EXHIBIT 3.23
AMENDMENT NO. 2 TO THE
LIMITED PARTNERSHIP AGREEMENT
OF
GENERAL CABLE TEXAS OPERATIONS L.P.
A DELAWARE LIMITED PARTNERSHIP
This Amendment No. 2 to the LIMITED PARTNERSHIP AGREEMENT ("Agreement")
of GENERAL CABLE TEXAS OPERATIONS L.P. (the "Partnership") dated December 1,
2001, is entered into as of December 20, 2002, by and among the Partnership;
General Cable Industries, Inc., a Delaware corporation and sole general partner
of the Partnership ("GCI"); and General Cable Management LLC, a Delaware limited
liability company and sole limited partner of the Partnership ("GCM").
1. The parties hereto acknowledge that on the date hereof, GCM
distributed to its sole member, GCI, a 98% Percentage Interest (as defined in
the Agreement) in the Partnership, thus resulting in GCI holding an aggregate
99% Percentage Interest as the sole general partner of the Partnership and GCM
retaining a 1% Percentage Interest as the sole limited partner. The parties
hereby modify Exhibit A to the Agreement as follows, to reflect this adjustment
of Percentage Interests in the Partnership as of the date hereof:
GENERAL PARTNER: General Cable Industries, Inc.
Partnership Interest: 99%
LIMITED PARTNER: General Cable Management LLC
Partnership Interest: 1%
2. Except as provided herein, the Agreement shall remain in full
force and effect.
GENERAL CABLE MANAGEMENT LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
GENERAL CABLE INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
GENERAL CABLE TEXAS OPERATIONS L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Secretary
GENERAL CABLE TEXAS OPERATIONS L.P.
LIMITED PARTNERSHIP AGREEMENT
This LIMITED PARTNERSHIP AGREEMENT made as of December 1, 2001 (the
"Agreement Date"), by and between GENERAL CABLE MANAGEMENT LLC, a Delaware
limited liability company (the "Limited Partner"), and GENERAL CABLE INDUSTRIES,
INC., a Delaware corporation (the "General Partner"). The General Partner and
the Limited Partner are hereinafter sometimes referred to collectively as the
"Partners".
ARTICLE I
DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided,
or unless the context otherwise requires, (i) the terms defined in this Section,
when capitalized, have the meanings specified in this Section, (ii) all
accounting terms not otherwise defined in this Section or elsewhere in this
Agreement have the meanings attributed to them under generally accepted
accounting principles as in effect on the Agreement Date, (iii) the word
"including" does not limit the words which precede it or follow it, and (iv) the
words "herein", "hereof", "hereto", "hereunder", "hereinafter", and words of
similar import, refer to this Agreement as a whole and not to any particular
Section or other subdivision.
1.1 "Act" means the Delaware Revised Uniform Limited Partnership
Act as set forth in Title 6, Chapter 17 of the Delaware Code, as from time to
time amended.
1.2 "Affiliate" means, with respect to a specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the specified
Person.
1.3 "Agreement" means this Limited Partnership Agreement as it may
be amended from time to time.
1.4 "Board of Directors" or "Board" means the Board of Directors
of the Partnership consisting of those persons who are appointed as directors
from time to time by the General Partner as provided in Section 3.1 hereof.
1.5 "Capital Account" means the Capital Account of each of the
Partners determined and adjusted from time to time in accordance with the
Regulations Section 1.704-1(b), as the same may be amended or revised. In the
event that the treatment called for in such Regulations is likely to have a
material effect on the amounts distributed to a Partner pursuant to Section 7.2
hereof, then the provisions of this Agreement shall control.
1.6 "Capital Contribution" means any contribution of cash or any
other asset contributed to the Partnership by a Partner.
1.7 "Cash Flow" means with respect to any Partnership Fiscal Year,
or portion thereof, all cash receipts of the Partnership from whatever source
derived (including from a disposition of assets of the Partnership) less all
disbursements of cash during the Fiscal Year (excluding distributions to the
Partners) including, without limitation, the payment of all operating expenses
and the establishment of all reserves as determined by the General Partner or
the Board of Directors.
1.8 "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
1.9 "Dissolution Event" means the happening of any of the
following events which shall cause a dissolution of the Partnership:
(a) The expiration of the term of the Partnership under
Section 2.8 hereof;
(b) The bankruptcy or the dissolution of a General
Partner, unless, within ninety (90) days after such event, the remaining
Partners unanimously agree in writing to continue the business of the
Partnership;
(c) The sale or other disposition of all or substantially
all of the assets of the Partnership and the collection of all of the net
proceeds therefrom;
(d) The bankruptcy of the Partnership; or
(e) A determination by the General Partner that the
Partnership should be dissolved.
1.10 "General Partner" means GENERAL CABLE INDUSTRIES, INC., and
such successors, assigns or additional general partners as may be admitted to
the Partnership, from time to time, pursuant to the terms of this Agreement.
1.11 "Interest" means the interest of each Partner in the
Partnership, including the rights granted to each Partner under this Agreement,
subject to the responsibilities of each Partner imposed under this Agreement.
1.12 "Limited Partner" means GENERAL CABLE MANAGEMENT LLC, and such
successors, assigns or additional limited partners as may be admitted to the
Partnership, from time to time, pursuant to the terms of this Agreement.
1.13 "Partnership" means the Partnership formed by and governed
pursuant to this Agreement as such Partnership may, from time to time, be
constituted and amended.
1.14 "Percentage Interests" means the relative Interest of the
Partners in the Partnership, which initially shall be a 1% Interest as a General
Partner for GENERAL CABLE INDUSTRIES, INC and a 99% Interest as a Limited
Partner for GENERAL CABLE MANAGEMENT LLC. The Percentage Interests shall be
adjusted to reflect any transfers of interests or admission of additional
partners as permitted in this Agreement.
1.15 "Person" means any individual, sole proprietorship, joint
venture, general partnership, limited partnership, limited liability
partnership, corporation (including any not-for-profit corporation), limited
liability company, business trust, association, joint-stock company,
unincorporated organization, cooperative, trust, estate, governmental body,
government entity or authority (including any branch, subdivision or agency
thereof), administrative or regulatory authority, or any other entity of any
kind or nature whatsoever.
1.16 "Regulations" means the Income Tax Regulations promulgated
under the Code, as such Regulations may be amended from time to time, including
corresponding provisions of succeeding regulations.
1.17 "Related Entity" means any of the General Partner or the
Limited Partner or any of their Affiliates.
1.18 "Secretary of State" means the Secretary of State of the State
of Delaware.
1.19 "State" means the State of Delaware.
ARTICLE II
THE PARTNERSHIP
2.1 Formation. On November 28th, 2001, the Partners formed the
Partnership and caused a Certificate of Limited Partnership for the Partnership
to be filed with the Secretary of State pursuant to the Act. The respective
rights and liabilities of the Partners and any other partners (general or
limited) hereafter admitted shall be governed by the Act and the terms and
conditions of this Agreement.
2.2 Continuation. The parties agree to continue the Partnership as
a limited partnership under the Act for the purposes and upon the terms and
conditions hereinafter set forth in this Agreement.
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2.3 Name. The business of the Partnership shall be conducted under
the name of "GENERAL CABLE TEXAS OPERATIONS L.P." or such other name or names as
the General Partner may hereafter designate by written notice to the Limited
Partner and the Secretary of State.
2.4 Principal Business Office and Registered Office. The principal
business office of the Partnership shall be ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, or at such other place as may be designated from time to time by the
Board of Directors. In addition, the Board of Directors may cause the
Partnership to establish such other offices and places of business within and
without the State as it may determine. The registered agent and registered
office of the Partnership shall be The Corporation Trust Company, 1209 Orange
Street, Wilmington, Delaware, or such other Person or at such other place as may
be designated from time to time by the Board of Directors.
2.5 Purpose.
(a) The purpose of the Partnership shall be to directly
and indirectly conduct business activities that further the legal and economic
interests of the Partners, whether or not for profit, provided such activities
are not now or hereinafter prohibited by the Act or by the law of the State or
of any jurisdiction in which the Partnership conducts business. Incident to such
purpose and as part of its business, the Partnership is authorized to do all
things necessary or appropriate to carry out the foregoing purpose.
(b) The Partnership shall be a partnership only for the
purpose specified hereinabove, and this Agreement shall not be deemed to create
a partnership among the Partners with respect to any activities whatsoever other
than the activities within the purpose specified immediately above.
(c) The credit and assets of the Partnership shall be
used solely for the benefit of the Partnership and shall not be used to further
the personal gain of any Partner.
2.6 Other Business and Activities. Except as otherwise expressly
provided in this Agreement, nothing in this Agreement shall be deemed to
restrict in any way the rights of any Partner, or any of its shareholders,
partners or Affiliates, to conduct any business or activity whatsoever, whether
or not such business or activity is competitive with the business or interests
of the Partnership, without any accountability to the Partnership or to any
other Partners.
2.7 Statutory Compliance.
(a) The Partnership shall exist under and be governed by,
and this Agreement shall be construed in accordance with, the applicable laws of
the State of Delaware, including the Act. The Partnership shall make all filings
and disclosures required by, and shall otherwise comply with all such laws. All
property, whether real or personal, tangible or intangible, owned by the
Partnership shall be deemed owned by the Partnership as an entity, in its name,
and no Partner shall have any ownership interest in such property in its
individual name or right.
(b) The Partners shall execute and file in the
appropriate records any assumed or fictitious name certificate or certificate
required by law to be filed in connection with the formation of, or conduct of
business by, the Partnership, and shall execute and file such other documents
and instruments as may be necessary or appropriate with respect to the formation
of, and conduct of business by, the Partnership.
2.8 Term. The term of the Partnership shall commence on the date
of this Agreement and will continue until the Partnership is dissolved pursuant
to Article XI hereof.
ARTICLE III
CONTROL AND MANAGEMENT
3.1 Board of Directors. Except as otherwise expressly provided in
this Agreement, the Partnership shall be managed by a Board of Directors
consisting of not less than two nor more than nine individuals appointed to
serve as directors from time to time by the General Partner. Each director
appointed by the General Partner shall
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continue to serve at the pleasure of the General Partner. Any director appointed
by the General Partner may be removed by the General Partner at any time. If any
director is removed, resigns, dies, becomes disabled or otherwise becomes unable
to serve for any reason, he or she shall be replaced by another individual
appointed by the General Partner. Notice of any removal or replacement of any
director shall be promptly given by the General Partner to all directors and to
the Limited Partner.
3.2 Meetings. The Board of Directors shall meet as frequently as
necessary to properly conduct the business of the Partnership and shall use its
best efforts to meet no less frequently than on an annual basis. All meetings
shall be held on such dates and times, and at such places, as determined by the
President upon at least one days prior written notice to all of the directors,
which notice may be waived in writing by any director at any time before or
after any such meeting. A quorum for all meetings of the Board shall consist of
a majority of directors then in office, and the acts of a majority of the
directors present and voting at a meeting at which a quorum is present shall be
the acts of the Board of Directors. One or more directors may participate in any
meeting of the Board, or any committee thereof, by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at the meeting. Any action by the Board of
Directors may be taken without a meeting if, prior or subsequent to the action,
a consent or consents thereto signed by a majority of the directors as of the
date the action was taken is filed with the Secretary.
3.3 Executive Committee and Other Committees. The Board of
Directors, by resolution adopted by a majority of the full Board, may designate
from among its members one or more committees, each of which shall be comprised
of one or more directors. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. The Executive Committee, if there be
one, shall have the authority, by unanimous vote at a meeting or by written
consent, to take any action within the authority of the Board of Directors that
the Executive Committee concludes, in its sole discretion, should be taken in
the best interests of the Partnership during any interim periods between
meetings of the Board. Any such action so taken by the Executive Committee shall
be deemed to have been taken by the Board of Directors.
3.4 Officers. The officers of the Partnership shall consist of a
President, oneor more Vice Presidents, a Secretary and a Treasurer, all as
determined by the Board of Directors. The officers shall be appointed from time
to time by the Board to serve for such terms as determined by the Board. Except
for the President, Secretary and Treasurer, the Board may refrain from filling
any offices at any time and from time to time. Any or all of the officers may
be, but need not be, directors of the Partnership. Except for the offices of
President and Secretary, any person may hold up to two offices at once. The
Board may also appoint assistant officers from time to time.
(a) The President shall be the chief executive officer of
the Partnership; shall preside at all meetings of the Board of Directors and all
meetings of Partners, and shall exercise and perform such other powers and
duties as may be prescribed by the Board; shall be responsible for carrying out
the general and active management of the business and affairs of the Partnership
under the direction of the Board of Directors; and shall see that all
resolutions of the Board are put into effect.
(b) The Vice President or, if there be more than one, the
Vice Presidents in the order, if any, established by the Board of Directors,
shall have such authority and perform such duties as may be determined by the
Board or the President.
(c) The Treasurer shall act under the direction of the
President. Subject to the direction of the President, the Treasurer shall have
custody of the Partnership funds and shall keep full and accurate accounts and
books of record for the Partnership.
(d) The Secretary shall act under the direction of the
President. Unless a designation to the contrary is made at a meeting, the
Secretary shall attend all meetings of the Board of Directors and shall record
and maintain the minutes and records of such meetings. The Secretary shall give,
or cause to be given, notice of all meetings of the Board as prescribed by the
President.
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3.5 Limited Partner. The Limited Partner, in its capacity as such,
shall not have a vote on any Partnership matter except as provided herein; shall
not participate in the management of the Partnership business and affairs in any
manner whatsoever except as provided herein; shall have all the powers, rights,
duties and protections of a limited partner as prescribed in the Act; and shall
not be liable for any debt, claim, demand, judgment, decree or other obligation
of any nature whatsoever of, against or incurred by the Partnership or any
Partner, creditor, employee or agent except to the extent set forth in the Act.
The General Partner shall use all reasonable means to assure that all persons,
firms, corporations and other entities having dealings with the Partnership, or
any Partner, employee or agent, shall be informed of the limited partnership
status of the Partnership.
3.6 General Partner.
(a) The General Partner shall have the sole and exclusive
right to manage the business of the Partnership, directly or through the Board
of Directors or the officers appointed by the Board, and is hereby authorized to
take any action of any kind and to do anything and everything it deems necessary
to manage the business of the Partnership. The General Partner shall have the
necessary powers to carry out the purposes, business and objectives of the
Partnership and shall possess and enjoy all the rights and powers of partners of
a partnership without limited partners, except as otherwise provided in this
Agreement or by applicable law.
(b) All of the Partnership's expenses shall be billed
directly to and be paid by the Partnership. All expenses incurred by the General
Partner in connection with the administration and operation of the Partnership
shall be charged to the Partnership.
(c) Except to the extent otherwise provided by applicable
law and in this Agreement, the General Partner, for and in the name and on
behalf of the Partnership, is hereby authorized: (i) to execute and deliver any
and all agreements, contracts, documents, certifications and instruments
necessary or convenient in connection with the management of the Partnership and
the operation of its business; (ii) to engage in all kinds of activity and to
perform and carry out all contracts of any kind necessary to, in connection with
or incidental to the accomplishment of the purpose of the Partnership as may be
lawfully carried on or performed by partnerships under applicable law; and (iii)
to cause the Partnership to borrow funds from any lending source, including
banks, other financial institutions and any Related Entity; (iv) to lend funds
or assets to any Related Entity; and (v) to permit confession of judgment
against the Partnership in connection with financing or otherwise.
(d) Without the consent of the Limited Partner, the
General Partner shall not have the authority: (i) to do any act in contravention
of this Agreement or the Certificate of Limited Partnership; (ii) to do any act
which would make it impossible to carry on the ordinary business of the
Partnership; and (iii) to knowingly perform any act which would subject any
Limited Partner to liability as a general partner in any jurisdiction.
(e) The General Partner shall: (i) take all action which
may be necessary or appropriate for the continuation of the Partnership's valid
existence as a limited partnership under the laws of the State; (ii) devote to
the Partnership such time as may be deemed necessary by the General Partner for
the proper performance of its duties hereunder; (iii) prepare or cause to be
prepared and shall file on or before the due date (or any extensions thereof)
all federal, state and local tax returns required to be filed by the
Partnership, and shall cause the Partnership to pay all taxes payable by the
Partnership; and (iv) perform all duties imposed on a general partner by
Sections 6221 through 6232 of the Code as "tax matters partner" of the
Partnership, including the following: (A) the power to conduct all audits and
other administrative proceedings with respect to Partnership tax items; (B) the
power to extend the statute of limitations for all Partners with respect to
Partnership tax items; and (C) the power to file a petition with an appropriate
federal court for review of a final partnership administrative adjustment.
(f) The General Partner shall obtain, and keep in force
during the term of the Partnership, insurance in favor of the Partnership with
such insurers and in such amounts as the General Partner shall deem advisable.
(g) The General Partner may, on behalf of the
Partnership, employ, engage, retain or deal with any Persons to act as managing
agents, leasing agents, brokers, accountants or lawyers, or in such other
capacities as the General Partner may determine, and the Partnership shall
reimburse the General Partner for all direct expenses incurred thereby.
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(h) All decisions made by the General Partner in
accordance with the powers granted hereunder shall be binding upon the
Partnership and the Partners without the need of any further approval or
ratification.
(i) The General Partner shall not be liable, responsible
or accountable in damages or otherwise to the Partnership or the Limited Partner
for any act or omission by the General Partner performed in good faith pursuant
to the authority granted to the General Partner by this Agreement, or in
accordance with its provisions, and in a manner reasonably believed by the
General Partner to be within the scope of the authority granted the General
Partner and in the best interest of the Partnership, provided that such act or
omission did not constitute fraud, misconduct, bad faith or gross negligence.
The Partnership shall indemnify and hold harmless the General Partner against
any liability, loss, damage, cost or expense (including attorneys' fees)
incurred by the General Partner on behalf of the Partnership or in furtherance
of the Partnership's interest without relieving the General Partner of liability
for fraud, misconduct, bad faith or gross negligence. In addition, to the full
extent permitted by applicable law, the Partnership shall indemnify and save
harmless the General Partner from, and reimburse the General Partner for, all
judgments, penalties, including excise and similar taxes, fines, settlements and
reasonable expenses, if the General Partner was, is or is threatened to be a
named defendant or respondent in a proceeding because the Person is or was a
General Partner. The foregoing shall, without limitation, be deemed to make
mandatory the indemnification permitted under the Act and to authorize advance
payment of expenses to the full extent permitted by applicable law. These
indemnification rights are in addition to any other rights the General Partner
may have, including, but not, limited to, rights against third parties.
(j) The Partnership will reimburse the General Partner
from time to time for, or the Partnership will pay directly, all out-of-pocket
costs relating to the organization and administration of the Partnership and in
connection with the operation of the business of the Partnership, including the
actual cost of travel expenses.
(k) Once decisions are made by the General Partner, the
Chief Executive Officer of the General Partner, the President or any Vice
President of the General Partner and the Treasurer or the Secretary of the
General Partner may jointly execute agreements, instruments or documents or
jointly take actions on the General Partner's behalf
3.7 Compensation and Reimbursement of the General Partner.
(a) Except as provided in this Section 3.7 or elsewhere
in this Agreement, the General Partner shall not be compensated for its services
as General Partner to the Partnership.
(b) The General Partner shall be reimbursed for all
expenses, disbursements and advances incurred or made in connection with the
organization of the Partnership and the qualification of the Partnership to do
business in any state.
(c) The General Partner shall be reimbursed on a periodic
basis, as determined by the General Partner, for all direct expenses it incurs
or makes on behalf of the Partnership, including amounts paid to any Person to
provide goods or services to the Partnership.
3.8 General Partner Net Worth. The General Partner covenants and
agrees that so long as it is the General Partner of the Partnership, it will use
all reasonable efforts to maintain a net worth (exclusive of its interests in,
or claims against, the Partnership) of an amount required by the Code and
Regulations, provided that neither the General Partner nor any other Partner
shall have any obligation to contribute assets to the Partnership after the
Agreement Date. The General Partner covenants and agrees that it will use all
reasonable efforts to establish and maintain the classification of the
Partnership as a "partnership" for federal income tax purposes and not as an
"association" taxable as a corporation.
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ARTICLE IV
ACCOUNTING RECORDS
4.1 Tax Elections. The Partnership shall make all tax elections
which it is required or permitted to make under the Code in accordance with the
advices and recommendations made by the Partnership's accountants to the Board
of Directors.
4.2 Tax Returns. Each tax return and other statement to be filed
by the Partnership with the Internal Revenue Service or any other taxing
authority, shall be prepared by the Partnership's accountants and copies of each
such return and statement shall be made available to the Partners.
4.3 Books. Proper books of account shall be kept for the
Partnership, and entries shall be made therein of all monies expended and
received by the Partnership as well as all other matters relating to the
Partnership usually or properly entered in books of account. The Partnership's
books and records shall be kept in accordance with generally accepted accounting
practices consistently applied, and may be kept on a cash or accrual basis as
the General Partner may determine. Such books and all papers, correspondence and
other instruments relating or belonging to the Partnership shall be kept at the
principal office of the Partnership or at such other location or locations as
may be determined by the General Partner, and each Partner shall have the right
to examine and inspect the books, records, accounts and other papers of the
Partnership at any reasonable time during normal business hours.
4.4 Fiscal Year. The Fiscal Year of the Partnership shall end on
the 31st day of December of each year. As used in this Agreement, a Fiscal Year
shall include any partial Fiscal Year at the beginning and ending of the
Partnership.
4.5 Partnership Funds. Except as may otherwise be determined by
the General Partner, all funds of the Partnership shall be kept in segregated
accounts or investments in the name of the Partnership and shall not be
commingled with any other funds other than those of one or more Related Entities
where the purpose of such commingling is to increase the investment income of
the Partnership. The establishment of, and all withdrawals from, bank accounts
or other depositary accounts shall be made upon the signatures of those officers
of the Partnership and other persons designated from time to time by the General
Partner as authorized signatories.
ARTICLE V
CAPITAL ACCOUNTS AND CAPITAL CONTRIBUTIONS
5.1 Capital Accounts.
(a) The Partnership shall maintain a Capital Account for
each Partner which shall be increased by each such Partner's capital
contributions and distributive share of Partnership income and shall be
decreased by each such Partner's withdrawals of capital and distributive share
of Partnership losses. No interest shall be paid on any capital contributed to
the Partnership.
(b) The Capital Account of any Partner shall be
appropriately adjusted to reflect its entry into or withdrawal from the
Partnership or its acquisition of the Interest of any Partner.
(c) Any loans by a Partner to the Partnership shall not
be considered Capital Contributions, and shall not increase the Capital Account
of the lending Partner. The terms and conditions of any loans by a Partner to
the Partnership shall be determined by the Board of Directors.
(d) No Partner shall have the right to withdraw or reduce
its contribution to the capital of the Partnership except as specifically
provided in this Agreement or otherwise by law.
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5.2 Initial Capital Contributions. As of the Agreement Date, the
Partners have each contributed an amount to the capital of the Partnership as
their respective capital contributions as indicated on Exhibit "A", and they
have interests in the Partnership as indicated on Exhibit "A".
5.3 Additional Capital Contributions. No Partner shall be required
or permitted to make any additional capital contributions to the Partnership
without the unanimous prior written consent of all Partners.
ARTICLE VI
ALLOCATION OF PROFIT AND LOSSES; TAX ALLOCATIONS
6.1 Profits and Losses from Operations. The Profits and Losses
incurred by the Partnership during each Fiscal Year, other than from a
Dissolution Event, shall be credited or charged on a pro rata basis, as the case
may be, at the close of such Fiscal Year (or on such earlier date(s) as there is
an adjustment of the Percentage Interests of the Partners) to the Capital
Accounts of the Partners in accordance with the Percentage Interests of the
Partners.
6.2 Profits and Losses from Dissolution Events. Profits and Losses
resulting from Dissolution Events shall be allocated to the Partners so as to
produce positive Capital Account balances for the Partners which will result in
the assets available for distribution from such Dissolution Event pursuant to
Section 7.2 hereof being distributed to the Partners pro rata in accordance with
the Percentage Interests of the Partners.
6.3 Tax Allocation of Partner's Distributive Share.
Notwithstanding anything to the contrary in this Agreement, any allocation of
income, gain, loss, deduction and credit (or item thereof) with respect to the
Partnership shall be made on a basis consistent with Section 704 of the Code,
and the Regulations applicable with respect thereto.
ARTICLE VII
CASH DISTRIBUTIONS
7.1 Distribution of Cash Flow. Cash Flow, other than the proceeds
attributable to a Dissolution Event, and other than such reserves as may be
established from time to time by the General Partner or the Board of Directors
or by the officers of the Partnership acting in accordance with directives or
policies or practices established from time to time by the General Partner or
the Board of Directors, shall be distributed to the Partners pro rata in
accordance with the Percentage Interests of the Partners. Distributions of Cash
Flow to the Partners shall be made annually or at such shorter intervals as the
Board of Directors may decide.
7.2 Application of Proceeds of Dissolution Event.
(a) In the event of a sale or other disposition of all or
substantially all the assets of the Partnership and/or the termination and
winding up of the Partnership pursuant to a Dissolution Event, the assets of the
Partnership, after payment of all debts and liabilities of the Partnership and
the expenses of liquidation, and the establishment of any necessary or required
reserves shall be distributed to the Partners in accordance with the positive
balances in their respective Capital Accounts, after such Capital Accounts have
been adjusted pursuant to Article VI hereof to reflect the profits and losses
realized or incurred on the sales or disposition of the assets of the
Partnership.
(b) For purposes of determining the Capital Accounts of
the Partners under this Section 7.2, if any of the assets of the Partnership are
to be distributed in-kind, the Gross Asset Value of each such asset shall be
determined by the General Partner as of the time of such distribution (or at
such other date reasonably close to the date of such distribution as the General
Partner shall determine). There shall be allocated among the Partners, in
accordance with Article VI hereof, the amount of Profits and Losses, if any,
which would have been realized by the Partnership if each such asset had been
sold by the Partnership for a price equal to its respective Gross Asset Value as
so determined. If the General Partner are unable to agree upon the Gross Asset
Value of such assets, such Gross
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Asset Value shall be determined by a qualified independent appraiser selected by
the General Partner, and such determination shall be binding upon all of the
Partners.
ARTICLE VIII
TRANSFERABILITY OF PARTNERSHIP INTERESTS
8.1 General Restrictions on Transfer. Except with the prior
written consent of all Partners (which consent may be given or withheld in each
Partner's sole discretion) and except as and to the extent expressly permitted
in this Article VII, no Partner may sell, convey, transfer, syndicate, assign,
mortgage, pledge, hypothecate or otherwise encumber in any way (hereinafter
referred to as a "transfer") all or any portion of its Interest, or withdraw or
retire from the Partnership, and any such attempted transfer, withdrawal or
retirement not permitted hereunder shall be null and void. Further, no Partner
shall sell its interest to a third party whose status as a partner will cause
the Partnership's federal or state licenses to be revoked or not to be renewed
and/or who is a competitor of the Partnership, or any of the Partners.
8.2 Additional Partners. Additional Partners may be admitted to
the Partnership only upon the written consent of all Partners, except as
otherwise provided in this Article VIII.
8.3 First Refusal and Tag-Along Rights.
(a) If a Partner receives a bona fide written offer from
a third party whose status as a partner will not cause the Partnership's federal
and state licenses to be revoked or not to be renewed and who is not a
competitor of the Partnership, or any of the Partners, to purchase all or any
portion of such Interest, and if such Partner wishes to sell its Interest to the
third party pursuant to such offer, the selling Partner shall promptly give
written notice of such proposed transfer to the Partnership and to the other
Partners. Such notice shall contain all material terms and conditions of the
written offer, and the name and address of the third party, and shall be
accompanied by an offer to sell such Interest of the selling Partner to the
Partnership and the other Partners upon the same terms and conditions contained
in the written offer tendered by the third party.
(b) The Partnership shall have the first right to
purchase, at the price and upon the same terms and conditions contained in the
written offer, all, and not less than all, of the Interest of the selling
Partner being so offered. This election to purchase shall be exercised by
delivery of written notice of such election to the selling Partner and to the
Partnership within thirty (30) days after receipt of the selling Partner's
notice and offer. If the Partnership does not elect to purchase the Interest of
the selling Partner, the other Partner(s) shall thereafter have the right to
purchase, at the price and upon the same terms and conditions contained in the
written offer, all, and not less than all, of the Interest of the selling
Partner being so offered. The other Partner's (or Partners') election to
purchase shall be exercised by delivery of written notice of such election to
the selling Partner within sixty (60) days after receipt of the selling
Partner's notice and offer. If more than one Partner exercises the right to
purchase the Interest of the Selling Partner, they shall do so on a pro rata
basis according to their Percentage Interests, unless the purchasing Partners
otherwise agree among themselves.
(c) If neither the Partnership nor the other Partners
receiving the written offer make a timely election to purchase the Interest of
the selling Partner, the selling Partner shall have the right to sell all, and
not less than all, of its Interest being so offered to the third party on the
terms and conditions as set forth in such written offer by sending a written
notice thereof to the third party; provided however, (i) the sale by the selling
Partner must be completed within ninety (90) days of such written notification
to the third party; and (ii) the selling Partner must timely notify the third
party and all other Partners of the right of all other Partners to offer to sell
all or any portion of their Interests in the Partnership to such third party on
the same terms and conditions, with the purchase price adjusted, however, for
any differences in the Percentage Interests of the other Partners. Any other
Partner(s) wishing to transfer all or any portion of its Interest pursuant to
such "tag-along" right must send, within fifteen (15) days of such notification,
a written election to the third party to sell all or any portion of its Interest
to the third party. At least thirty (30) days prior to the closing date on the
sale by the selling Partner, the third party must respond to the written
elections(s) of the other Partner(s) to purchase all, and not less than all, of
its Interest being so offered at an equivalent price and upon equivalent terms
and conditions contained in the written offer tendered by the third party to the
selling Partner, taking into account any differences in the Percentage Interests
of the Partners. Such
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other Partner(s) shall then sell the Interest(s) being so offered to the third
party on the same closing date as the selling Partner sells its Interest to the
third party.
(d) If a sale is concluded to a third party purchaser,
but such third party purchaser acquires less than 100% of the interests in the
Partnership from all of the Partners, the third party purchaser must agree to be
bound by all of the terms and conditions of this Agreement (including this
Article VII) with the same force and effect as if the third party purchaser had
been an original party to the Agreement.
(e) In the event of any change in the identity of the
third party purchaser, or in the price, terms and conditions of the written
offer, or in the event the sale to the third party purchaser is not completed in
the manner and within the time provided in this Section 8.3, the selling Partner
may not sell or otherwise transfer its Interest unless and until a new offering
notice shall be given by the selling Partner to the Partnership and the other
Partners, and the other requirements of this Section 8.3 shall have been
complied with.
ARTICLE IX
MANDATORY OFFERS OF ENTIRE PARTNERSHIP INTERESTS
9.1 Triggering Events. The occurrence of any of the following
events constitutes an offer by the Partner to whom the event relates ("Affected
Partner") to sell its Interest to the Partnership, in accordance with the
procedures set forth in this Article IX:
(a) The making of an assignment for the benefit of
creditors, which assignment includes the Partner's Interest;
(b) Bankruptcy, reorganization, arrangement or
liquidation proceedings, state or federal, are commenced by or against a Partner
and a trustee, receiver, conservator or other judicial representative, similar
or dissimilar, is appointed for a Partner or a Partner's Interest (whether alone
or with other assets) and such appointment is not terminated within ninety (90)
days;
(c) Breach of any provision of this Agreement, which
breach causes damage, loss or liability to the Partnership or the other Partners
and such breach is not cured and such damage, loss or liability is not
indemnified within ninety (90) days after receipt of notice of such breach;
(d) Attachment of, execution against, levy upon, or other
seizure of a Partner's Interest (other than an attachment which is solely for
jurisdictional purposes) unless (and for only so long as) counsel for the
Partnership determines that the Partner is in good faith contesting such
attachment, execution, levy or other seizure; or
(e) A Partner attempts to Transfer its Interest in
violation of this Agreement.
9.2 Procedure.
(a) Within fifteen (15) days after the occurrence of any
of the events set forth in Section 9.1 above, the Affected Partner shall and any
other Partners must notify the Partnership and the other Partners of such
occurrence; failure to give such notice (the "Offer Notice") shall not prevent
the Partnership and the other Partners from exercising their rights granted
pursuant to this Article IX.
(b) Upon the occurrence of any event set forth in Section
9.1, first the other Partner(s) and then the Partnership, until twenty (20) days
after receipt of the notice required pursuant to this Section 9.2, may purchase
all (but not less than all) of the offered Interest from the Affected Partner at
the price and on the other terms and conditions set forth in this Article IX
(collectively the "Agreement Terms"). The other Partner(s)' option must be
exercised within ten (10) days of such notice, and the Partnership's option must
be exercised within twenty (20) days of such notice. For purposes of this
Article IX, the offered Interests in the case of a deceased Partner shall be
that part of his or her Interest which has not been properly transferred
pursuant to Article VIII.
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(c) The Affected Partner shall not be obligated to sell
his Interest unless all of such Interest shall be purchased. If the offered
Interest is not purchased, then such Interest shall remain subject to this
Agreement and any holder thereof shall be legally bound hereby and be a Partner
for all purposes hereunder.
(d) The purchase price for the offered Interest shall be
payable in cash and shall be equal to the then "Partnership Value" multiplied by
the Affected Partner's Interest on the date of purchase ("Purchase Price"). For
the purposes of this Section 9.2, the Partnership Value shall be determined by
an appraisal to be performed by an independent and reputable appraiser to be
chosen by the Partners other than the Affected Partner. The Partnership shall
bear the cost and expense of any such appraisal.
(e) Upon the purchase of an Interest pursuant to Articles
VIII or IX hereof any indebtedness then owing by a selling Partner to the
purchaser (whether the Partnership or the other Partner(s)) shall, at the
election of such purchaser, become immediately due and payable and shall be
deducted from and set-off against the unpaid balance of the Purchase Price plus
accrued interest.
ARTICLE X
WITHDRAWAL OR REMOVAL OF A GENERAL PARTNER
ADMISSION OF ADDITIONAL OR SUCCESSOR GENERAL PARTNER(S)
10.1 Withdrawal. If the General Partner shall voluntarily or
involuntarily for any reason (including Bankruptcy) withdraw from the
Partnership or cease to be General Partner, it shall be and remain liable for
all obligations and liabilities incurred as General Partner prior to the time
such withdrawal or cessation shall become effective, but shall be free of any
obligation or liability incurred on account of the activities of the Partnership
from and after the time such withdrawal or cessations shall become effective.
10.2 Removal. The General Partner may be removed for good cause
shown by a majority in interest of the Limited Partners. "Good Cause," for the
purposes of this Section 10.2, shall not include a reasonable mistake of
judgment made in good faith and based upon the facts as they were known at the
time the decision was made, but shall include, without limitation, gross
negligence or recklessness, acts taken in willful disregard of the best
interests of the Partnership or violation of any provision of this Agreement.
10.3 Additional or Successor General Partner. Upon receipt of the
written approval of the existing General Partner and a majority in interest of
the Limited Partners based upon their percentage Partnership Interest, the
General Partner may designate one or more Persons to be an additional General
Partner, with such participation in the General Partner's Interest as the
General Partner and such additional General Partner may agree upon; provided
that the Interest of the other Partners shall not be affected thereby. The
General Partner may withdraw or be removed from the Partnership as specified in
Sections 10.1 and 10.2, respectively. If such General Partner is not then the
sole General Partner, the Partnership shall continue only upon the approval of
the remaining General Partner(s) and a majority in interest of the Limited
Partners. If the General Partner is the sole General Partner, the Partnership
shall only continue upon the vote of a majority in interest of the Limited
Partners to do so and the designation of a successor General Partner by the
written consent of a majority in interest of the Limited Partners. Should the
General Partner desire to withdraw from the Partnership and transfer its
Partnership Interest to any Person or Person(s), the General Partner's Interest
shall immediately be converted into a Limited Partnership Interest in the
Partnership upon the transfer to such Person unless a majority in interest of
the Limited Partners consent.
ARTICLE XI
DISSOLUTION AND LIQUIDATION
11.1 Dissolution Events.
(a) Dissolution of the Partnership shall be effective the
day on which a Dissolution Event occurs, but the Partnership shall not terminate
until all of the assets of the Partnership shall have been distributed as
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provided in this Agreement. Notwithstanding the dissolution of the Partnership
prior to the termination of the Partnership, as aforesaid, the business of the
Partnership and the affairs of the Partners as such shall continue to be
governed by this Agreement.
(b) Notwithstanding anything in this Agreement to the
contrary, upon a sale of all or substantially all of the assets of the
Partnership where all or any portion of the consideration payable to the
Partnership is to be received by the Partnership more than ninety (90) days
after the date on which such sale occurs, the Partnership shall continue solely
for purposes of collecting the deferred payments and making distributions to the
Partners.
11.2 Liquidation.
(a) As soon as possible after the Dissolution Event, a
full account of the assets and liabilities of the Partnership shall be taken,
and a statement shall be prepared by the Partnership's accountants setting forth
the assets and liabilities of the Partnership. A copy of such statement shall be
furnished to each of the Partners within ninety (90) days after such Dissolution
Event. Those assets of the Partnership that can be liquidated without undue loss
shall be liquidated as promptly as possible, and the expenses of the liquidation
and the debts of the Partnership shall be paid. The net proceeds of the
liquidation and any assets to be distributed to the Partners in-kind shall be
distributed in accordance with Section 7.2 hereof. Any assets of the Partnership
that are not liquidated and are not to be distributed in-kind shall be retained
by the Partnership and the Partnership, shall continue to preserve such assets
until such time as it is prudent to liquidate or distribute in-kind such assets.
(b) Any reserves shall be established or continued which
the Board of Directors deems reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Partnership. Such reserves shall be
held by the Partnership for the payment of any of the aforementioned
contingencies, and at the expiration of such period as the Board of Directors
shall deem advisable, the Partnership shall distribute the balance thereafter
remaining to the Partners in accordance with Section 7.2 hereof.
(c) Upon dissolution and liquidation of the Partnership,
each Partner shall look solely to the assets of the Partnership for the return
of and on its investment, and if the Partnership's assets remaining after
payment and discharge of debts and liabilities of the Partnership, including any
debts and liabilities owed, is not sufficient to satisfy the rights of a
Partner, it shall have no recourse or further right or claim against the
Partnership, or any other Partner, except to the extent that a Partner may have
a right of contribution (or similar right) against another Partner under the
laws of the State.
ARTICLE XII
AMENDMENTS TO THE AGREEMENT
12.1 By Majority of Interests. Amendments may be made to this
Agreement from time to time by a majority of the holders of the Partnership
Interests; provided, however, that without the written consent of the Partners
to be adversely affected thereby, this Agreement may not be amended so as to:
(a) Convert a Limited Partner's Interest into a General
Partner's Interest;
(b) Modify the tax liability of a Limited Partner;
(c) Alter the interest of a Partner in profits and
losses; and
(d) Reduce or limit the powers of the General Partner.
12.2 By General Partner. In addition to any other amendments
authorized herein, amendments may be made to this Agreement from time to time by
the General Partner without the consent of the Limited Partner(s):
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(a) to add to the representations, duties or obligations
of the General Partner, or surrender any right or power granted to the General
Partner herein for the benefit of the Limited Partner(s); or
(b) to cure any ambiguity, to correct or supplement any
provision which may be inconsistent with any other provision herein or to make
any other provisions with respect to matters or questions arising under this
Agreement which will not be inconsistent with the provisions of this Agreement.
ARTICLE XIII
ADDITIONAL PROVISIONS
13.1 Right to Partition. The Partners agree that any property or
properties now or hereafter owned by the Partnership are not and will not be
suitable for partition. Accordingly, each of the Partners hereby irrevocably
waives any and all rights that it may have to maintain any action for partition
of any of the Partnership property.
13.2 Enforceability of Agreement. Except as otherwise expressly
provided in this Agreement, all provisions of this Agreement shall bind,
benefit, and be enforceable by or against, the heirs, successors,
administrators, executors, personal representatives and assigns of the Partners.
None of the provisions of this Agreement shall be for the benefit of or be
enforceable by any creditor of the Partnership or of any Partner.
13.3 Headings and Captions. Any headings or captions preceding the
text of any of the Articles, Sections or Subsections of this Agreement are
inserted for convenience of reference only, and shall in no way be held or
construed to define, limit, describe, explain, modify, amplify, or add to the
interpretation, construction or meaning of any provision of, or scope or intent
of, this Agreement nor in any way affect this Agreement.
13.4 Context of Terms. All words used in this Agreement shall be
construed to be of such number and gender as the context requires or permits.
When from the context if appears appropriate, each term stated either in the
singular or the plural shall include the singular and the plural and the
pronouns stated either in the masculine, the feminine or the neuter shall
include the masculine, feminine and the neuter.
13.5 Governing Law. This Agreement and the rights of the parties
hereunder shall be governed and construed in accordance with the domestic laws
of the State without giving effect to any choice or conflict of law provision or
rule, whether of the State or of any other jurisdiction, that would cause the
application of the laws of any jurisdiction other than the State.
13.6 Severability. In the event any one or more of the provisions
of this Agreement or the application of such provision to any Person or
circumstance shall be held to be invalid, illegal or unenforceable the remainder
of this Agreement or the application of such provision to Persons or
circumstances other than those to which it is held to be invalid, illegal or
unenforceable shall not be affected thereby.
13.7 Rights and Remedies. All rights and remedies provided herein
are cumulative and are in addition to and not in lieu of any other rights and
remedies now or hereafter existing at law, in equity or otherwise, except as
otherwise limited herein, and may be enforced concurrently or from time to time.
Without limiting the generality of the foregoing, the Partners agree that in
addition to all other rights and remedies available at law or in equity, each of
the Partners shall be entitled to obtain specific performance of the obligations
of each other under this Agreement and immediate injunctive relief and that in
the event any action or proceeding is brought in equity to enforce the same, no
Partner shall urge as a defense that there is an adequate remedy at law.
13.8 Waivers. Except as otherwise expressly provided herein, no
failure to exercise, delay in exercising, or single or partial exercise of any
right, power or remedy by any Partner, and no course of dealing between the
Partners, shall constitute a waiver of any such right, power or remedy. A waiver
by any of the Partners of any of the covenants, conditions, or agreements to be
performed by any of the other Partners or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant, condition, or agreement herein contained. No waiver shall be valid
unless in writing and signed by the Partner against which such waiver is sought
to be enforced.
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13.9 Merger Clause. This Agreement, including any Exhibits and
documents referred to in this Agreement or attached hereto, all of which are
incorporated herein, contains the entire and exclusive statement of the
agreement among the Partners with respect to the subject matter hereof and
supersedes all prior agreements, and all prior understandings, writings,
proposals, negotiations, representations or any other communications, oral or
written, of any of the Partners with respect to the subject matter hereof which
are not fully expressed herein.
13.10 Execution of Agreement. This Agreement may be executed in
several counterparts, each of which shall be deemed an original and all of which
shall constitute one and the same instrument. In addition, this Agreement may
contain more than one counterpart of the signature page and this Agreement may
be executed by the affixing of the signatures of each of the Partners to one of
such counterpart signature pages; all such counterpart signatures shall be read
as though and shall have the same force and effect as though all the signatories
had signed a single signature page.
IN WITNESS WHEREOF, and intending to be legally bound, the Partners
have executed this Agreement as of the Agreement Date.
GENERAL PARTNER:
GENERAL CABLE INDUSTRIES, INC.
Attest: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Its: Executive Vice President
LIMITED PARTNER:
GENERAL CABLE MANAGEMENT LLC
Attest: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------
Its: Assistant Secretary
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EXHIBIT "A"
Capital Contributions
NAME CAPITAL CONTRIBUTION PERCENTAGE INTEREST
LIMITED PARTNER:
GENERAL CABLE
MANAGEMENT LLC $700,000 99%
GENERAL PARTNER:
GENERAL CABLE
INDUSTRIES, INC. $ 7,070 1%