- ----------------- ------------------------
GENERAL PARTNER:
ACR Management, L.L.C. $885,240 1%
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
LIMITED PARTNERS:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rental Holdings, L.P. $87,658,560 99%
Two ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------- ------------------------
$88,543,800 100%
=============== ========================
SCHEDULE II
-----------
Name and Address
----------------
GENERAL PARTNER:
ACR Management, L.L.C. $885,240
Two ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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LIMITED PARTNERS:
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Holdings, L.P.
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