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Exhibit 10.18
LIMITED PARTNERSHIP AGREEMENT
of
DM Associates Limited Partnership
March 12, 1992
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TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS AND PARTIED.................................................................................1
Section 1.1 - Definitions................................................................................1
ARTICLE II FORMATION..............................................................................................6
Section 2.1 - Formation..................................................................................6
Section 2.2 - Name.......................................................................................6
Section 2.3 - Office and Agent for Service...............................................................6
Section 2.4 - Documents to be Filed......................................................................6
ARTICLE III PURPOSES AND POWERS...................................................................................6
Section 3.1 - Purposes and Powers........................................................................6
ARTICLE IV TERM...................................................................................................7
Section 4.1 - Term.......................................................................................7
ARTICLE V PARTNERSHIP CAPITAL.....................................................................................7
Section 5.1 - Capital Contributions......................................................................7
Section 5.2 - Additional Limited Partners................................................................7
Section 5.3 - Capital Accounts...........................................................................8
Section 5.4 - Non-Assessability..........................................................................8
Section 5.5 - Limitation of Liability of Limited Partners................................................8
Section 5.6 - Withdrawal; Interest.......................................................................9
ARTICLE VI DISTRIBUTIONS OF CASH AND ALLOCATION OF INCOME.........................................................9
Section 6.1 - General....................................................................................9
Section 6.2 - Distributions of Cash Flow.................................................................9
Section 6.3 - Distributions of Cash from Interim Capital Transactions....................................9
Section 6.4 - Distributions on Liquidation..............................................................10
Section 6.5 - Allocations of Net Profits and Net Loss...................................................11
Section 6.6 - Allocation of Gain and Loss from Capital Transactions
(other than upon a liquidation)...........................................................11
Section 6.7 - Allocation of Net Profits and Net Loss from Capital
Transactions Upon a Liquidation of the Partnership........................................11
Section 6.8 - Minimum Gain Chargeback; Qualified Income Offset..........................................12
Section 6.9 - Monthly Segments; Allocations Among Partners..............................................13
Section 6.10 - No Negative Restoration..................................................................13
Section 6.11 - Accounting...............................................................................13
Section 6.12 - Book-up Provisions.......................................................................14
Section 6.13 - Section 704(c) Allocations...............................................................14
Section 6.14 - Special 35% Profits Limitation...........................................................14
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ARTICLE VII TAX MATTERS PARTNER..................................................................................14
Section 7.1 - Tax Matters Partner.......................................................................14
ARTICLE VIII RIGHTS, OBLIGATIONS AND REPRESENTATIONS OF THE GENERAL PARTNER......................................15
Section 8.1 - Power and Authority of the General Partner................................................15
Section 8.2 - Actions Requiring a Super Majority........................................................15
Section 8.3 - Notification of Approval Required.........................................................15
Section 8.4 - Reimbursement.............................................................................15
Section 8.5 - Representations by General Partner........................................................16
Section 8.6 - Other Activities..........................................................................16
Section 8.7 - Periodic Reporting........................................................................16
ARTICLE IX OTHER PARTNER PROVISIONS..............................................................................16
Section 9.1 - Actions of the General Partner............................................................16
Section 9.2 - Third Party Reliance on Authority of the General Partner..................................17
ARTICLE X RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS.............................................................18
Section 10.1 - Authority of Limited Partners............................................................18
Section 10.2 - Rights of Limited Partners...............................................................18
Section 10.3 - Assignment by Partners...................................................................18
Section 10.4 - Right of First Refusal...................................................................19
Section 10.5 - Right to Gift Interest...................................................................19
ARTICLE XI SPECIAL TRANSFER PROVISIONS...........................................................................19
Section 11.1 - Transfer of Limited Partnership Interest.................................................19
ARTICLE XII POWER OF ATTORNEY....................................................................................20
Section 12.1 - Power of Attorney........................................................................20
Section 12.2 - Assignment...............................................................................21
Section 12.3 - Admission of Limited Partner.............................................................21
Section 12.4 - Irrevocable..............................................................................21
Section 12.5 - Amendments by General Partner............................................................21
ARTICLE XIII INDEMNIFICATION.....................................................................................21
Section 13.1 - Indemnification of General Partner.......................................................21
Section 13.2 - Indemnification of Partnership...........................................................21
ARTICLE XIV RESTRICTION AGAINST TRANSFERS BY GENERAL PARTNER; REMOVAL OF GENERAL PARTNER.........................22
Section 14.1 - Removal of General Partner...............................................................22
Section 14.2 - Effect of Removal........................................................................22
Section 14.3 - Successor................................................................................22
Section 14.4 - Transfer of General Partner's Interest...................................................22
ARTICLE XV DISSOLUTION AND TERMINATION...........................................................................22
Section 15.1 - Events of Dissolution....................................................................22
Section 15.2 - Priority of Distribution.................................................................23
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Section 15.3 - Period of Dissolution....................................................................24
Section 15.4 - Statement................................................................................24
Section 15.5 - Liability for Capital Contributions......................................................24
Section 15.6 - Distribution of Assets...................................................................24
ARTICLE XVI CONCLUDING PROVISIONS................................................................................25
Section 16.1 - Entire Agreement.........................................................................25
Section 16.2 - Amendments...............................................................................25
Section 16.3 - Successors...............................................................................25
Section 16.4 - Captions.................................................................................25
Section 16.5 - Notice...................................................................................25
Section 16.6 - Arbitration..............................................................................25
Section 16.7 - Counterparts.............................................................................26
Section 16.8 - Partial Invalidity.......................................................................26
Section 16.9 - Counsel..................................................................................26
Section 16.10 - Applicable Law..........................................................................26
Section 16.11 - Exhibits................................................................................26
Section 16.12 - Genders.................................................................................26
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LIMITED PARTNERSHIP AGREEMENT OF
DM ASSOCIATES LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement"), dated as of
March 12 , 1992 by and among DM MANAGEMENT ASSOCIATES, a Connecticut general
partnership (the "General Partner"), and the undersigned persons and entities
whose names are listed on Exhibit A hereto as Limited Partners (individually a
"Limited Partner" and collectively, the "Limited Partners"). The General Partner
and the Limited Partners are referred to individually as a "Partner" and
collectively as the "Partners."
WITNESSETH:
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WHEREAS the parties hereto desire to enter into this agreement pursuant
to the laws of the State of Connecticut for the purpose of creating a limited
partnership to acquire, hold and ultimately dispose of approximately 34% of the
outstanding stock of DMCS, which stock represents approximately 60% of the
voting power of DMCS (the "DMCS Shares").
NOW, THEREFORE, it is hereby agreed as follows:
ARTICLE I
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Definitions and Partied
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SECTION 1.1 - DEFINITIONS. The words, phrases and parties defined in
this Article shall have the meanings indicated. Whenever the words, phrases and
parties defined in this Article, or elsewhere in this Agreement, are intended to
have their defined meanings, the first letter of the word or the first letters
of all substantive words in the phrase shall be capitalized. Otherwise, any
word, phrase or party name that appears in this Agreement shall have the meaning
denoted by its contest.
ACT shall mean the Connecticut Uniform Limited Partnership Act as the
same may be, from time to time, amended.
AFFILIATE of a Person (the "Primary Person") means (a) any Person
which, directly or indirectly, is in control of, is controlled by , or is under
common control with, the Primary Person or (b) any Person who is the director or
officer (i) of the Primary Person, (ii) of any Subsidiary of the Primary Person,
or (iii) of any Person described in clause (a) above. For purposes of this
definition, control of a Person shall mean the power, directly or indirectly,
(i) to vote 10% or more of the securities having ordinary voting power for the
election of directors of such Person or (ii) to direct or cause the direction of
the management and policies of such Person whether by contract or otherwise.
AGREEMENT shall mean this document, which is the Limited Partnership
Agreement of the DM Associates Limited Partnership.
BALANCE OF THE CLASS A LIMITED PARTNER'S 9% PREFERRED RETURN shall mean
an amount equal to the excess of (i) a return at the rate of nine percent (9%)
per annum, compounded annually, on the average daily balance (determined for
each fiscal year of the Partnership, or portion thereof) of the Unrecovered
Capital of the Class A Limited Partner for the period from
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the date hereof through the date of determination, which amount shall be reduced
to reflect the timing and amount of any prior distributions of the Balance of
the Class A Limited Partner's 9% Preferred Return pursuant to Section 6.3(d),
less (ii) an amount equal to a return at the rate of six percent (6%) per annum,
compounded annually, on the average daily balance (determined for each fiscal
year of the Partnership, or portion thereof) of the Unrecovered Capital of the
Class A Limited Partner for the period from the date hereof through the date of
determination.
BALANCE OF THE LIMITED PARTNERS' 15% PREFERRED RETURN shall mean an
amount equal to the excess of (i) a return at the rate of fifteen percent (15%)
per annum, compounded annually, on the average daily balance (determined for
each fiscal year of the Partnership or portion thereof) of the Unrecovered
Capital of the applicable Limited Partner for the period from the date hereof
through the date of determination, which amount shall be reduced to reflect the
timing and amount of any prior distributions to the applicable Limited Partner
of the Balance of the Limited Partners' 15% Preferred Return pursuant to Section
6.3(g); less (ii) an amount equal to a return at the rate of nine percent (9%)
per annum, compounded annually, on the average daily balance (determined for
each fiscal year of the Partnership, or portion thereof) of the Unrecovered
Capital of the applicable Limited Partner for the period from the date hereof
through the date of determination.
BALANCE OF THE SPECIAL 15% PRIORITY shall mean an amount equal to a
return at the rate of fifteen percent (15%) per annum, compounded annually, on
the principal amount outstanding from time to time on the CDA Loan for the
period from the date hereof through the date of determination, less an amount
equal to a return at the rate of nine percent (9%) per annum, compounded
quarterly, on the principal amount outstanding from time to time on the CDA Loan
for the same period, which amount shall be reduced to reflect the timing and
amount of any prior distributions of the Balance of the Special 15% Priority
pursuant to Section 6.3(h).
CAPITAL CONTRIBUTIONS shall mean, with respect to any Partner, the
amount of money and the fair market value of any property (including DMCS
Shares) contributed to the Partnership pursuant to the terms of this Agreement.
CAPITAL TRANSACTION shall mean a sale, financing, refinancing, or
termination and liquidation of the Partnership, or any other disposition of the
Partnership Property, or any part of, or interest in, the Partnership Property,
which, in accordance with generally accepted accounting principles, is
attributable to capital.
CASH FLOW shall mean with respect to any period, the amount, (if any)
by which the cash received from all sources other than:
(a) Capital Contributions (except the amount of any reserve
originating from a Capital Contribution which is used to pay an Operating Cost);
and
(b) Capital Transactions, exceeds the operating costs with respect
to such period.
CASH FROM CAPITAL TRANSACTIONS shall mean with respect to any period,
the amount (if any) by which the cash received from Capital Transactions exceeds
the costs and expenses attributable to such Capital Transactions.
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CDA shall mean the Connecticut Development Authority.
CDA LOAN shall mean a nonrecourse loan in the amount of $7,100,000 from
CDA, or any successor creditor thereto, due July 31, 1997.
CDA LOAN AGREEMENT shall mean the Loan Agreement and Stock Pledge
Agreement between the Partnership and the CDA and the Irrevocable Special Proxy
granted by the Partnership to the CDR, all dated as of February ___, 1992.
CLASS A LIMITED PARTNERS shall mean those partners designated on
Exhibit A hereto as being Class A Limited Partners.
CLASS B LIMITED PARTNERS shall mean those partners designated on
Exhibit A hereto as being Class B Limited Partners.
CLOSING DATE shall mean the date the Partnership acquired the DMCS
Shares, which was __________________, 1992.
DMCS shall mean Dairy Mart Convenience Stores, Inc., a Delaware
corporation.
DMCS SHARES shall mean shares of Class H Common Stock, Par value $.01
per share of Dairy Mart Convenience Stores, Inc.
15% PREFERRED RETURN shall mean, with respect to the General Partner,
an amount equal to a return at the rate of fifteen percent (15%) per annum,
compounded annually, on the average daily balance (determined for each fiscal
year of the Partnership or portion thereof) of the Unrecovered Capital of the
General Partner for the period from the date hereof through the date of
determination, which amount shall be reduced to reflect the timing and amount of
any prior distributions of the 15% Preferred Return pursuant to Section 6.3(i).
GENERAL PARTNER shall mean DM MANAGEMENT ASSOCIATES, a Connecticut
general partnership.
GROSS ASSET VALUE means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except that the Gross Asset
Values of all Partnership assets shall be adjusted to equal their respective
gross fair market value, as determined by the General Partner, as of the
following times:
(a) the acquisition of an additional interest in the Partnership
by any new or existing Partner in exchange for more than a DE MINIMIS Capital
Contribution;
(b) the distribution by the Partnership to Partner of more than a
DE MINIMIS amount of Partnership property as consideration for an interest in
the Partnership if the General Partner reasonably determines that such
adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
(c) the liquidation of the Partnership within the meaning of
Regulations Section 1.7041(b)(2)(ii)(g);
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(d) the Gross Asset Value of any Partnership asset distributed to
any Partner shall be the gross fair market value of such asset on the date of
distribution; and
(e) the Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to I.R.C. Section 734(b) or I.R.C. Section 743(b), but only
to the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Regulation Section 1.704-1(b)(2)(iv)(m); provided,
however, that Gross Asset Values shall not be adjusted pursuant to this
subsection to the extent the Partners determine that an adjustment pursuant to
subparagraph (b) is necessary or appropriate in connection with a transaction
that would otherwise result in an adjustment pursuant to this subsection.
INDIVIDUAL CLASS B LIMITED PARTNER shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
INTERIM CAPITAL TRANSACTION shall mean any financing, refinancing or
sale of a portion of the assets of the Partnership and any similar items which,
in accordance with generally accepted accounting practices, are attributable to
capital but which do not result in the dissolution of the Partnership.
LIMITED PARTNERS shall mean the Class A Limited Partner or Partners and
the Class B Limited Partners, all of which persons and entities are listed as
Limited Partners in Exhibit A attached hereto.
MAJORITY shall mean Partners owning more than fifty percent (50%) of
the Percentage Interests in the Partnership.
NET PROFITS and NET LOSSES means, for each fiscal year or other period,
an amount equal to the Partnership's taxable income or loss for such year or
period, determined in accordance with I.R.C. Section 703(a) (for this purpose,
all items of income, gain, loss or deduction required to be stated separately
pursuant to I.R.C. Section 703(a)(1) shall be included in taxable income or
loss), with the following adjustments:
(a) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Net Profits or Net
Losses pursuant to this Section shall be added to such taxable income or loss;
(b) Any expenditures of the Partnership described in I.R.C.
Section 705(a)(2)(H) or treated as I.R.C. Section 705(A)(2)(B) expenditures
pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken
into account in computing Net Profits or Net Losses pursuant to this Section
shall be subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to the provisions of this Agreement, the amount of such
adjustment shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Net Profits or Net Losses; and
(d) Gain or loss resulting from any disposition of Partnership
property with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by
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reference to the Gross Asset Value of the property dispersed of, notwithstanding
that the adjusted tax basis of such property differs from its Gross Asset Value.
9% PREFERRED RETURN shall mean, with respect to each Class H Limited
Partner, an amount equal to a return at the rate of nine percent (9%) per annum,
compounded annually, on the average daily balance (determined for each fiscal
year of the Partnership or portion thereof) of the Unrecovered Capital of such
Class H Limited Partner for the period from the date hereof through the date of
determination, which amount shall be reduced to reflect the timing and amount of
any prior distributions of the 9% Preferred Return pursuant to Sections 6.3(e).
PARTNERS shall mean the General Partner and the Limited Partners.
PARTNERSHIP shall mean DM Associates Limited Partnership.
PARTNERSHIP PROPERTY shall mean all assets held by the Partnership,
including the DMCS Shares, subject to liabilities of the Partnership.
PERCENTAGE INTEREST shall mean each Partner's interest in the
Partnership. Each Partner's initial Percentage Interest in the Partnership shall
be as set forth on Exhibit A.
PERSON shall mean an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
REPRESENTATIONS AGREEMENT shall mean the Representations Agreement
among HNB Investment Corp., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇.
6% PREFERRED RETURN shall mean, with respect to the Class A Limited
Partner, an amount equal to a return at the rate of six percent (6%) per annum
compounded annually, on the average daily balance (determined for each fiscal
year of the Partnership or portion thereof) of the Unrecovered Capital of the
Class A Limited Partner for the period from the date hereof through the date of
determination, which amount shall be reduced to reflect the timing and amount of
any prior distributions of the 6% Preferred Return pursuant to Section 6.3(b).
SUBSIDIARY shall mean as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries, or both,
by such Person.
SUPER MAJORITY shall mean Limited Partners owning sixty percent (60%)
or more of the Percentage Interests of the Partnership.
UNRECOVERED CAPITAL shall mean at any time the excess of all amounts
contributed to the Partnership by a Partner over, with respect to the General
Partner, all amounts previously distributed to the General Partner pursuant to
Section 6.3(f), with respect to the Class A Limited
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Partner, all amounts previously distributed to the Class A Limited Partner under
Section 6.3(a) and with respect to the Class H Limited Partner all amounts
previously distributed to the Class H Limited Partner under Section 6.3(c).
ARTICLE II
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Formation
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SECTION 2.1 - FORMATION. The General Partner and the Limited Partners
hereby agree to form a limited partnership pursuant to the Act. The Partnership
shall commence on the date of recordation of a Certificate of Limited
Partnership with the Secretary of State of the State of Connecticut.
SECTION 2.2 - NAME. The Partnership shall be conducted under the name
of DM Associates Limited Partnership.
SECTION 2.3 - OFFICE AND AGENT FOR SERVICE. The principal office of the
Partnership shall be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, or such other place or places as the General Partner may, from
time to time, designate after notice to all the Limited Partners. The agent for
service of process shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, or such successor as may, from time
to time, be designated by the General Partner.
SECTION 2.4 - DOCUMENTS TO BE FILED. The Partners, or the General
Partner as attorney-in-fact for one or more of the Partners, shall sign and file
as required:
(a) A Certificate of Limited Partnership, meeting the requirements
of the Act, filed in accordance with this Agreement and such further amendments
to the Certificate as may be required or permitted by this Agreement, all of
which shall be filed 'for record in the office of the Connecticut Secretary of
State. The General Partner shall not be required to deliver or mail a copy of
any such Amended 'and Restated Certificate of Limited Partner-ship to any
Limited Partner; and
(b) All other certificates required to be filed in Connecticut or
in any other state or by the federal government.
ARTICLE III
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Purposes and Powers
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SECTION 3.1 - PURPOSES AND POWERS. The purpose of the Partnership is to
acquire the DMCS Shares and to hold, manage, sell, and ultimately dispose of the
DMCS Shares and to make any other investments agreed to by a Super Majority of
the Partners. The Partnership is authorized to enter into all contracts,
agreements, mortgages, leases, notes and other documents and perform all acts
contemplated by this Agreement in furtherance of, or incidental to, such
purpose.
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ARTICLE IV
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Term
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SECTION 4.1 - TERM. The Term of the Partnership commenced on January
31, 1992, the date the Partnership was formed, and shall continue until the
earlier of five years and six months after the Closing Date ("Term") or
December 31, 1997, provided, however, that the Partnership shall be sooner
dissolved, and the Term thereby shortened, upon the happening of any of the
events set forth in Article XV of this Agreement.
ARTICLE V
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Partnership Capital
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SECTION 5.1 - CAPITAL CONTRIBUTIONS. The capital of the Partnership
shall be contributed and adjusted as follows:
(a) The General Partner has contributed or will contribute on the
Closing Date, the amount of cash capital set forth on Exhibit A in exchange for
the Percentage Interest in the Partnership also set forth on Exhibit A.
(b) Each Limited Partner has contributed to the Partnership, or
will contribute on the Closing Date, the amount of capital, as set forth on
Exhibit A, and shall receive a Percentage Interest in the Partnership, also as
set forth on Exhibit A. Such capital shall be contributed in cash or, with
respect to contributions to the Partnership on or prior to the Closing Date by
the Class H Limited Partners, in shares of stock of the DMCS, valued for such
purposes, at $12 per share.
SECTION 5.2 - ADDITIONAL LIMITED PARTNERS. Except as expressly provided
herein, the General Partner is not authorized to admit additional Partners to
the Partnership or sell additional Partnership interests without a Super
Majority vote of Limited Partners. Notwithstanding the foregoing, the General
Partner shall be permitted at any time on or prior to six months after the
Closing Date to admit up to five (5) additional Class H Limited Partners to the
Partnership so long as (i) such additional Limited Partners are employees of
DMCS at the time they are admitted to the Partnership, (ii) the interest in the
Partnership received by such employees is acquired directly from the Individual
Class B Limited Partner at a price to be mutually determined between the General
Partner and the Individual Class H Limited Partner, (iii) such additional Class
H Limited Partners own in the aggregate no more than a 1.25% Percentage Interest
in the Partnership, (iv) the admission of the new Class B Limited Partner
complies with the provisions of Section 10.3(a) through (e) and (v) the
admission of the new Class H Limited Partners does not dilute the interest of
the Class A Limited Partner or the General Partner or reduce any amounts
receivable by the Class A Limited Partner or the General Partner in their
capacity as such. The General Partner is authorized to do all things necessary
to effectuate the admission of such additional Limited Partners, each of whom
shall become a signatory by executing a conformed counterpart of this Agreement
and each such additional Partner shall be deemed to have adopted and to have
agreed to be bound by all of the provisions of this Agreement. The original of
this Agreement, executed by the General Partner and the original Partners, and
the duly executed counterparts as aforementioned duly attested by the General
Partner, taken together, shall constitute a single instrument.
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SECTION 5.3 - CAPITAL ACCOUNTS. The Partnership shall establish for
each Partner a Capital Account which shall be maintained as follows:
(a) To each Partner's Capital Account there shall be credited such
Partner's Capital Contributions, such Partner's distributive share of profits
and any items in the nature of income or gain that are specifically allocated
pursuant to Article VI hereof, and the amount of arty Partnership liabilities
that are assumed by such Partner or that are secured by any Partnership property
distributed to such Partner.
(b) From each Partner's Capital Account there shall be debited the
amount of cash and the fair market value of any Partnership property distributed
to such Partner pursuant to any provision of this Agreement, such Partner's
distributive share of losses, and any items in the nature of expenses or losses
that are specially allocated pursuant to Article VI hereof, and the amount of
any liabilities of such Partner that are assumed by the Partnership or that are
secured by any property contributed by such Partner to the Partnership.
(c) In the event any interest in the Partnership is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the
Capital Account of the transferor to the extent it relates to the transferred
interest.
(d) Loans made by any Partner to the Partnership shall not be
considered a Capital Contribution to the Partnership and shall not be credited
to the Partner's capital account.
(e) The foregoing provisions and other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with Treasury Regulation Sections 1.704-1 (b), and shall be interpreted and
applied in a manner consistent with such Regulation. In the event the General
Partner shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto, are computed in order to
comply with the Treasury Regulations, the General Partner may make such
modification, provided that it is not likely to have a material effect on the
amounts distributable to any Partner pursuant to Article XV hereof upon the
dissolution of the Partnership. The General Partner shall adjust the amounts
debited or credited to Capital Accounts with respect to: (a) any property
contributed to the Partnership or distributed to the Partners, and (b) any
liabilities that are secured by such contributed or distributed property or that
are assumed by the Partnership or the Partners, in the event the General Partner
shall determine such adjustments are necessary or appropriate pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv). The General Partner also shall
make any appropriate modifications in the event unanticipated events might
otherwise cause this Agreement not to comply with Treasury Regulation Section
1.704-1(b).
SECTION 5.4 - NON-ASSESSABILITY. No Limited Partner shall be obligated
to make any additional contributions to the Partnership.
SECTION 5.5 - LIMITATION OF LIABILITY OF LIMITED PARTNERS. The
liability of any Limited Partner to provide funds or any other property to the
Partnership shall be limited to the amount of the Partner's required Capital
Contribution. The Limited Partners shall have no further liability to contribute
money to the Partnership for, or in respect of, the liabilities or obligations
of the
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Partnership nor shall any Limited Partner be personally liable for any
obligations of the Partnership.
SECTION 5.6 - WITHDRAWAL; INTEREST. Except as otherwise herein
expressly provided: (a) no Limited Partner shall have the right to withdraw any
part of his Capital Contribution to the Partnership; (b) no Limited Partner, as
a Limited Partner, shall have the right to receive any funds or property of the
Partnership; and (c) no interest shall be paid by the Partnership to any Partner
with respect to any Capital Contribution.
ARTICLE VI
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Distributions of Cash And Allocation of Income
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SECTION 6.1 - GENERAL. The General Partner shall have sole discretion
as to the making and timing of the distributions of Cash Flow and Cash from
Capital Transactions subject to the following provisions:
(a) The Partnership shall retain such funds as the General Partner
deans necessary to cover its business needs, which shall include reserves
against possible losses and the payment or making provision for the payment,
when due, of obligations of the Partnership and obligations secured by any lien
on, or security interest in, property of the Partnership, or reserves to enable
the Partnership to make future distributions to the Partners in accordance with
any business plan established by the General Partner.
(b) Except as otherwise provided in this Agreement, no Limited
Partner shall have priority over any other Limited Partner either as to return
of Capital Contributions or as to distributions. Except as provided in Section
15.6 hereof, no Limited Partner shall have the right to demand or receive
property other than cash in return of his Capital Contributions or as to other
distributions.
SECTION 6.2 - DISTRIBUTIONS OF CASH FLOW. Any Cash Flow that is
available for distribution shall be distributed, not more often than monthly,
but at the sole discretion of the General Partner to the Partners in accordance
with their Percentage Interests.
SECTION 6.3 - DISTRIBUTIONS OF CASH FROM INTERIM CAPITAL TRANSACTIONS.
After providing for the satisfaction of all current debts and obligations of the
Partnership, including any required payments on any loan or other financing, the
General Partner shall distribute the net proceeds from an Interim Capital
Transaction, to the Partners to the extent available (after establishment of
reasonable reserves) in the following manner and order of priority:
(a) First, an amount of such net proceeds equal to the aggregate
balance of the Class A Limited Partner's Unrecovered Capital shall be
distributed to the Class A Limited Partner;
(b) Second, an amount of such net proceeds equal to the aggregate
balance of the Class A Limited Partner's 6% Preferred Return shall be
distributed to the Class A Limited Partner;
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(c) Third, an amount of such net proceeds equal to the aggregate
balance of the Unrecovered Capital of the Class B Limited Partners shall be
distributed to the Class B Limited Partners;
(d) Fourth, an amount of such net proceeds equal to the Balance of
the Class A Limited Partner's 9% Preferred Return shall be distributed to the
Class A Limited Partner;
(e) Fifth, an amount of such net proceeds equal to the Class B
Limited Partners' 9% Preferred Return shall be distributed to the Class B
Limited Partners;
(f) Sixth, an amount of such proceeds up to the Unrecovered
Capital of the General Partner shall be distributed to the General Partner;
(g) Seventh, to (i) the Class A Limited Partner to the extent of
its Balance of the Limited Partners' 15% Preferred Return, and (ii) the Class B
Limited Partners, to the extent of their Balance of the Limited Partners' 15%
Preferred Return. To the extent that the amount available for distribution under
this Section 6.3(g) is less than the sum of the amounts referred to in sections
6.3(g)(i) and (ii), then the amount to be distributed to each group hereunder
shall be based upon a fraction of the amount available, the numerator of such
fraction being the amount referred to in either Section 6.3(g)(i) or (ii), as
the case may be, and the denominator of such fraction being the total of the
amounts referred to in Sections 6.3(g)(i) and (ii);
(h) Eighth, an amount of such net proceeds equal to the Balance of
the Special 15% Priority shall be distributed 75% to the Class B Limited
Partners and 25% to the General Partner;
(i) Ninth, an amount of such proceeds equal to the 15% Preferred
Return shall be distributed to the General Partner.
(j) Thereafter, any remaining net proceeds shall be distributed
three-quarters (75%) to the Limited Partners (to be shared by them pro rata
based upon the relative Percentage Interests of the Limited Partners) and
one-quarter (25%) to the General Partner.
SECTION 6.4 - DISTRIBUTIONS ON LIQUIDATION. All amounts distributed in
liquidation of the Partnership or, except under circumstances with respect to
which this Agreement or any other agreement with the Partners whose interests
are being liquidated contemplates otherwise, of the interests of one or more
Partners, shall be distributed in accordance with the positive Capital Account
balances of the Partners, the interests of which are being liquidated, as
determined after taking into account all Capital Account adjustments for the
taxable year in which such liquidation occurs, including adjustments under
Section 6.7 of this Agreement. Distributions pursuant to this Section 6.4 shall
be made by the end of such taxable year (or, if later, within 90 days after the
date of such liquidation). Notwithstanding anything contained in this Section
6.4, (except as provided in Section 6.14), it is the intention of the Partners
that the distributions on liquidation of the Partnership be made in a manner
similar to the distributions of Interim Capital Transactions contained in
Section 6.3 and, to the extent the ultimate distributions to be made on
liquidation do not conform to the economic arrangement set forth in Section 6.3
the Partners agree and acknowledge that the Capital Accounts of the Partners
will be adjusted to assure that the ultimate distributions to Partners reflect
the distribution priorities contained in Section 6.3.
15
SECTION 6.5 - ALLOCATIONS OF NET PROFITS AND NET LOSS. Subject to
Section 6.8 of this Agreement, Net Profits and Net Loss shall be allocated to
the Partners for each fiscal year of the Partnership, or part of thereof, in
accordance with their Percentage Interests.
SECTION 6.6 - ALLOCATION OF GAIN AND LOSS FROM CAPITAL TRANSACTIONS
(OTHER THAN UPON A LIQUIDATION). Subject to Section 6.8 of this Agreement, Net
Profits from interim Capital Transactions (other than upon a liquidation of the
Partnership) shall be allocated among the Partners in the following amounts and
priorities:
(a) First, to those Partners to whom distributions were made or
are to be made under Section 6.3 as (i) 6% Preferred Return, (ii) Balance of the
Class A Limited Partner's 9% Preferred Return, (iii) 9% Preferred Return, (iv)
Balance of the Limited Partners' 15% Preferred Return, (v) Balance of the
Special 15% Priority, or (vi) 15% Preferred Return from the net proceeds from
the Interim Capital Transactions, in the amount by which any such distribution
exceeded, or with respect to prospective distributions, will exceed his or its
Capital Account. In the event the Net Profits to be allocated are less than the
aggregate excess described above, each Partner will be allocated that portion of
the Net Profits to be allocated pursuant to this Section 6.6, the numerator of
which is the differential between its distribution and its Capital Account and
the denominator of which is the aggregate differential for all Partners; and
(b) Thereafter, the balance of Net Profits from Interim Capital
Transactions shall be allocated 75% to the Limited Partners (to be shared by
them pro rata based upon their relative Percentage Interests) and 25% to the
General Partner;
(c) Net losses from Interim Capital Transactions shall be
allocated among the Partners as follows:
(1) First, to the Partners in proportion to their Capital
Accounts, until their Capital Accounts are reduced to zero; and
(2) Thereafter, the balance of Net Losses, if any, shall be
allocated among the Partners pro rata in accordance with their Percentage
Interests.
SECTION 6.7 - ALLOCATION OF NET PROFITS AND NET LOSS FROM CAPITAL
TRANSACTIONS UPON A LIQUIDATION OF THE PARTNERSHIP.
(a) Except as provided in Section 6.8, all Net Profits of the
Partnership in connection with a dissolution and winding up of the Partnership
shall be allocated to the Partners in the following manner and priority:
(1) First, to the Class A Limited Partner until the positive
balance in the Capital Account of the Class A Limited Partner is equal to the
sum of the Unrecovered Capital of the Class A Limited Partner and the 6%
Preferred Return;
(2) Then, to the Class B Limited Partners until the positive
balance in the Capital Account of the Class B Limited Partners is equal to the
Unrecovered Capital of the Class B Limited Partners.
(3) Then, to the Class A Limited Partner until the positive
balance in the Capital Account of the Class A Limited Partner is increased by an
amount equal to the Balance of the Class A Limited Partner's 9% Preferred
Return;
16
(4) Then, to the Class B Limited Partners until the positive
balance in the Capital Account of the Class B Limited Partners is increased by
an amount equal to the 9% Preferred Return;
(5) Then, to the General Partner until the positive balance of
the Capital Account of the General Partner is equal to the Unrecovered Capital
of the General Partner;
(6) Then, to the Limited Partners until the positive balance
in the Capital Account of the Limited Partners is increased by an amount equal
to the Balance of the Limited Partners' 15% Preferred Return under Section
6.3(g);
(7) Then, to the Class B Limited Partners and the General
Partner until the positive balance in their Capital Accounts is increased by the
Balance of the Special 15% Priority that is or was distributed to such Partners
under Section 6.3(h);
(8) Next, to the General Partner until the positive balance in
the Capital Account of the General Partner is increased by an amount equal to
the 15% Preferred Return;
(9) Thereafter, to the Partners in accordance with, and in
proportion to the amounts received, or to be received, by them pursuant to
Section 6.3(j).
(b) Net Losses from Capital Transactions upon a liquidation of the
Partnership shall be allocated first to those Partners with positive Capital
Account balances, pro rata, until such Capital Account balances have been
reduced to zero. The balance of Net Losses, if any, shall be allocated, pro
rata, in accordance with the Partners' Percentage Interests.
SECTION 6.8 - MINIMUM GAIN CHARGEBACK; QUALIFIED INCOME OFFSET.
Notwithstanding any allocation in this Article VI:
(a) No Net Loss and no Net Loss from Capital Transactions shall be
allocated to any Partner to the extent that such allocation would cause or
increase the amount of a deficit balance in such Partner's Capital Account at a
time when any other Partner has a positive balance in his Capital Account. Any
Net Loss and any Net Loss from Capital Transaction not allocable to a Partner by
reason of the foregoing sentence shall be allocated to any remaining Partners
having positive Capital Account balances until such balances have been reduced
to zero.
(b) In the event that: (i) any Partner or Partners unexpectedly
receives any adjustment, allocation, or distribution described in Treasury
Regulation Sections 1.704-1(b)(2)(ii) (d)(4), (5) or (6), and (ii) such
adjustment, allocation or distribution causes or increases a deficit balance in
such Partner's or Partners' Capital Accounts) as of the end of the Partnership
taxable year to which such adjustment, allocation or distribution relates, then,
notwithstanding the provisions of Sections 6.5, 6.6 and 6.7 hereof, items of
gross income (consisting of a pro rata portion of each item of gross income) for
such taxable year and each subsequent year shall be allocated among all such
Partners in proportion to such deficit balances or increases in such deficit
balance created or caused by such adjustment, allocation or distribution, as the
case may be, to eliminate such deficit balances or increases in such deficit
balances, as the case may be, as quickly as possible.
(c) In the event that during a Partnership taxable year there is a
net decrease in the Partnership "Minimum Gain" (within the meaning of Treasury
Regulation Section 1.704-1(b)(4) (iv)(c)), then, prior to any other allocation
under Sections 6.5, 6.6 and 6.7, of all items of income and gain, each Partner
must be allocated items of income and gain for such year (and, if necessary, for
subsequent years) in proportion to, and to the extent of, an amount equal to the
17
greater of (i) the portion of such Partner's share of the net decrease in
Partnership Minimum Gain during such year that is allocable to the disposition
of Partnership Property subject to one or more nonrecourse liabilities of the
Partnership, or (ii) the deficit balance in such Partner's Capital Account at
the end of such year (determined before any allocation of Partnership income,
gain, loss, deduction, or Code Section 705(a)(2)(H) expenditures for such year
and after making the adjustments required by Treas. Reg. ss.1.704-1(b)
(2)(ii)(d).
For purposes of clauses (a), (b) and (c) of this Section 6.8, the
Capital Account balances of all Partners shall be adjusted as provided in
Treasury Regulation Section 1.704-1(b)(2) (ii)(d) and to reflect each Partner's
share of the Partnership minimum gain as provided in Treasury Regulation Section
1.704-1 (b)(4)(iv) as of the end of the Partnership taxable year.
SECTION 6.9 - MONTHLY SEGMENTS; ALLOCATIONS AMONG PARTNERS.
(a) Except as otherwise provided in this Agreement, all income,
gains, losses, deductions, credits and cash flow that are allocated or
distributed to the Limited Partners shall be allocated or distributed among them
in proportion to their respective Percentage interest as measured on the last
day of the appropriate monthly segment.
(b) The Partnership shall divide each fiscal year into 12 monthly
segments for the purpose of allocating income, gains, losses, deductions,
credits and distributions to Partners who were members of the Partnership at the
end of each such monthly segment (hereinafter "segment"). In any case, each
segment shall be based on calendar months so that segments shall end on the last
day of each month whether or not the fiscal year is less than 12 months. Any
Partner entering the Partnership during any month shall be deemed to enter the
Partnership on the first day of the month and the income, gain, loss, deduction
and distributions, if any, attributable to such Partner will be allocated to
such Partner based on the closing of the books method.
(c) Any allocations or distributions made hereunder to the Class H
Limited Partners shall be shared between them in accordance with their relative
Percentage Interests in the Partnership.
SECTION 6.10 - NO NEGATIVE RESTORATION. In no event shall any Partner,
by reason of his or its execution of this Agreement, be liable to pay for any
loss beyond the amount of his or its Capital Contribution, or be personally
liable for any debts of the Partnership except to the extent provided by the
Act, or this Section 6.10. Each Limited Partner understands, however, that to
the extent required by applicable partnership law, if he or it receives the
return in whole or in part of his or its Capital Contribution, he may be liable
to the Partnership for any sum, not in excess of such return with interest
necessary to discharge the Partnership's liabilities to creditors.
SECTION 6.11 - ACCOUNTING. The Partnership shall use the method of
accounting directed by the General Partner. The fiscal year of the Partnership
shall be the calendar year except that in any year the Partnership shall
commence or terminate for federal income tax purposes, the then current fiscal
year shall either begin on the date of commencement or end on the date of such
termination, as the case may be.
18
SECTION 6.12 - BOOK-UP PROVISIONS. Notwithstanding anything else
contained herein, if the General Partner in its sole discretion so determines,
upon the receipt of additional Capital Contributions from Partners, the assets
of the Partnership shall be valued by the General Partner, any unrecognized gain
or loss with respect to the Partnership's assets shall be allocated to the
Capital Accounts of the Partners in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f), the Capital Accounts of the Partners shall be maintained
in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(g), and the
allocations of items of taxable income, gain, deduction and loss with respect to
such assets shall be made in accordance with Treasury Regulation Section
1.704-1(b)(4)(i).
SECTION 6.13 - SECTION 704(C) ALLOCATIONS. In accordance with Code
section 704(c) and the Regulations thereunder, income, gain, loss and deduction
with respect to any property contributed to the capital of the Partnership,
including DMCS Shares, shall, solely for tax purposes, be allocated among the
Partners so as to take into account the variation between the adjusted basis of
the property to the Partnership for federal income tax purposes and its initial
gross value. Allocations pursuant to this Section 6.13 are solely for purposes
of federal, state and local taxes and shall not affect or be taken into account
in computing any Partner's Capital Account or share of Net Profits or Net Losses
or other items or distributions pursuant to any provision of this Agreement.
SECTION 6.14 - SPECIAL 35% PROFITS LIMITATION. Notwithstanding anything
contained in this Agreement to the contrary, the individual Class B Limited
Partner's profits interest in the Partnership (as such term is defined in Code
section 4946) (when combined with the indirect profits interest in the
Partnership held by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) shall in no event exceed 354. In the
event that the Individual Class B Limited Partner's profits interest in the
Partnership were to exceed 354 (when combined with the indirect profits interest
of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), the Partners agree and acknowledge that any return in
excess of such 35% profits interest in the Partnership shall be reallocated away
from the Individual Class B Limited Partner and to The ▇▇▇▇▇▇▇▇▇ Family
Charitable Foundation, or any successor to the Class B Limited Partner interest
held by The ▇▇▇▇▇▇▇▇▇ Family Charitable Foundation, so that after such
reallocation has been effectuated the individual Class B Limited Partner's
profits interest in the Partnership (when combined with the indirect, profits
interest in the Partnership held by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) is no greater than 35%.
ARTICLE VII
-----------
Tax Matters Partner
-------------------
SECTION 7.1 - TAX MATTERS PARTNER. The Partnership hereby designates
the General Partner to act as the Tax Matters Partner in accordance with
Internal Revenue Code Section 6231, as the same may be, from time to time,
amended. In the event that the General Partner ceases, for any reason, to be a
general partner, or if it shall resign as Tax Matters Partner, the remaining
General Partner, if any, shall be the Tax Matters Partner, and, if there is no
remaining General Partner, then a Super Majority of the Partners shall designate
the Partner to serve as Tax Matters Partner.
19
ARTICLE VIII
------------
Rights, Obligations and Representations of the General Partner
--------------------------------------------------------------
SECTION 8.1 - POWER AND AUTHORITY OF THE GENERAL PARTNER.
(a) Except for actions requiring approval by a Super majority or
majority, full and complete discretion in the management and control of the
affairs of the Partnership shall be vested in the General Partner, the Managing
Partner of which is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(b) Notwithstanding anything herein to the contrary, the General
Partner's management authority under Section 8.l(a) shall include, but not be
limited to, (i) the right to determine who gets elected to the Board of
Directors of DMCS and to otherwise exercise all rights the Partnership has with
respect to voting and holding the DMCS Shares, (ii) the authority, on behalf of
the Partnership, to execute any Purchase and Sale Agreements with respect to the
acquisition or disposition of the DMCS Shares, and (iii) to execute financial
applications for, and all documents pertaining to, the financing, if any, of the
acquisition of the DMCS Shares and/or any subsequent financing, refinancing or
disposition of the DMCS Shares, all upon such terms and conditions as the
General Partner, in its sole discretion, shall determine.
SECTION 8.2 - ACTIONS REQUIRING A SUPER MAJORITY. In addition to
actions set forth elsewhere in this Agreement, the following actions of the
Partnership shall require approval by a Super majority:
(a) changing the nature of the Partnership business; or
(b) any modification of the CDA Loan Agreement or any agreements
in respect of any other material indebtedness of the Partnership;
(c) converting the DMCS Shares to Class A Common Stock of DMCS; or
(d) approving an amendment, other than an amendment in accordance
with Section 12.5, to this Agreement.
SECTION 8.3 - NOTIFICATION OF APPROVAL REQUIRED. When, under any
provision of this Agreement, the approval or ratification of a Super Majority is
required, the General Partner shall send notice in accordance with Section 16.5.
SECTION 8.3A ACTIONS REQUIRING APPROVAL OF A MAJORITY. In addition to
the actions set forth elsewhere in this Agreement, the Partnership shall not
sell, transfer or exchange more than 1,115,245 DMCS Shares in the aggregate
(including all prior transfers of DMCS Shares by the Partnership) without the
approval of a majority.
SECTION 8.4 - REIMBURSEMENT. The General Partner shall be entitled to
current reimbursement from the Partnership's assets for reasonable costs and
expenses incurred by the General Partner while acting on behalf of the
Partnership. The Tax Matters Partner shall be entitled to reimbursement for all
reasonable costs and expenses incurred by him in connection with any audit,
administrative proceeding or judicial proceeding, including, but not by way of
limitation, the fees of accountants, attorneys and other professional advisors.
20
SECTION 8.5 - REPRESENTATIONS BY GENERAL PARTNER. The General Partner
does hereby represent and warrant that:
(a) the appropriate documents have been or will be filed which
will constitute the Partnership as duly organized and validly existing under the
laws of the State of Connecticut; and
(b) the execution and delivery of all instruments and the
performance of all acts heretofore or hereafter made or taken, or to be made or
taken, pertaining to the Partnership or the Partnership Property by the General
Partner have been or will be duly authorized by all necessary action and the
consummation of any such transactions with, or on behalf of, the Partnership
will not constitute a violation of any law, administrative regulation or court
decree.
SECTION 8.6 - OTHER ACTIVITIES. The General Partner shall devote only
such time to the Partnership's business as shall be reasonably required. The
Limited Partners hereby acknowledge that the partners of the General Partner are
officers of DMCS and that as such, a substantial portion of their time will be
devoted to their responsibilities and obligations to DMCS as officers of DMCS.
The Limited Partners acknowledge that they will not consider such
responsibilities of the partners of the General Partner to conflict with the
ability of the General Partner to act as General Partner of the Partnership. The
Limited Partners hereby expressly waive any claim they may have against the
General Partner, or the partners of the General Partner, for breach of the
General Partner's fiduciary obligation to the Partnership due, or relating to
the status of the partners of the General Partner as officers of DMCS, provided,
however, that the waiver set forth herein is not intended to, and does not,
waive any claim that the Partnership may have, in its capacity as a shareholder,
against the said officers by virtue of any willful misconduct by said officers.
SECTION 8.7 - PERIODIC REPORTING. The General Partner shall furnish to
the Limited Partners, within 10 days after they are received by the General
Partner, copies of all proxy statements, annual reports, and other Securities
and Exchange Commission filings received by the General Partners from DMCS. In
addition, the General Partner shall provide to the Limited Partners copies of
all financial statements and other reports and certificates provided to the CDA,
when and as such reports and other information are provided to the CDA.
ARTICLE IX
----------
Other Partner Provisions
------------------------
SECTION 9.1 - ACTIONS OF THE GENERAL PARTNER. Whenever in this
Agreement or any other agreement contemplated herein, the General Partner is
permitted or required to make a decision (i) in its "discretion" or "sole
discretion", with "complete discretion" or under a grant of similar authority or
latitude, the General Partner shall be entitled to consider only such interest
and factors as it desires and shall have no duty or obligation to consider any
interest of or factors affecting the Limited Partners or their assigns or (ii)
in its "good faith" or under another express standard, the General Partner shall
be subject to only such express standard and shall not be subject to any other
or different standards imposed by the Act, any other applicable law, statute,
rule or regulation, or any other agreement contemplated herein. Each Limited
Partner and each assignee hereby agrees that any standard of care or duty
imposed in this Agreement or any other
21
agreement contemplated herein or under the Act or any other applicable law,
rule, or regulation, shall be modified, waived or limited in each case as
required to permit the General Partner to act under this Agreement or any other
agreement contemplated herein and to make any decision pursuant to the authority
prescribed in this Section 9.1, so long as such action or decision does not
constitute gross negligence, malfeasance or fraud and is not reasonably believed
by the General Partner to be inconsistent with the overall purposes of the
Partnership. The General Partner may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture or other paper
or document believed by the General Partner to be genuine and to have been
signed or presented by the proper party or parties. The General Partner may
consult with legal counsel, accountants, appraisers, management consultants,
investment bankers and other consultants and advisors selected by the General
Partner. The opinion of such person as to matters which the General Partner
believes to be within such person's professional or expert competence shall be
full and complete authorization and protection in respect of any action taken or
suffered or omitted by the General Partner in good faith and in accordance with
such opinion.
SECTION 9.2 - THIRD PARTY RELIANCE ON AUTHORITY OF THE GENERAL PARTNER.
The signed statement of the General Partner reciting that the General Partner
has authority to undertake any act or has the necessary votes or consents of the
Partners to take any such act, when delivered to any third party, including any
lender or purchaser (including any purchaser of the DMCS Shares from the
Partnership) ("Third Party"), shall be all of the evidence such Third Party
shall need concerning the capacity of such General Partner and any such Third
Party shall be entitled to rely upon such statement and shall not be required to
inquire further as to any of the facts contained in such statement, said facts
being deemed to be true insofar as such Third Party is concerned (provided,
however, that such Third Party may not rely upon such statement and deem it to
be true if such Third Party has actual knowledge to the contrary). After
delivering such statement, the General Partner by its signature alone, may sign
any instrument and bind the Partnership and the Partnership Property just as
though all of the Partners had also signed. The Limited Partners and/or their
assigns hereby waive any and all defenses or other remedies that may be
available against any such Third Party or other person to contest, negate or
disaffirm any action of the General Partner in connection with any such
statement provided for in this Section 9.2. Each contract, agreement, deed,
mortgage, security agreement, promissory note or other instrument or document
executed by the General Partner, or its representative, with respect to the
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 and delivery thereof, this Agreement was in full force and
effect, (b) such instrument or document was duly executed in accordance with the
terms and provisions of this Agreement and is binding upon the Partnership, and
(c) the General Partner, or its representative, was duly authorized and
empowered to execute and deliver any and every such instrument or document for
and on behalf of the Partnership. Such statement shall not, however, have any
effect between the Partners unless the action in question was in fact authorized
pursuant to this Agreement.
22
ARTICLE X
---------
Rights and Obligations of Limited Partners
------------------------------------------
SECTION 10.1 - AUTHORITY OF LIMITED PARTNERS. Except as set forth in
this Agreement, or as permitted by the General Partner, no Limited Partner
(unless such Limited Partner shall also be a General Partner acting in such
capacity) shall:
(a) take part in the management of the business or transact any
business on behalf of the Partnership; or
(b) have the power to execute instruments or documents on behalf
of the Partnership or bind the Partnership in any manner.
SECTION 10.2 - RIGHTS OF LIMITED PARTNERS. Each Limited Partner (or its
duly authorized agent) shall have the right:
(a) under reasonable circumstances to inspect at the office of the
Partnership during ordinary business hours and to copy at the requesting
Partner's expense:
(1) the list of the names and business addresses of the
Partners; and
(2) the Certificate of Limited Partnership, including
amendments, and powers of attorney utilized in the execution of such documents;
and
(3) Partnership income tax returns for the three most recent
years; and
(4) the written Partnership Agreement with all Amendments; and
(5) financial statements of the Partnership for the three most
recent years.
(b) to obtain from the General Partner from time to time on
reasonable demand just and reasonable information including the state of the
business and financial condition of the Partnership and copies of the
Partnership tax returns after such become available.
SECTION 10.3 - ASSIGNMENT BY PARTNERS. Except as provided in Article
XI, or Sections 10.5 or 5.2, and except for any transfer by the Class A Limited
Partner of all or any portion of its interest in the Partnership to any
Affiliate of such Limited Partner, no Limited Partner may transfer his interest
in the Partnership, voluntarily or involuntarily, unless such Limited Partner
complies with the right of refusal provisions contained in Section 10.4. No such
assignee shall become a Partner of the same class as his assignor unless:
(a) such person executes an instrument reasonably satisfactory to
the General Partner accepting and adopting the terms and provisions of this
Agreement; and
(b) in the case of assignments other than by operation of law, the
assignor states his intention in writing to have his assignee become a Partner
of the same class; and
(c) such assignee executes a Power of Attorney as described in
Article XII and such other documents as the General Partner may reasonably
require; and
(d) all expenses and costs relating to the assignment, including
the General Partner's attorneys' fees, shall be paid by the assignor or
assignee; and
23
(e) except for employees of DMCS who acquire their Class B Limited
Partner interest in the Partnership pursuant to Section 5.2, the transferee is
not a person or entity (i) which owns, operates or franchises convenience stores
and/or gasoline stations (a "Competing Person") or (ii) which controls, is
controlled by, or is under common control with a Competing Person.
If the foregoing conditions are not complied with, the Partnership need
not recognize such assignment for any purpose. The assignment by a Limited
Partner or by an assignee of a Limited Partner, shall become effective on the
day of receipt by the General Partner of evidence of such assignment and of
compliance with this Section 10.3.
SECTION 10.4 - RIGHT OF FIRST REFUSAL. Except with respect to (i)
transfers permitted pursuant to Article XI or Section 5.2, or (ii) transfers by
the Class A Limited Partner of all or, a portion of its interest in the
Partnership to any Affiliate of such Limited Partner, in the event a Limited
Partner desires to sell all or any part of his interest in the Partnership, the
Limited Partner may sell such interest only in accordance with this Section. In
the event a Limited Partner receives a bona fide offer ("Offer") to purchase his
interest (excluding an offer to purchase from another Partner), then such
Limited Partner shall provide the General Partner with a copy of the Offer. In
the event a Limited Partner has not received an Offer but desires to sell all or
any part of his interest in the Partnership, he may give the General Partner a
written statement indicating the price and term: that such Partner would be
willing to sell such interest (also an "Offer"). The General Partner shall then
have a period of twenty (20) days ("Notice Period") within which to give written
notice to the Limited Partner of its intention to purchase such interest (or
cause the Partnership to purchase such interest) in accordance with the terms of
the Offer. Failure to notify the Limited Partner within the Notice Period shall
be deemed a rejection. If the Offer is rejected, the selling Limited Partner
shall be free to consummate such sale in accordance with the Offer for a period
of one hundred and twenty (120) days next following the end of the Notice
Period, provided that all of the requirements of Section 10.3 are complied with.
Failure to consummate such sale within the one hundred and twenty (120) day
period shall cause such interest to be resubjected to the right of first refusal
set forth in this Section. In the event more than one Partner accepts the Offer,
then each such accepting Partner shall be entitled to purchase a proportionate
amount of the interest being sold.
SECTION 10.5 - RIGHT TO GIFT INTEREST. Notwithstanding the transfer
restrictions contained in this Article X, The ▇▇▇▇▇▇▇▇▇ Family Charitable
Foundation, Inc. (the "Foundation") shall be permitted to transfer its Class B
interest in the Partnership by gift so long as such transfer is necessary or
required to avoid the imposition on the Foundation, or on any of its affiliates,
of the "excess business holdings" excise tax under Code section 4943.
ARTICLE XI
----------
Special Transfer Provisions
---------------------------
SECTION 11.1 - TRANSFER OF LIMITED PARTNERSHIP INTEREST. Commencing
five years and six months after the Closing Date, if the Term of the Partnership
has been extended beyond such date, any Limited Partner whose Percentage
Interest in the Partnership is greater than 30% may sell all or a portion of his
or its limited partnership interest in the Partnership, so long as such sale is
made in accordance with the following provisions:
24
(a) The Limited Partner must notify the General Partner, in
writing, of his or its desire to sell his or its interest in the Partnership. On
behalf of the Limited Partnership, the General Partner will thereafter negotiate
with the Limited Partner to acquire the Limited Partner's interest in the
Partnership. If, within 30 days after receipt of such written notice by the
General Partner, the General Partner and the Limited Partner do not reach an
agreement as to the acquisition by the Partnership of the interest of the
Limited Partner in the Partnership, the Limited Partner will thereafter have the
right to offer his or its Limited Partnership interest to a third party.
(b) if the Limited Partner receives an offer to purchase his or
its Limited Partnership interest from a third party (the "Offer"), the Limited
Partner shall comply with the provisions of Section 10.4 above.
(c) If the Limited Partner and the General Partner cannot agree on
the terms on which the Partnership would acquire the Limited Partner's interest
in accordance with Section 11.1(a) herein, and if the Limited Partner is unable
to find a third party purchaser within 60 days thereafter, then the Limited
Partner will have the right to either: (i) demand that the Limited Partnership
be dissolved, and that the assets of the Partnership be distributed to the
Partners in accordance with Article XV of this Agreement; or (ii) cause the
assets of the Limited Partnership to be sold. In the event the assets of the
Partnership are distributed, the Limited Partner will also have the right to
request that DMCS file a registration statement on the Limited Partner's behalf
on terms and conditions that are customarily applicable to registration rights
granted to the holders of convertible securities and, in such event, General
Partner will use its best efforts to cause such registration statement to be
filed and become effective.
ARTICLE XII
-----------
Power of Attorney
-----------------
SECTION 12.1 - POWER OF ATTORNEY. Each Limited Partner irrevocably
constitutes and appoints the General Partner as his true and lawful attorney, in
his name, place and ▇▇▇▇▇, to make, execute, acknowledge and file:
(a) a Certificate of Limited Partnership setting forth the terms
of this Agreement as required by the laws of the State of Connecticut; and
(b) any Certificate or other instrument which may be required to
be filed by the Partnership under the laws of the State of Connecticut or which
the General Partner shall deem it advisable to file; and
(c) any and all amendments or modifications of the Agreement
described in Section 12.5 and any Amended Certificates of Limited Partnership
required as a result of any such Amendments; and
(d) all documents which may be required to effectuate the
formation, qualification, continuation, dissolution or termination of the
Partnership.
25
SECTION 12.2 - ASSIGNMENT. The foregoing Power of Attorney, as well as
all other such Powers of Attorney contained in this Agreement, shall survive the
delivery of an assignment by any Limited Partner of the whole or any portion of
his interest in this Partnership.
SECTION 12.3 - ADMISSION OF LIMITED PARTNER. The General Partner shall
require an assignee of a Limited Partner to execute as a condition to his
admission as a Limited Partner, a Power of Attorney satisfying the requirements
of this Article.
SECTION 12.4 - IRREVOCABLE. The foregoing Power of Attorney is a
special Power of Attorney coupled with an interest, is irrevocable and shall
survive the death, disability, bankruptcy, insolvency or dissolution of the
Limited Partner.
SECTION 12.5 - AMENDMENTS BY GENERAL PARTNER. The General Partner,
through use of the Powers of Attorney, shall have the right to amend this
Agreement, if such Amendments are:
(a) of an inconsequential nature and do not affect the rights of
the Limited Partners in any material respect;
(b) required or contemplated by this Agreement as, for example,
upon the admission of additional Limited Partners;
(c) in the opinion of counsel to the General Partner, necessary to
conform to the requirements of state or Federal law. Any Amendment so made shall
be deemed effective as of the date of this Agreement; or
(d) approved by a Super Majority of the Partners.
ARTICLE XIII
------------
Indemnification
---------------
SECTION 13.1 - INDEMNIFICATION OF GENERAL PARTNER. Except as provided
in this Article XIII, the General Partner shall not be liable to the Limited
Partners due to any actions taken by the General Partner. In addition, any act
or omission by the General Partner the effect of which may cause or result in
loss or damage to the Partnership or the Limited Partners, if done in good faith
and in accordance with sound business practices and otherwise in accordance with
the terms of this Agreement, shall not subject the General Partner, or any of
its partners, representatives, successors and assigns, to any liability. The
Partnership agrees to indemnify and hold the General Partner, their
representatives, successors and assigns, harmless from any claim, loss, expense,
liability, action or damage resulting from any such act or omission, including,
without limitation, reasonable costs and expenses of administrative reviews and
hearings with the IRS or other government agencies, litigation and appeal (and
the reasonable fees and expenses of attorneys and accountants engaged by the
General Partner in connection with any such administrative procedure or in the
prosecution or defense of such litigation or appeal), but the General Partner
shall not be entitled to be indemnified or held harmless due to, or arising
from, its gross negligence or willful misconduct.
SECTION 13.2 - INDEMNIFICATION OF PARTNERSHIP. The General Partner
shall indemnify and hold the Partnership, and the Limited Partners harmless from
and against any claim, loss,
26
expense, liability, action or damage including, without limitation, reasonable
costs and expenses of litigation and appeal (and the reasonable fees and
expenses of counsel) due to or arising out of such General Partner's gross
negligence or willful misconduct.
ARTICLE XIV
-----------
Restriction Against Transfers By General Partner; Removal of General Partner
----------------------------------------------------------------------------
SECTION 14.1 - REMOVAL OF GENERAL PARTNER. The General Partner may be
removed as the General Partner only for gross negligence or willful misconduct.
Removal of a General Partner may be effected only by delivery of a written
notification to, the General Partner requesting removal of the General Partner,
which notification must be signed by a Super Majority of the Partners. The
notification shall set forth in reasonable detail the cause for removal, and
shall bear the witnessed and notarized signature of each Limited Partner joining
in said notification. The notification must also set forth the name and address
of a general partner which the signatory Limited Partners propose in
substitution for the removed General Partner.
SECTION 14.2 - EFFECT OF REMOVAL. The removal of the General Partner
shall be effective upon election of a successor General Partner. A General
Partner so removed shall be entitled to receive that amount that would be due
him had the assets of the Partnership been sold at their fair market value as of
the date of the removal and such proceeds were distributed among the Partners in
accordance with Section 6.4. Such removed General Partner shall not be entitled
to any other distributions or to exercise any of the rights of a Partner. The
Percentage Interest of the removed General Partner shall, as of the effective
date of such removal, be vested in the successor General Partner if the removed
General Partner was the sole General Partner.
SECTION 14.3 - SUCCESSOR. The consent of a Super Majority is required
to choose an additional or successor General Partner, but no sole remaining
General Partner may be removed unless and until a successor General Partner
shall have been elected. In the event that the sole remaining General Partner is
removed and no successor shall be elected within 90 days of the effectiveness of
such removal, then the Partnership shall be dissolved.
SECTION 14.4 - TRANSFER OF GENERAL PARTNER'S INTEREST. The General
Partner may not sell, transfer (voluntarily or by operation of law), assign or
encumber by pledge or otherwise any part of its general partnership interest,
nor may more than 50% of the beneficial ownership of the General Partner be sold
or transferred (other than to persons who are already partners of the General
Partner on the date hereof), without first obtaining the written consent of a
Super Majority of the Limited Partners, which consent shall not be unreasonably
withheld or delayed.
ARTICLE XV
Dissolution and Termination
---------------------------
SECTION 15.1 - EVENTS OF DISSOLUTION. The Partnership shall be
dissolved upon the happening of the first to occur of the following:
(a) The expiration of its Term, as provided in Section 4.1.
(b) A disposition by the Partnership of more than 1,115,245 DMCS
Shares in the aggregate (including all prior dispositions of DMCS Shares by the
Partnership), except that
27
upon the happening of such event, the General Partner can extend the Partnership
for reasonable periods of time upon the vote of a Super Majority of the
Partners.
(c) The bankruptcy, insolvency, death, incompetency or other event
set forth in Section 34-28 of the Connecticut General Statutes ("Event of
Withdrawal") by, of, on to the General Partner except that the Partnership shall
not be dissolved if either:
(1) a remaining General Partner, if any, continues the
business of the Partnership, or
(2) within 90 days followings such event a Super Majority of
Limited Partners agree in writing to continue the business of the Partnership
and to the appointment of one or more successor General Partner.
(d) A determination by the General Partner to dissolve the
Partnership.
(e) The failure to elect a successor to a sole remaining General
Partner who has withdrawn, dissolved or been removed within the time required by
Section 14.3.
(f) Any Limited Partner electing pursuant to Section 11.1(c)(i) to
cause the Partnership to be dissolved.
SECTION 15.2 - PRIORITY OF DISTRIBUTION. If the Partnership shall
terminate for any reason, the General Partner shall proceed to the liquidation
of the Partnership, subject to the rights of the Class A Limited Partner under
Section 15.6 hereof to elect to receive certain distributions in kind, and the
proceeds of such liquidation shall be applied and distributed in the following
order of priority:
(a) To expenses of liquidation, and to creditors, including
Partners who are creditors, to the extent permitted by law, in satisfaction of
liabilities of the Partnership, except for distributions due Partners under
Sections 34-20(d) and 34-27(d) of the Act.
(b) To the setting up of any reserves which the General Partner
may deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Partnership or of the General Partner (other than any
liabilities for which the General Partner is not entitled to indemnification
under Article XIII or in respect of which the General Partner must indemnify the
Partners or the Partnership, in each case because of the General Partner's gross
negligence or willful misconduct) arising out of, or in connection with, the
Partnership. Such reserve shall be paid over by the General Partner to a
commercial bank or an attorney-at-law of the State of Connecticut, as escrowee,
to be held for the purpose of disbursing such reserves in payment of any of the
aforementioned contingencies, and, at the expiration of such period, as the
General Partner shall deem advisable, to distribute the balance thereafter
remaining in the manner hereinafter provided.
(c) To Partners and former Partners in satisfaction of liabilities
for distributions under Sections 34-20(d) and 34-27(d) of the Act.
(d) Any balance then remaining shall be distributed among all
Partners in accordance with Section 6.4.
28
SECTION 15.3 - PERIOD OF DISSOLUTION. A reasonable time (but in no
event later than the latter of the end of the taxable year of the liquidation of
the Partnership or 90 days after the date of the termination) shall be allowed
for the orderly liquidation of the assets of the Partnership and the discharge
of liabilities to creditors so as to enable the General Partner to minimize the
normal losses attendant upon a liquidation.
SECTION 15.4 - STATEMENT. Each of the Partners shall be furnished with
a statement prepared by the Partnership's then independent accountants, which
shall set forth the assets and liabilities of the Partnership as of the date of
complete liquidation. Upon the General Partner complying with the foregoing
distribution plan (including payment over to an escrowee if there are sufficient
funds therefor), the General Partner shall execute and cause to be filed a
Certificate of Cancellation of the Partnership.
SECTION 15.5 - LIABILITY FOR CAPITAL CONTRIBUTIONS. The General Partner
shall not be personally liable for the return of the Capital Contributions of
the Limited Partners or any portion of such Capital Contribution. Any such
return, if any, shall be made solely from Partnership assets.
SECTION 15.6 - DISTRIBUTION OF ASSETS. (a) Upon any termination or
dissolution of the Partnership, the Class A Limited Partner shall have the
right, upon written notice to the General Partner (the "Notice"), to elect to
receive its distribution in the form of the assets of the Partnership if the
Class A Limited Partner shall determine in its reasonable judgment that the net
sales value of the Partnership's assets would be insufficient to enable such
Limited Partner to recover its Unrecovered Capital and the 6% Preferred Return.
In such event, the assets of the Partnership shall be valued at their fair
market sales value which, in the case of any DMCS Shares held by the
Partnership, shall equal the average closing sale price of such stock for the
ten (10) trading days immediately preceding the date of termination or
dissolution as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or if then listed on an exchange, the principal
exchange. The Class A Limited Partner may give the Notice up to 150 days prior
to a scheduled termination or dissolution of the Partnership, and for such
purposes (but not for purposes of determining the value of the assets for the
distribution or the right of the Class A Limited Partner ultimately to receive
its distribution in kind, which shall be determined as of the date of
termination or dissolution), the fair market sales value of the assets of the
Partnership shall be determined as of the date of the Notice (and in the case of
any DMCS Shares, shall equal the average closing sales price of such stock for
the ten trading days immediately preceding the date of the Notice as reported by
the National Association of Securities Dealers, Inc. Automated Quotation system,
or if then listed on an exchange, the principal exchange).
(b) Notwithstanding the Class A Limited Partner's right to receive
DMCS Shares contained in Section 15.6(a), if the General Partner, within 60 days
after receipt of the Notice enters into a binding contract on behalf of the
Partnership, to sell the assets of the Partnership (the "Sales Contract") at a
net sales value which would allow the Class A Limited Partner to recover its
Unrecovered Capital plus the 6% Preferred Return, then the General Partner shall
be free to consummate such sale in accordance with the Sales Contract for a
period of ninety (90) days next following the date of the Sales Contract.
Failure to consummate such
29
sale within the ninety day period shall entitle the Class A Limited Partner to
receive the assets of the Partnership pursuant to Section 15.6(a).
ARTICLE XVI
-----------
Concluding Provisions
---------------------
SECTION 16.1 - ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties. There are no oral understandings, terms or
conditions, and no party has relied upon any representation, express or implied,
not contained in this Agreement except as set forth in the Representations
Agreement
SECTION 16.2 - AMENDMENTS. Except as provided in Section 12.5, this
Agreement may not be amended in any respect whatsoever except by a further
agreement, in writing, fully executed by each of the parties.
SECTION 16.3 - SUCCESSORS. Subject to the restrictions on transfer set
forth herein, this Agreement shall be binding upon and inure to the benefit of
the parties and to their respective heirs, personal representatives, successors
and assigns.
SECTION 16.4 - CAPTIONS. The captions of this Agreement are for
convenience and reference only and in no way define, describe, extend or limit
the scope or intent of this Agreement or the intent of any provision contained
in this Agreement.
SECTION 16.5 - NOTICE. Any notice, demand, offer or other written
instrument ("Notice") required or permitted to be given shall be in writing
signed by the party giving such Notice and shall be hand delivered or sent,
postage prepaid, by Certified or Registered Mail, Return Receipt Requested, to
the parties at the addresses as set forth in this Agreement. Any Notice to be
given to the estate of any deceased person shall be addressed to the personal
representative of such deceased person at his address or, if there be no
personal representative, to the estate of the deceased person at his address as
set forth in this Agreement. Any party shall have the right to change the place
to which such Notice shall be sent or delivered by similar notice sent in like
manner to all other parties hereto. The effective date of any offer, demand,
notice or instrument shall be the date of the mailing (if by mail) or
addressee's receipt (if hand delivered) of such offer, demand, notice or
instrument.
SECTION 16.6 - ARBITRATION. Any disagreement arising among the parties
as to the conduct of the Partnership business, or as to its termination, or as
to any other matter, cause or thing whatsoever not herein otherwise provided
for, shall be settled and conclusively determined by arbitration, and each of
the parties hereto seeking arbitration shall appoint one such arbitrator and
both of such arbitrators shall appoint a third arbitrator, and the decision of
two of such arbitrators, when made in writing, shall be conclusive upon the
parties hereto.
(a) The appointment of the arbitrators by the respective parties
hereto shall be made as follows: The party seeking arbitration hereunder shall
serve a notice in writing upon the other party hereto, setting forth the
disagreement or disagreements that he desires to be arbitrated, as well as the
name of the arbitrator; and, thereupon, the other party hereto, shall
30
within fifteen (15) days after the receipt of such notice serve upon the party
seeking arbitration a notice in writing stating the name of his arbitrator.
(b) The failure of a party to appoint an arbitrator shall
authorize the other party to make an appointment for the one so in default.
(c) If the two arbitrators appointed hereunder shall fail, within
fifteen (15) days after the second of the arbitrators shall have been appointed,
to select a third arbitrator then, and in any such event, any Judge of the
Superior Court of the State of Connecticut, upon application made by either
party for that purpose, shall be authorized and empowered to appoint such third
arbitrator.
SECTION 16.7 - COUNTERPARTS. This Agreement may be executed in one or
more copies and/or by the affixation of signature pages executed by the Partners
to one or more copies, each of which shall be deemed an original.
SECTION 16.8 - PARTIAL INVALIDITY. The invalidity of one or more of the
phrases, sentences, clauses, Sections or Articles contained in this Agreement
shall not affect the validity of the remaining portions so long as the material
purposes of this Agreement can be determined and effectuated.
SECTION 16.9 - COUNSEL. The Limited Partners expressly understand and
acknowledge that ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Ribicoff & ▇▇▇▇▇▇, is counsel to the
Partnership and to the General Partner, but does not represent the Limited
Partners in any matter connected with this Agreement.
SECTION 16.10 - APPLICABLE LAW. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Connecticut.
SECTION 16.11 - EXHIBITS. All exhibits referred to in this Agreement
shall be incorporated into this Agreement by such reference and shall be deemed
a part of this Agreement as if fully set forth in this Agreement.
SECTION 16.12 - GENDERS. Any reference to the masculine gender shall be
deemed to include the feminine and neuter genders, and vice versa, and any
reference to the singular shall include the plural, and vice versa, unless the
context otherwise requires.
31
Dated as of the 12th day of March, 1992.
DM ASSOCIATES LIMITED
PARTNERSHIP
GENERAL PARTNER
DM MANAGEMENT ASSOCIATES
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its Managing Partner
LIMITED PARTNERS
Class A Limited Partner
HNB INVESTMENT CORP.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Its: Vice President
Class B Limited Partners
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇▇▇▇▇ FAMILY
CHARITABLE FOUNDATION, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
its President
32
STATE OF CONNECTICUT )
) ss.
COUNTY OF )
Before me, the undersigned, this ____ day of ______________, 1992,
personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, known to me to be the Managing Partner of
DM MANAGEMENT ASSOCIATES, a partnership, and that he as such Managing Partner,
signer, and sealer of the foregoing instrument, acknowledged the execution of
the same to be his free act and deed individually and as such managing Partner,
and the free act and deed of said partnership.
In Witness Whereof, I hereunto set my hand.
/s/ Notary Public
------------------------------------
Notary Public
My Commission Expires: March 31, 1995
Commissioner of the Superior Court
STATE OF CONNECTICUT )
) ss.
COUNTY OF )
Before me, the undersigned, this ____ day of ___________________, 1992,
personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, known to me to be the VICE PRESIDENT, and
that he as such officer, signer and sealer of the foregoing instrument,
acknowledged the execution of the same to be his free act and deed individually
and as such officer, and the free act and deed of said corporation.
In Witness Whereof, I hereunto set my hand.
/s/ Notary Public
------------------------------------
Notary Public
My Commission Expires: March 31, 1995
Commissioner of the Superior Court
33
STATE OF CONNECTICUT )
) ss.
COUNTY OF )
Before me, the undersigned, this ____ day of __________________, 1992,
personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, known to me to be the person whose name
is subscribed to the foregoing instrument, and acknowledged that he executed the
same .for the purposes therein contained as his free act and deed.
In Witness Whereof, I hereunto set my hand.
/s/ Notary Public
------------------------------------
Notary Public
My Commission Expires: March 31, 1995
Commissioner of the Superior Court
STATE OF CONNECTICUT )
) ss.
COUNTY OF )
Before me, the undersigned, this ____ day of ___________________, 1992,
personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, known to me to be the PRESIDENT, and that
he as such officer, signer and sealer of the foregoing instrument, acknowledged
the execution of the same to be his free act and deed individually and as such
officer, and the free act and deed of said corporation.
In Witness Whereof, I hereunto set my hand.
/s/ Notary Public
------------------------------------
Notary Public
My Commission Expires: March 31, 1995
Commissioner of the Superior Court
34
EXHIBIT A
Capital Percentage
Partner Contribution Interest
------------ --------
General Partner
DM Management associates $ 700,000 4.32%
Class A Limited Partner:
HNB Investment Corp. 8,000,000 49.38%
Class B Limited Partners:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 7,400,000 45.68%
The ▇▇▇▇▇▇▇▇▇ Family Charitable
Foundation, Inc. 100,000 0.62%
---------- --------
TOTAL $16,200,000 100.00%
35
EXHIBIT F
---------
Agreement relating to the Joint Filing of this
Schedule 13D as required by Rule 13d-1(f)
36
EXHIBIT F
----------
The undersigned agree that a statement on Schedule 13D to be filed with
the Securities and Exchange Commission on March 13th, 1992, will be filed on
behalf of each of them as members of a group.
DM Associates Limited
Partnership
By DM Management Associates
DM Management Associates Its General Partner
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------- -------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its Managing General Partner Its Managing General Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇