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EXHIBIT 3.4
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TRANSWESTERN PUBLISHING COMPANY, L.P.
_______________________________________
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
Dated as of October 1, 1997
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS AGREEMENT OF LIMITED PARTNERSHIP
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR
UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT BE SOLD,
ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE
REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE
WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
________________________________________________________________________________
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
ORGANIZATIONAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Organization of Partnership . . . . . . . . . . . . . . . . . . . . . 8
2.2 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4 Principal Office; Registered Office . . . . . . . . . . . . . . . . . 8
2.5 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.1 General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2 Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.3 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.4 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.5 No Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.6 Loans From Partners . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.7 Issuances of Units . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
DISTRIBUTIONS AND ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Allocations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3 Special Allocations . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.4 Tax Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.5 Curative Allocations . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.6 Indemnification and Reimbursement for Payments on Behalf of a Partner . 15
ARTICLE V
MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1 Authority of General Partner . . . . . . . . . . . . . . . . . . . . . 15
5.2 Actions Requiring Approval of Limited Partners . . . . . . . . . . . . 17
5.3 Partnership Qualifications and Filings . . . . . . . . . . . . . . . . 17
5.4 Reliance by Third Parties . . . . . . . . . . . . . . . . . . . . . . 18
5.5 Compensation and Reimbursement of General Partner . . . . . . . . . . 18
5.6 Outside Activities . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.7 Dealings With the General Partner . . . . . . . . . . . . . . . . . . 19
5.8 Resolution of Conflicts of Interest . . . . . . . . . . . . . . . . . 19
5.9 Purchase of Units . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.10 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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5.11 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS . . . . . . . . . . . . . . . . . . . . 21
6.1 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . 21
6.2 Management of Business . . . . . . . . . . . . . . . . . . . . . . . . 21
6.3 No Right of Partition . . . . . . . . . . . . . . . . . . . . . . . . 21
6.4 Outside Activities . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.5 Representations and Warranties of Partners . . . . . . . . . . . . . . 21
ARTICLE VII
BOOKS, RECORDS, ACCOUNTING AND REPORTS . . . . . . . . . . . . . . . . . . . . . . 22
7.1 Records and Accounting . . . . . . . . . . . . . . . . . . . . . . . . 22
7.2 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.3 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.4 Transmission of Communications . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VIII
TAX MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.1 Preparation of Tax Returns . . . . . . . . . . . . . . . . . . . . . . 23
8.2 Tax Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.3 Tax Controversies . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IX
VOTING; AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.1 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE X
TRANSFER OF PARTNERSHIP INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . 25
10.1 TRANSFER IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE XI
ADMISSION OF PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.1 Substituted Limited Partners . . . . . . . . . . . . . . . . . . . . . 25
11.2 Additional Limited Partners . . . . . . . . . . . . . . . . . . . . . 25
11.3 Admission of a Successor General Partner . . . . . . . . . . . . . . . 25
11.4 Representations of New Partners . . . . . . . . . . . . . . . . . . . 26
ARTICLE XII
WITHDRAWAL OR REMOVAL OF PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . 26
12.1 Withdrawal of General Partner . . . . . . . . . . . . . . . . . . . . 26
12.2 Election of Successor General Partner . . . . . . . . . . . . . . . . 26
12.3 Purchase of General Partnership Interest . . . . . . . . . . . . . . . 27
12.4 Former General Partner's Liabilities . . . . . . . . . . . . . . . . . 27
12.5 Withdrawal of Limited Partners . . . . . . . . . . . . . . . . . . . . 27
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ARTICLE XIII
DISSOLUTION AND LIQUIDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
13.1 Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
13.2 Continuation After Dissolution . . . . . . . . . . . . . . . . . . . . 28
13.3 Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
13.4 Distribution in Kind . . . . . . . . . . . . . . . . . . . . . . . . . 29
13.5 Cancellation of Certificate of Limited Partnership . . . . . . . . . . 30
13.6 Reasonable Time for Winding Up . . . . . . . . . . . . . . . . . . . . 30
13.7 Return of Capital . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XIV
VALUATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
14.1 Valuation in General . . . . . . . . . . . . . . . . . . . . . . . . . 30
14.2 Appraisals for Purchase of
General Partner's General Partnership Interest . . . . . . . . . . . . 30
ARTICLE XV
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
15.1 Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . 31
15.2 Title to Partnership Assets . . . . . . . . . . . . . . . . . . . . . 32
15.3 Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
15.4 Conversion to Corporate Form . . . . . . . . . . . . . . . . . . . . . 32
15.5 Addresses and Notices . . . . . . . . . . . . . . . . . . . . . . . . 33
15.6 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.7 Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.8 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.10 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.11 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . 34
15.12 Number and Gender . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.13 Further Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.14 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.15 Including . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.16 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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TRANSWESTERN PUBLISHING COMPANY, L.P.
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
This THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP, dated as of October 1, 1997 is entered into by and between
TransWestern Communications Company, Inc., as General Partner, the Limited
Partners listed on Schedule I hereto and any and all Persons who hereafter
become Limited Partners.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall be applied to the terms used
in this Agreement for all purposes, unless otherwise clearly indicated to the
contrary.
"ADDITIONAL LIMITED PARTNER" means a Person admitted to the
Partnership as a Limited Partner pursuant to Section 11.2.
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means with respect to any
Capital Account as of the end of any Taxable Year, the amount by which the
balance in such Capital Account is less than zero. For this purpose, such
Person's Capital Account balance shall be
(i) reduced for any items described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5), and (6), and
(ii) increased for any amount such Person is treated as being
obligated to contribute to the Partnership pursuant to
Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (relating to
partner liabilities to a partnership) or 1.704-2(g)(1) and
1.704-2(i) (relating to minimum gain).
"AFFILIATE" means any Person that directly or indirectly
controls, is controlled by, or is under common control with the Person in
question. "CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise. The
Partnership shall not be deemed an Affiliate of the General Partner for any
purpose hereunder.
"AGREEMENT" means this Third Amended and Restated Agreement of
Limited Partnership, as it may be further amended, supplemented or restated
from time to time.
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"BOOK VALUE" means, with respect to any Partnership property,
the Partnership's adjusted basis for federal income tax purposes, adjusted from
time to time to reflect the adjustments required or permitted by Treasury
Regulation Section 1.704-1(b)(2)(iv)(d)-(g).
"CAPITAL ACCOUNT" means the capital account maintained for a
Partner pursuant to Section 3.3.
"CAPITAL CONTRIBUTION" means any cash, cash equivalents or
Fair Market Value of other property which a Partner contributes or is deemed to
have contributed to the Partnership pursuant to Section 3.1 or 3.2.
"CATCH-UP CLASS E DISTRIBUTION" means $273,586.48 to be
distributed on the date of the closing of the transactions contemplated in the
Purchase Agreement to the holders of Class E Units as of such date (according
to their respective Class E Percentage Interests).
"CERTIFICATE OF LIMITED PARTNERSHIP" means the Partnership's
Certificate of Limited Partnership as filed with the Secretary of State of
Delaware, as it may be amended, supplemented or restated from time to time.
"CLASS A COMMON UNIT" means a Common Unit representing a
fractional part of the Partnership Interests of certain Partners and having the
rights and obligations specified with respect to Class A Common Units in this
Agreement.
"CLASS B COMMON UNIT" means a Common Unit representing a
fractional part of the Partnership Interests of certain Partners and having the
rights and obligations specified with respect to Class B Common Units in this
Agreement. To the extent the Partnership's Equity Compensation Trust (or any
successor trust or similar employee compensation plan) is deemed to own Units
for purposes of receiving Distributions hereunder ("EQUITY TRUST UNITS"), such
Equity Trust Units shall be treated in all respects as Class B Common Units and
any reference hereunder to Class B Common Units shall be deemed to include such
Equity Trust Units.
"CLASS E COMMON UNIT" means a Common Unit representing a
fractional part of the Partnership Interests of certain Partners and having the
rights and obligations specified with respect to Class E Common Units in the
Agreement; provided that immediately after the Catch-Up Class E Distribution is
made to the holders of Class E Common Units, each Class E Common Unit shall
convert automatically into a Class A Common Unit and thereafter shall have all
of the rights and obligations specified with respect to Class A Common Units in
this Agreement.
"CLASS A PERCENTAGE INTEREST" means, with respect to any
Partner holding Class A Common Units, a percentage equal to a fraction, the
numerator of which is the number of Class A Common Units owned by such Partner
and the denominator of which is the aggregate number of Class A Common Units
owned by all Partners.
"CLASS B PERCENTAGE INTEREST" means, with respect to any
Partner holding Class B Common Units, a percentage equal to a fraction, the
numerator of which is the number of Class B
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Common Units owned by such Partner and the denominator of which is the
aggregate number of Class B Common Units owned by all Partners.
"CLASS E PERCENTAGE INTEREST" means, with respect to any
Partner holding Class E Common Units, a percentage equal to a fraction, the
numerator of which is the number of Class E Units owned by such partner and the
denominator of which is the aggregate number of Class E Common Units owned by
all Partners.
"CODE" means the United States Internal Revenue Code of 1986, as amended.
"COMMON PERCENTAGE INTEREST" means the Class A Percentage
Interest, the Class B Percentage Interest or the Class E Percentage Interest,
as the context may require.
"COMMON UNIT" means a Unit representing a fractional part of
the Partnership Interests of the Partners and having the applicable rights and
obligations specified with respect to Class A Common Units, Class B Common
Units and Class E Common Units in this Agreement.
"DELAWARE ACT" means the Delaware Revised Uniform Limited
Partnership Act, 6 Del. Code ▇▇▇. tit. 6, Section Section 17-101, et seq., as
it may be amended from time to time, and any successor to the Delaware Act.
"DISTRIBUTION" means each distribution made by the Partnership
to a Unitholder, whether in cash, property or securities of the Partnership and
whether by liquidating distribution, redemption, repurchase or otherwise;
provided that none of the following shall be a Distribution: (a) any redemption
or repurchase by the Partnership of any securities held by an employee of the
Partnership or General Partner pursuant to an Executive Agreement or pursuant
to the Investors Agreement, (b) any recapitalization or exchange of securities
of the Partnership, and (c) any subdivision (by Unit split or otherwise) or any
combination (by reverse Unit split or otherwise) of any outstanding Units.
"EXECUTIVE AGREEMENTS" has the meaning given to such term in
the Investors Agreement.
"EVENT OF WITHDRAWAL" means, with respect to any Person, the
occurrence of any event described in subsections (4) through (10) of Section
17-402 of the Delaware Act.
"FAIR MARKET VALUE" means, with respect to any asset, its fair
market value determined according to Article XIV.
"FISCAL PERIOD" means any interim accounting period within a
Taxable Year established by the General Partner and which is permitted or
required by Code Section 706.
"FISCAL YEAR" means the Partnership's annual accounting period
established pursuant to Section 7.2.
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"GENERAL PARTNER" means TransWestern Communications Company,
Inc. or any Successor General Partner, in its capacity as general partner of
the Partnership.
"GENERAL PARTNERSHIP INTEREST" means, with respect to a
General Partner, the Units set forth on Schedule I with respect to such General
Partner.
"IRR" means the annual interest rate (compounded annually)
which, when used to calculate the net present value as of October 1, 1997 of
all Cash Inflows and all Cash Outflows (each as defined below), causes such net
amount to equal zero. The IRR shall be determined by the General Partner
unless any member of the General Partner's board of directors objects to such
determination being made by the General Partner, in which case the IRR shall be
determined by an independent accounting firm of national reputation, which
accounting firm shall be selected by the General Partner in good faith. Except
as provided below, "CASH INFLOWS" as used herein shall include all cash
payments received by THL with respect to or in exchange for Preferred and/or
Common Units of the Partnership and shares of capital stock of the General
Partner purchased by THL (whether such payments are received from the
Partnership, the General Partner or any third party); provided that in
calculating Cash Inflows fees paid under the Management Agreement (as in effect
as of the date hereof) shall not be taken into account. In calculating Cash
Inflows (i) for purposes of determining whether the Target One IRR has been
satisfied, tax Distributions made to holders on account of Profits allocable to
such holders' Units shall not be taken into account until such time as a
Distribution other than a tax Distribution (a "Non-Tax Distribution") has been
made with respect to the Units which, together with any prior tax
Distributions, results in the Target One IRR being paid; (ii) after the Target
One IRR has been paid, for purposes of determining whether the Target Two IRR
has been satisfied, tax Distributions made after payment of the Target One IRR
to holders on account of Profits allocable to such holders' Units ("Target Two
Tax Distributions") shall not be taken into account until such time as a
Non-Tax Distribution has been made with respect to the Units which, together
with any prior Target Two Tax Distribution, results in the Target Two IRR being
paid and (iii) after the Target Two IRR has been paid, for purposes of
determining whether the Target Three IRR has been satisfied, tax Distributions
made after payment of the Target Two IRR to holders on account of Profits
allocable to such holders' Units ("Target Three Tax Distributions") shall not
be taken into account until such time as a Non-Tax Distribution has been made
with respect to the Units which, together with any prior Target Three Tax
Distributions, results in the Target Three IRR being paid; it being understood
that all tax Distributions made prior to or simultaneous with the payment of
the Target One IRR shall be deemed to have been made and taken into account on
the date the Target One IRR is paid; all Target Two Tax Distributions shall be
deemed to have been made and taken into account on the date the Target Two IRR
is paid, and all Target Three Tax Distributions shall be deemed to have been
made and taken into account on the date the Target Three IRR is paid. "CASH
OUTFLOWS" as used herein shall include the sum of all cash payments and
investments made by THL to and in the Partnership and the General Partner to
acquire Preferred and/or Common Units of the Partnership and shares of capital
stock of the General Partner. For purposes of the net present value
calculation, each Cash Inflow and each Cash Outflow specified above will be
deemed to have been received or made on the first day of the month nearest to
the actual date of such payment.
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For example, assume that a Cash Outflow of $1,000 occurs on
May 3, 1998 and a Cash Inflow of $2,441.41 occurs on April 16,
2001. In such event, at a 25% annual interest rate
(compounded annually), the net present value on May 1, 1998 of
the Cash Outflow (deemed to be made on May 1, 1998) is $1,000
and the net present value on May 1, 1998 of the Cash Inflow
(deemed to be received on May 1, 2001) is $1,000, and the IRR
is 25%.
"INVESTORS AGREEMENT" means that certain Investors Agreement,
dated as of the date hereof by and among the Partnership, the General Partner
and each of the investors listed on Schedule I attached thereto.
"INDEMNIFIED PERSON" shall have the meaning set forth in
Section 5.11(a).
"LIMITED PARTNER" means each of the limited partners named on
Schedule I attached hereto and any Person admitted to the Partnership as a
Substituted Limited Partner or Additional Limited Partner; but only so long as
such Person is shown on the Partnership's books and records as the owner of one
or more Units.
"LIQUIDATOR" has the meaning specified in Section 13.3.
"LOSSES" means items of Partnership loss and deduction
determined according to Section 3.3.
"MANAGEMENT AGREEMENT" means the management agreement dated as
of October 1, 1997 between the ▇▇▇▇▇▇ ▇. ▇▇▇ Company and the Company.
"MAJORITY INTEREST" means more than 50% of the Common Units
which are owned by Partners on the day for any determination requiring approval
of a Majority Interest.
"MINIMUM GAIN" means the partnership minimum gain determined
pursuant to Treasury Regulation Section 1.704-2(d).
"PARTNER" means a General Partner or a Limited Partner.
"PARTNERSHIP" means the limited partnership organized pursuant
to the Certificate of Limited Partnership.
"PARTNERSHIP INTEREST" means the interest of a Partner in
Profits, Losses and Distributions.
"PERSON" means an individual or a corporation, partnership,
trust, unincorporated organization, association or other entity.
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"PREFERRED UNIT" means a Unit representing a fractional part
of the Partnership Interests of all Partners and having the preference rights
and other rights and obligations specified with respect to Preferred Units in
this Agreement.
"PROFITS" means items of Partnership income and gain
determined according to Section 3.3.
"PURCHASE AGREEMENT" means the Securities Purchase and
Redemption Agreement dated as of August 27, 1997 among the Partnership, the
General Partner and each of the selling securityholders identified on the
signature pages thereto.
"QUALIFIED PUBLIC OFFERING" has the meaning given to such term
in the Investors Agreement.
"SALE OF THE PARTNERSHIP" has the meaning given to such term
in the Investors Agreement.
"SECURITIES ACT" means the United States Securities Act of
1933 and applicable rules and regulations thereunder, and any successor to such
statute, rules or regulations. Any reference herein to a specific section,
rule or regulation of the Securities Act shall be deemed to include any
corresponding provisions of future law.
"SUBSTITUTED LIMITED PARTNER" means a Person that is admitted
as a limited partner to the Partnership pursuant to Section 11.1.
"SUCCESSOR GENERAL PARTNER" means any Person admitted as a
general partner of the Partnership pursuant to Section 11.3.
"TARGET ONE IRR" means an IRR greater than or equal to 12%.
"TARGET TWO IRR" means, with respect to any date covered by
any "IRR PERIOD" described below, an IRR which is greater than or equal to the
IRR set forth below opposite such IRR Period:
IRR Period IRR
10/1/97 through 9/30/98 32.500%
10/1/98 through 9/30/99 29.375%
10/1/99 through 9/30/2000 26.250%
10/1/2000 through 9/30/2001 23.125%
periods after 9/30/2001 20.000%
"TARGET THREE IRR" means, with respect to any date covered by
any IRR Period described below, an IRR which is greater than or equal to the
IRR set forth below opposite such IRR Period:
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IRR Period IRR
10/1/97 through 9/30/98 45%
10/1/98 through 9/30/99 40%
10/1/99 through 9/30/2000 35%
10/1/2000 through 9/30/2001 30%
periods after 9/30/2001 25%
"TAXABLE YEAR" means the Partnership's accounting period for
federal income tax purposes determined pursuant to Section 8.2.
"THL" means the ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund III, a Delaware
limited partnership, and its Affiliates.
"TREASURY REGULATIONS" means the income tax regulations
promulgated under the Code and effective as of the date hereof. Such term
shall be deemed to include any future amendments to such regulations and any
corresponding provisions of succeeding regulations to the extent the General
Partner determines that any such amendments and succeeding regulations do not
adversely affect the economic interests of the Partners hereunder.
"UNIT" means a Partnership Interest of a Partner in the
Partnership representing a fractional part of the Partnership Interests of all
Partners and shall include Common Units and Preferred Units; provided that
(a) each Common Unit of a class at any time outstanding
shall represent the same fractional part of the
Partnership Interests of all Partners which own
Common Units of such class as each other Common Unit
of such class, and
(b) each Preferred Unit at any time outstanding shall
represent the same fractional part of the Partnership
Interests of all Partners owning Units as each other
Preferred Unit;
and provided further that any class of Units issued shall have designations,
preferences or special rights set forth in this Agreement and the Partnership
Interest represented by such class of Units shall be determined in accordance
with such designations, preferences or special rights.
"UNIT PURCHASE AGREEMENTS" means the Purchase Agreement, each
of the Executive Agreements and any other agreement pursuant to which the
Partnership issues Units, in each case as such agreement may be further
amended, supplemented or restated from time to time.
"UNITHOLDER" means any Partner in its capacity as owner of one
or more Units as reflected on the Partnership's books and records.
"UNPAID YIELD" of any Preferred Unit means, as of any date, an
amount equal to the excess, if any, of (a) the aggregate Yield accrued on such
Preferred Unit for all periods prior to such
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date, over (b) the aggregate amount of prior Distributions made by the
Partnership that constitute payment of Yield on such Preferred Unit.
"UNRETURNED CAPITAL" means, with respect to a Preferred Unit,
the Capital Contribution made in exchange for such Preferred Unit reduced by
all Distributions made by the Partnership that constitute a return of the
Capital Contribution therefor.
"YIELD" means, with respect to each Preferred Unit, the amount
accruing on such Preferred Unit on a daily basis, at the rate of 12% per annum
on (a) the Unreturned Capital plus (b) Unpaid Yield thereon for all prior
quarterly periods. In calculating the amount of any Distribution to be made
during a period, the portion of a Preferred Unit's Yield for such portion of
such period elapsing before such Distribution is made shall be taken into
account.
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 ORGANIZATION OF PARTNERSHIP. The Partners hereby
agree to continue the Partnership as a limited partnership pursuant to the
provisions of the Delaware Act. Except as expressly provided herein to the
contrary, the rights and obligations of the Partners and the administration and
termination of the Partnership shall be governed by the Delaware Act.
2.2 NAME. The name of the Partnership shall be
TransWestern Publishing Company, L.P. The General Partner in its sole
discretion may change the name of the Partnership at any time and from time to
time. Notification of any such change shall be given to all Unitholders. The
Partnership's business may be conducted under its name and/or any other name or
names deemed advisable by the General Partner.
2.3 PURPOSE. The purpose and business of the Partnership
shall be any business which may lawfully be conducted by a limited partnership
organized pursuant to the Delaware Act, including: the operation of companies
that publish yellow page directories and related properties; the carrying on of
any business relating thereto or arising therefrom in the United States; the
entering into of any partnership, joint venture or other similar arrangement to
engage in any of the foregoing or the ownership of any interest in any entity
engaged in any of the foregoing; and exercising such powers as are necessary in
connection with the foregoing or are incidental or ancillary thereto.
2.4 PRINCIPAL OFFICE; REGISTERED OFFICE. The principal
office of the Partnership shall be at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ or such other place as the General Partner may from time to
time designate. The Partnership may maintain offices at such other place or
places as the General Partner deems advisable. Notification of any such change
shall be given to all Unitholders. The address of the registered office of the
Partnership in the State of Delaware shall be c/o CT Corporation System, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
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and the registered agent for service of process on the Partnership in the State
of Delaware at such registered office shall be CT Corporation System.
2.5 TERM. The term of the Partnership shall commence
upon the filing of the Certificate of Limited Partnership in accordance with
the Delaware Act and shall continue in existence until 11:59 p.m. Delaware
time, on December 31, 2043 or until the earlier termination of the Partnership
in accordance with the provisions of Article XIII.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 GENERAL PARTNER. Pursuant to the second sentence of
Section 3.3(a), the Capital Account of the General Partner shall be restated to
equal the amount set forth on Schedule I with respect to the General Partner.
The General Partner shall hereafter be required to make additional Capital
Contributions to the Partnership (i) as may be necessary to pay liabilities of
the Partnership for which provision cannot otherwise be made and (ii) as
otherwise required in order that the Capital Account of the General Partner
shall at all times be not less than 1% of the total Capital Account of all
Partners.
3.2 LIMITED PARTNERS.
(a) Initial Contributions. Each Limited Partner named on
Schedule I attached hereto who is purchasing Units as of the date hereof agrees
to make the Capital Contributions to the Partnership as set forth on Schedule I
in exchange for the Units specified thereon pursuant to the Unit Purchase
Agreements. Pursuant to the second sentence of Section 3.3(a), the Capital
Account of each Limited Partner who owned Units immediately before the date
hereof and who continues to hold Units as of the date hereof shall be restated
to equal the amount set forth on Schedule I with respect to such Limited
Partner.
(b) Future Contributions. Each Limited Partner who is
issued Units by the Partnership pursuant to Section 3.7 shall make the Capital
Contributions to the Partnership determined under Section 3.7 in exchange for
such Units.
3.3 CAPITAL ACCOUNTS.
(a) The Partnership shall maintain a separate Capital
Account for each Partner according to the rules of Treasury Regulation Section
1.704-1(b)(2)(iv). For this purpose, the Partnership may, upon the occurrence
of the events specified in Treasury Regulation Section 1.704-1(b)(2)(iv)(f),
increase or decrease the Capital Accounts in accordance with the rules of such
regulation and Treasury Regulation Section 1.704-1(b)(2)(iv)(g) to reflect a
revaluation of Partnership property.
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(b) For purposes of computing the amount of any item of
Partnership income, gain, loss or deduction to be allocated pursuant to Article
IV and to be reflected in the Capital Accounts, the determination, recognition
and classification of any such item shall be the same as its determination,
recognition and classification for federal income tax purposes (including any
method of depreciation, cost recovery or amortization used for this purpose),
provided that:
(i) The computation of all items of income, gain, loss
and deduction shall include those items described in
Code Section 705(a)(2)(B) or Treasury Regulation
Section 1.704-1(b)(2)(iv)(i), without regard to the
fact that such items are not includable in gross
income or are not deductible for federal income tax
purposes.
(ii) If the Book Value of any Partnership property is
adjusted pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(e) or (f), the amount of such
adjustment shall be taken into account as gain or
loss from the disposition of such property.
(iii) Items of income, gain, loss or deduction attributable
to the disposition of Partnership property having a
Book Value that differs from its adjusted basis for
tax purposes shall be computed by reference to the
Book Value of such property.
(iv) Items of depreciation, amortization and other cost
recovery deductions with respect to Partnership
property having a Book Value that differs from its
adjusted basis for tax purposes shall be computed by
reference to the property's Book Value in accordance
with Treasury Regulation Section
1.704-1(b)(2)(iv)(g).
(v) To the extent an adjustment to the adjusted tax basis
of any Partnership asset pursuant to Code Sections
732(d), 734(b) or 743(b) is required, pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to
be taken into account in determining Capital
Accounts, the amount of such adjustment to the
Capital Accounts shall be treated as an item of gain
(if the adjustment increases the basis of the asset)
or loss (if the adjustment decreases such basis).
3.4 INTEREST. No interest shall be paid by the
Partnership on Capital Contributions or on balances in Capital Accounts.
3.5 NO WITHDRAWAL. No Person shall be entitled to
withdraw any part of his Capital Contribution or Capital Account or to receive
any Distribution from the Partnership, except as expressly provided herein.
3.6 LOANS FROM PARTNERS. Loans by Partners to the
Partnership shall not be considered Capital Contributions. If any Partner
shall advance funds to the Partnership in excess
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of the amounts required hereunder to be contributed by him to the capital of
the Partnership, the making of such advances shall not result in any increase
in the amount of the Capital Account of such Partner. The amount of any such
advances shall be a debt of the Partnership to such Partner and shall be
payable or collectible in accordance with the terms and conditions upon which
such advances are made; provided that the terms of any such loan shall not be
less favorable to the Partnership than would be available to the Partnership
(without reference to the General Partner's financial condition or guaranties)
from unrelated lenders.
3.7 ISSUANCES OF UNITS. Except as provided herein, the
General Partner shall have sole and complete discretion in determining whether
to issue Units, the number of Units to be issued at any particular time, the
Capital Contribution for any Units issued, and all other terms and conditions
governing the issuance of Units.
ARTICLE IV
DISTRIBUTIONS AND ALLOCATIONS
4.1 DISTRIBUTIONS.
(a) Except as otherwise set forth in this Section 4.1,
the General Partner may in its sole discretion make Distributions at any time
or from time to time and Non-Tax Distributions shall be made in the following
order and priority:
(i) First, to the holders of Class E Common Units, the
Catch-Up Class E Distribution, according to such
holders' respective Class E Percentage Interests, and
no Distribution or portion thereof may be made
pursuant to paragraphs 4.1(a)(ii) through (v) below
until the entire Catch-Up Class E Distribution has
been made in full;
(ii) Second, to the holders of Preferred Units, an amount
equal to the aggregate Unpaid Yield (in the
proportion that each Partner's share of Unpaid Yield
bears to the aggregate Unpaid Yield) until each such
Partner has received Distributions in respect of such
Partner's Preferred Units in an amount equal to the
aggregate Unpaid Yield on such Partner's outstanding
Preferred Units as of the time of such Distribution,
and no Distribution or any portion thereof may be
made pursuant to paragraphs 4.1(a)(iii) through (v)
below until the entire amount of the Unpaid Yield on
the outstanding Preferred Units as of the time of
such Distribution has been paid in full;
(iii) Third, to the holders of Preferred Units, an amount
equal to the aggregate Unreturned Capital (in the
proportion that each Partner's share of Unreturned
Capital bears to the aggregate amount of Unreturned
Capital) until each such Partner has received
Distributions in respect of such Partner's Preferred
Units in an amount equal to the aggregate Unreturned
Capital on such Partner's
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Preferred Units as of the time of such Distribution,
and no Distribution or any portion thereof may be
made pursuant to paragraphs 4.1(a)(iv) through (v)
below until the entire amount of Unreturned Capital
on the outstanding Preferred Units as of the time of
such Distribution has been paid in full;
(iv) Fourth, to the holders of Class A Common Units and/or
Class B Common Units an amount (reduced by any prior
distributions under Section 4.1(a)(i) and this
Section 4.1(a)(iv)) equal to (i) in the case of any
Partner who acquired or owned Units as of or prior to
October 1, 1997, the Capital Account of such Partner
as of October 1, 1997 as set forth on Schedule I
("INITIAL CAPITAL ACCOUNT") and (ii) in the case of
any Partner who acquires Units after October 1, 1997,
the aggregate Capital Contributions made in exchange
for such Units, in the proportion that each Partner's
Initial Capital Account or Capital Contribution for
such Unit or Units, as appropriate, bears to the
aggregate Initial Capital Accounts and Capital
Contributions for all such Units and no Distribution
or portion thereof shall be made pursuant to paragraph
4.1(a)(v) below until the entire unpaid amount in
respect of each such Partner's Initial Capital Account
or Capital Contributions, as appropriate, has been
paid in full; and
(v) Fifth, after making Distributions required under
paragraphs (i) through (iv) above, (A) until the
Target One IRR has been paid, 100% of any further
Distribution shall be made to the Partners holding
Class A Common Units, according to their respective
Class A Percentage Interests, (B) after the Target
One IRR has been paid, until the Target Two IRR has
been paid, any further Distribution shall be made 90%
to the Partners which own Class A Common Units,
according to their respective Class A Percentage
Interests, and 10% to the Partners which own Class B
Common Units, according to their respective Class B
Percentage Interests, (C) after the Target Two IRR
has been paid, until the Target Three IRR has been
paid, any further Distribution shall be made 85% to
the Partners holding Class A Common Units, according
to their respective Class A Percentage Interests, and
15% to the Partners holding Class B Common Units,
according to their respective Class B Percentage
Interests, or (D) after the Target Three IRR has been
paid, any further Distribution shall be made 80% to
all Partners holding Class A Common Units, according
to their respective Class A Percentage Interests, and
20% to all Partners holding Class B Common Units,
according to their respective Class B Percentage
Interests.
(b) The Partnership shall distribute to each Partner
within forty-five (45) days after the close of each fiscal quarter an amount
equal to a percentage which the General Partner may determine in good faith
from time to time to represent the sum of the maximum marginal federal, state
and local income tax rates applicable to any Partner or its partners, if
applicable of
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(i) the Profits for such quarter allocated to such
Partner pursuant to Section 4.2, reduced by
(ii) the sum of (x) the Losses for such quarter allocated
to such Partner pursuant to Section 4.2 and (y) the
excess of the aggregate Losses over the aggregate
Profits for all prior fiscal quarters allocated to
such Partner pursuant to Section 4.2.
All distributions pursuant to this Section 4.1(b) made to a holder of a class
of Units on account of the Profits allocable to such class of Units shall be
made proportionately (based on the number of Units) to all holders of such
class of Units. For purposes of Section 4.1(a), all distributions pursuant to
this Section 4.1(b) made to a holder of Preferred Units on account of the
Profits allocable to Preferred Units shall be treated as distributions under
Section 4.1(a)(i) or (ii) and all distributions pursuant to this Section 4.1(b)
made to a holder of a class of Common Units on account of the Profits allocable
to such class of Units shall be treated as distributions under Section
4.1(a)(iii) or (iv).
(c) A Distribution pursuant to Section 4.1(a) or (b)
shall be made to the Persons shown on the Partnership's books and records as
Partners as of the date of such Distribution.
4.2 ALLOCATIONS. For each Fiscal Year of the
Partnership, after adjusting each Partner's Capital Account for all Capital
Contributions and distributions during such Fiscal Year and all special
allocations pursuant to Section 4.3 with respect to such Fiscal Year, all
Profits and Losses (other than Profits and Losses specially allocated pursuant
to Section 4.3) shall be allocated to the Partners' Capital Accounts in a
manner such that, as of the end of such Fiscal Year, the Capital Account of
each Partner (which may be either a positive or negative balance) shall be
equal to (i) the amount which would be distributed to such Partner, determined
as if the Partnership were to liquidate all of its assets for the Book Value
thereof and distribute the proceeds thereof pursuant to Section 13.3(c), minus
(ii) the sum of (A) such Partner's share of Minimum Gain (as determined
according to Treasury Regulation Section 1.704-2(d) and (g)(3)) and partner
nonrecourse debt minimum gain (as determined according to Treasury Regulation
Section 1.704-2(i)) and (B) the amount, if any, which such Partner is obligated
to contribute to the capital of the Partnership as of the last day of such
Fiscal Year.
4.3 SPECIAL ALLOCATIONS.
(a) Losses attributable to a partner nonrecourse debt (as
defined in Treasury Regulation Section 1.704-2(b)(4)) shall be allocated in the
manner required by Treasury Regulation Section 1.704-2(i)). If there is a net
decrease during a Taxable Year in partner nonrecourse debt minimum gain (as
defined in Treasury Regulation Section 1.704-2(i)(3)), Profits for such Taxable
Year (and, if necessary, for subsequent Taxable Years) shall be allocated to
the Partners in the amounts and of such character as determined according to,
and subject to the exceptions contained in, Treasury Regulation Section
1.704-2(i)(4).
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(b) Except as otherwise provided in Section 4.3(a), if
there is a net decrease in the Minimum Gain during any Taxable Year, each
Partner shall be allocated Profits for such Taxable Year (and, if necessary,
for subsequent Taxable Years) in the amounts and of such character as
determined according to, and subject to the exceptions contained in, Treasury
Regulation Section 1.704-2(f). This Section 4.3(b) is intended to be a minimum
gain chargeback provision that complies with the requirements of Treasury
Regulation Section 1.704-2(f), and shall be interpreted in a manner consistent
therewith.
(c) If any Limited Partner who unexpectedly receives an
adjustment, allocation, or distribution described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6) has an Adjusted Capital Account
Deficit as of the end of any Taxable Year, computed after the application of
Sections 4.3(a) and 4.3(b) but before the application of any other provision of
this Article IV, then Profits for such Taxable Year shall be allocated to such
Limited Partner in proportion to, and to the extent of, such Adjusted Capital
Account Deficits. This Section 4.3(c) is intended to be a qualified income
offset provision as described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.
(d) Profits and Losses described in Section 3.3(b)(v)
shall be allocated in a manner consistent with the manner that the adjustments
to the Capital Accounts are required to be made pursuant to Treasury Regulation
Section 1.704-1(b)(2)(iv)(j), (k) and (m).
(e) Subject to the other provisions of this Section 4.3,
if Profits or Losses are allocated for any Fiscal Period pursuant to Section
4.3(a), (b), (c) or (d), then subsequent allocations of Profits and Losses
shall be made, to the extent possible, to the Partners in such amounts so that
the net Profits and Losses allocated pursuant to this Section 4.3(e) and
Sections 4.3(a), (b), (c) and (d) are equal to the net Profits and Losses that
would have been allocated to the Partners if such allocations pursuant to
Sections 4.3(a), (b), (c) and (d) had not been made.
(g) If, and to the extent that, any Partner is deemed to
recognize any item of income, gain, loss, deduction or credit as a result of
any transaction between such Partner and the Partnership pursuant to Code
Sections 1272-1274, 7872, 483, 482 or any similar provision now or hereafter in
effect, and the General Partner determines that any corresponding Profit or
Loss of the Partnership should be allocated to the Partner who recognized such
item in order to reflect the Partners' economic interests in the Partnership,
then the General Partner may so allocate such Profit or Loss.
4.4 TAX ALLOCATIONS.
(a) The income, gains, losses, deductions and credits of
the Partnership will be allocated, for federal, state and local income tax
purposes, among the Partners in accordance with the allocation of such income,
gains, losses, deductions and credits among the Partners for computing their
Capital Accounts, except that if any such allocation is not permitted by the
Code or other applicable law, the Partnership's subsequent income, gains,
losses, deductions and credit will be allocated among the Partners so as to
reflect as nearly as possible the allocation set forth herein in computing
their Capital Accounts.
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(b) Items of Partnership taxable income, gain, loss and
deduction with respect to any property contributed to the capital of the
Partnership shall be allocated among the Partners in accordance with Code
Section 704(c) (using the traditional method with curative allocations) so as
to take account of any variation between the adjusted basis of such property to
the Partnership for federal income tax purposes and its Book Value.
(c) If the Book Value of any Partnership asset is
adjusted pursuant to Section 3.3(b), subsequent allocations of items of taxable
income, gain, loss and deduction with respect to such asset shall take account
of any variation between the adjusted basis of such asset for federal income
tax purposes and its Book Value in the same manner as under Code Section 704(c)
(using the traditional method without curative allocations).
(d) Allocations of tax credits, tax credit recapture, and
any items related thereto shall be allocated to the Partners according to their
interests in such items as determined by the General Partner taking into
account the principles of Treasury Regulation Section 1.704-1(b)(4)(ii).
(e) Allocations pursuant to this Section 4.4 are solely
for purposes of federal, state and local taxes and shall not affect, or in any
way be taken into account in computing, any Partner's Capital Account or share
of Profits, Losses, Distributions or other Partnership items pursuant to any
provision of this Agreement.
4.5 CURATIVE ALLOCATIONS. If the General Partner
determines, after consultation with counsel experienced in income tax matters,
that the allocation of any item of Partnership income, gain, loss, deduction or
credit is not specified in this Article IV (an "unallocated item"), or that the
allocation of any item of Partnership income, gain, loss, deduction or credit
hereunder is clearly inconsistent with the Partners' economic interests in the
Partnership (determined by reference to the general principles of Treasury
Regulation Section 1.704-1(b) and the factors set forth in Treasury Regulation
Section 1.704-1(b)(3)(ii)) (a "misallocated item"), then the General Partner
may allocate such unallocated items, or reallocate such misallocated items, to
reflect such economic interests; provided that no such allocation will be made
without the prior consent of each Partner which would be affected thereby
(which consent no such Partner may unreasonably withhold).
4.6 INDEMNIFICATION AND REIMBURSEMENT FOR PAYMENTS ON BEHALF OF A
PARTNER. Except as otherwise provided herein, if the Partnership is required
by law (as determined by the General Partner) to make any payment on behalf of
the General Partner or a Unitholder in its capacity as such (including federal
withholding taxes, state personal property taxes, and state unincorporated
business taxes), then such Person shall indemnify the Partnership in full for
the entire amount paid (including interest, penalties and related expenses).
The General Partner may offset Distributions to which a Person is otherwise
entitled hereunder against such Person's obligation to indemnify the
Partnership under this Section 4.6.
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ARTICLE V
MANAGEMENT
5.1 AUTHORITY OF GENERAL PARTNER.
(a) The General Partner shall conduct, direct and
exercise full control over all activities of the Partnership. Except as
otherwise expressly provided in this Agreement, all management powers over the
business and affairs of the Partnership shall be exclusively vested in the
General Partner, and the Limited Partners (except as expressly set forth
herein) shall not have any right of control or management power over the
business and affairs of the Partnership except in their capacity as an officer
of the Partnership or the General Partner. Except as otherwise expressly
provided in this Agreement, and subject to the provisions of the Unit Purchase
Agreements, in addition to the powers now or hereafter granted to a general
partner of a limited partnership under applicable law or which are granted to
the General Partner under any other provisions of this Agreement, the General
Partner shall have full power and authority without any prior approval from any
other Partner to cause the Partnership to do all things deemed necessary or
desirable by the General Partner to conduct the business of the Partnership,
including, without limitation:
(i) to enter into, execute, acknowledge and deliver
any and all contracts, agreements or other
instruments to carry on the business of the
Partnership as set forth herein;
(ii) to borrow money and, as security therefor, to
mortgage, pledge or otherwise encumber any and all
assets of the Partnership;
(iii) to cause to be paid all amounts due and payable by
the Partnership to any Person and to collect all
amounts due to the Partnership;
(iv) to appoint officers and to delegate to such
officers such authority and duties as the General
Partner shall in its sole discretion determine;
(v) to employ agents, employees, managers,
accountants, attorneys, consultants and other
Persons to carry out the business and affairs of
the Partnership, whether or not any such Persons
so employed are affiliated with or related to any
Partner, and to pay such fees, expenses, salaries,
wages and other compensation to such Persons as
the General Partner shall in its sole discretion
determine (provided that, in the case of related
persons, the terms of any such arrangement shall
not be less favorable than would be available to
the Partnership from unrelated Persons);
(vi) to pay, extend, renew, modify, adjust, submit to
arbitration, prosecute, defend or compromise, upon
such terms as the General Partner may determine
and upon such evidence as it may deem sufficient,
any
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obligation, suit, liability, cause of action or
claim, including taxes, either in favor of or
against the Partnership;
(vii) to pay any and all reasonable fees and to make any
and all reasonable expenditures in connection with
the organization of the Partnership, the offering
and sale of Units, the management of the business
and affairs of the Partnership and the carrying
out of the General Partners' obligations and
responsibilities under this Agreement and the
Delaware Act, and to enforce all rights of the
Partnership;
(viii) to prosecute, protest and defend or cause to be
protected and defended all proprietary rights,
including all trade names, trademarks and service
marks, and all licenses and permits and all
applications with respect thereto, which may be
held by the Partnership, and to prosecute and
defend all rights of the Partnership in connection
therewith;
(ix) to cause to be paid any and all taxes, charges and
assessments that may be levied, assessed or
imposed upon any of the assets of the Partnership,
unless the same are contested by the General
Partner in good faith;
(x) to establish one or more accounts for the
Partnership in such financial institutions as the
General Partner may from time to time designate;
(xi) to make Distributions periodically according to
the provisions of this Agreement;
(xii) to cause the Partnership to make equity
investments in, and advance loans to, joint
ventures, general or limited partnerships,
corporations or other relationships that the
General Partner deems desirable and to exercise
the Partnership's rights as a venturer or partner
of such ventures or partnerships, as the case may
be; and
(xiii) anything else affecting the rights and obligations
of the Partnership not otherwise restricted by
this Agreement.
Notwithstanding the foregoing, the General Partner shall not have the power or
authority to cause the Partnership to take any action which the Partnership is
prohibited from taking by the terms of any Unit Purchase Agreement.
(b) With respect to all of its obligations, powers and
responsibilities under this Agreement, the General Partner is authorized to
execute and deliver, for and on behalf of the Partnership, such promissory
notes and other evidences of indebtedness, contracts, agreements, assignments,
deeds, leases, loan agreements, mortgages and other security instruments and
agreements as it deems necessary or appropriate, all on such terms and
conditions as it deems proper.
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5.2 ACTIONS REQUIRING APPROVAL OF LIMITED PARTNERS.
Nothing in Section 5.1 shall give the General Partner the authority to take any
action requiring the approval of the Limited Partners pursuant to Section 9.2
without obtaining such approval.
5.3 PARTNERSHIP QUALIFICATIONS AND FILINGS. The General
Partner shall cause to be filed such other certificates or documents as may be
determined by the General Partner in its sole discretion to be necessary or
appropriate for the continuation, qualification and operation of a limited
partnership (or a partnership in which the Limited Partners have limited
liability) in the State of Delaware and any other jurisdiction in which the
Partnership may elect to do business. Subject to applicable law, the General
Partner may omit from any and all filings in and reports to any state, and from
all amendments thereto, the names and addresses of the Partners, information
relating to the Partners' Capital Contributions and shares of Profits, Losses
and information relating to compensation of the Partners, or may state such
information in the aggregate rather than with respect to each individual
Partner. The General Partner shall not be required to deliver or mail a copy
of the Certificate of Limited Partnership or any amendment thereto to any
Limited Partner. Notwithstanding any of the foregoing provisions, the General
Partner will timely make all reports or filings which are necessary to preserve
the limited liability of the Limited Partners under applicable law.
5.4 RELIANCE BY THIRD PARTIES. Any other provision of
this Agreement to the contrary notwithstanding, no lender or purchaser
(including any purchaser of property from the Partnership) or other Person
dealing with the Partnership, shall be required to verify any representation by
the General Partner as to the extent of the interest in the assets of the
Partnership that the General Partner is entitled to encumber, sell or otherwise
use. Any such lender, purchaser or other Person shall be entitled to rely
exclusively on the representations of the General Partner as to its authority
to enter into such financing or sale arrangements and shall be entitled to deal
with the General Partner as if it were the sole party in interest therein, both
legally and beneficially. Each Limited Partner hereby waives any and all
defenses or other remedies that may be available against such lender, purchaser
or other Person to contest, negate or disaffirm any action of the General
Partner in connection with any sale or financing. In no event shall any person
dealing with the General Partner or the General Partner's representative with
respect to any business or property of the Partnership be obligated to inquire
into the necessity or expedience of any act or action of the General Partner or
the General Partner's representative. Every contract, agreement, deed,
mortgage, security agreement, promissory note or other instrument or document
executed by the General Partner or the General Partner's representative with
respect to any business or property of the Partnership shall be conclusive
evidence in favor of any and every Person relying thereon or claiming
thereunder that (a) at the time of the execution or delivery thereof this
Agreement was in full force and effect, (b) such instrument or document was
duly executed according to this Agreement and is binding upon the Partnership
and (c) the General Partner or the General Partner's representative was duly
authorized and empowered to execute and deliver any and every such instrument
or document for and on behalf of the Partnership.
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5.5 COMPENSATION AND REIMBURSEMENT OF GENERAL PARTNER.
(a) Except as provided in this Section 5.5 or elsewhere
in this Agreement, the General Partner shall not be compensated for its
services as General Partner to the Partnership.
(b) The General Partner shall be reimbursed on a monthly
basis for (i) all actual out-of-pocket expenses, disbursements and advances it
pays or incurs in connection with the formation and business of the
Partnership, including all expenses, disbursements and advances for legal,
accounting, printing and banking matters, consultants and other third parties,
reasonable travel expenses, and filing fees, and (ii) that portion of the
General Partner's legal and accounting expenses, telephone, secretarial, travel
and entertainment expenses, office rent and other office expenses, salaries and
other compensation expenses of employees, and other expenses necessary or
appropriate to the conduct of the Partnership's business which is properly
allocable to the Partnership. The General Partner shall determine the expenses
which are allocable to the Partnership in any reasonable manner.
5.6 OUTSIDE ACTIVITIES. The General Partner, its
Affiliates and their respective stockholders, directors, officers, controlling
persons, partners and employees may have business interests and engage in
business activities in addition to those relating to the Partnership, except as
any such Person may otherwise agree with the Partnership in writing (including,
without limitation, the Investors Agreement and the Unit Purchase Agreements).
Neither the Partnership nor any Partner shall have any rights by virtue of this
Agreement or the partnership relationship created hereby in any such business
interests or activities of any such Person. The General Partner shall devote
to the management of the Partnership only such time as may reasonably be
required to cause the affairs of the Partnership to be conducted in an
efficient and businesslike manner.
5.7 DEALINGS WITH THE GENERAL PARTNER.
(a) The General Partner or any of its Affiliates may lend
to the Partnership funds needed by the Partnership for such periods of time as
the General Partner may determine; provided that the terms of any such loan
shall not be less favorable to the Partnership than would be available to the
Partnership (without reference to the General Partners' financial condition or
guaranties) from unrelated lenders.
(b) Neither the General Partner nor any of its Affiliates
shall sell, transfer or convey any property to, or purchase any property from,
the Partnership, directly or indirectly, except pursuant to transactions that
are fair and reasonable to the Partnership, as determined by the General
Partner in good faith.
5.8 RESOLUTION OF CONFLICTS OF INTEREST.
(a) Unless otherwise expressly provided herein, whenever
this Agreement or any other agreement contemplated herein provides that the
General Partner shall act in a manner which is, or provide terms which are,
fair and reasonable to the Partnership or any Limited Partner, the General
Partner shall determine such appropriate action or provide such terms
considering, in each
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case, the relative interests of each party to such agreement, transaction or
situation and the benefits and burdens relating to such interests, any
customary or accepted industry practices, and any applicable United States
generally accepted accounting practices or principles.
(b) So long as the General Partner acts in good faith,
the resolution, action or terms so made, taken or provided by the General
Partner shall not constitute a breach of this Agreement or any other agreement
contemplated herein.
(c) Whenever in this Agreement the General Partner is
permitted or required to take any action or to make a decision in its "sole
discretion" or "discretion," with "complete discretion" or under a grant of
similar authority or latitude, the General Partner shall be entitled to
consider only such interests and factors as it desires, provided that the
General Partner shall act in good faith. Whenever in this Agreement a General
Partner is permitted or required to take any action or to make a decision in
its "good faith" or under another express standard, the General Partner shall
act under such express standard and shall not be subject to any other or
different standards imposed by this Agreement or any other agreement
contemplated herein. Each Limited Partner hereby agrees that any standard of
care or duty imposed in this Agreement or any other agreement contemplated
herein or under the Delaware Act or any other applicable law, shall be
modified, waived or limited in each case as required to permit the General
Partner to act or to make decisions under this Agreement or any other agreement
contemplated herein pursuant to the authority prescribed in this Section
5.8(c).
5.9 PURCHASE OF UNITS. The General Partner may cause the
Partnership to purchase or otherwise acquire Units, or may purchase or
otherwise acquire Units on behalf of the Partnership. As long as such Units
are owned by or on behalf of the Partnership, such Units shall not be
considered outstanding for any purpose. The General Partner and its Affiliates
may also purchase or otherwise acquire, or sell or otherwise dispose of, Units
for their own account (or as agent) and shall be entitled to exercise all
rights of a Limited Partner with respect to such Units.
5.10 INDEMNIFICATION.
(a) The Partnership shall indemnify and hold harmless the
General Partner and each Affiliate, officer, director, controlling person,
partner, employee or shareholder of the General Partner ("INDEMNIFIED PERSON")
from and against any and all losses, claims, damages, liabilities, expenses
(including reasonable legal fees and expenses), judgments, fines, settlements
and other amounts relating to any and all claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative or investigative, which
relate to the General Partner's status or activities as the General Partner or
to the Partnership's property, business or affairs ("CLAIMS"). An Indemnified
Person's expenses paid or incurred in defending itself against any Claim shall
be reimbursed as paid or incurred. A Person shall be considered an Indemnified
Person whether or not such Person has the status required to be an Indemnified
Person at the time any such Claim is made or maintained. This Section 5.10
shall not apply with respect to any Indemnified Person for that portion of any
Claim determined by the final decision (from which an appeal cannot be taken or
is not timely taken) of a court of competent jurisdiction to have been caused
by his gross negligence, willful misconduct or knowing violation of law. Any
payments made to or on behalf of a Person who is later
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determined not to be entitled to such payments shall be refunded to the
Partnership promptly following such determination. Nothing contained in this
Section 5.10 shall obligate any Limited Partner to pay any amount to the
Partnership or to any Indemnified Person in excess of his Capital Contribution.
(b) The right to indemnification and the advancement of
expenses conferred in this Section 5.10 shall not be exclusive of any other
right which any Person may have or hereafter acquire under any statute,
agreement, vote of Limited Partners or otherwise.
(c) The Partnership may maintain insurance, at its
expense, to protect any Person against any expense, liability or loss, to the
extent that the Partnership would have the power to indemnify such Person
against such expense, liability or loss under the Delaware Act.
5.11 LIMITATION OF LIABILITY. An Indemnified Person shall
not be liable to the Partnership or any Partner for any act or omission
performed or omitted by such Person pursuant to authority granted to such
Person by this Agreement; provided that such limitation of liability shall not
apply to the extent the act or omission was attributable to such Person's gross
negligence, willful misconduct or knowing violation of law. The General
Partner may exercise any of the powers granted to it by this Agreement and
perform any of the duties imposed upon it hereunder either directly or by or
through its agents, and the General Partner shall not be responsible for any
misconduct or negligence on the part of any such agent appointed by the General
Partner (so long as such agent was selected in good faith and with due care) to
the extent that such agent's misconduct or negligence is not caused by and does
not arise out of the General Partner's misconduct or gross negligence in
supervising the activities of such agent.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
6.1 LIMITATION OF LIABILITY. The Limited Partners shall
have no liability under this Agreement except as provided in this Agreement or
in the Delaware Act.
6.2 MANAGEMENT OF BUSINESS. No Limited Partner shall
take part in the operation, management or control (within the meaning of the
Delaware Act) of the Partnership's business or transact any business in the
Partnership's name, unless such Limited Partner is a Person employed or engaged
to transact any such business by or on behalf of a General Partner or the
Partnership. The transaction of any such business by a Limited Partner
employed or engaged to do so by or on behalf of the General Partner or the
Partnership shall not be deemed to constitute participation in control of the
Partnership and shall not affect, impair or eliminate the limitations on the
liability of a Limited Partner under this Agreement.
6.3 NO RIGHT OF PARTITION. No Limited Partner shall have
the right to seek or obtain partition by court decree or operation of law of
any Partnership property, or the right to own or use particular or individual
assets of the Partnership.
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6.4 OUTSIDE ACTIVITIES. A Limited Partner may have
business interests and engage in business activities in addition to those
relating to the Partnership, including business interests and activities which
conflict with or are in direct competition with the Partnership, except as any
such Limited partner may otherwise agree with the Partnership in writing
(including, without limitation, the Investors Agreement and the Unit Purchase
Agreements). Neither the Partnership nor any of the other Limited Partners
shall have any rights by virtue of this Agreement in any business ventures of
any Limited Partner.
6.5 REPRESENTATIONS AND WARRANTIES OF PARTNERS. By
execution and delivery of this Agreement, each Limited Partner (solely on its
own behalf and not on behalf of any other Partner) represents and warrants that
(a) its interest in the Partnership is intended to be and is being acquired
solely for its own account for the purpose of investment and not with a view to
any sale or other disposition of all or any part thereof (provided the
disposition of its property shall be within its control), (b) it is aware that
interests in the Partnership have not been registered under the Securities Act,
that such interests cannot be sold or otherwise disposed of unless they are
registered thereunder or unless an exemption from such registration is
available, that the Partnership has no present intention of so registering such
interests under the Securities Act, and that accordingly such Limited Partner
is able and is prepared to bear the economic risk of making its Capital
Contribution and to suffer a complete loss of its investment, and (c) its
knowledge and experience in financial and business matters are such that it is
capable of evaluating the risks of making its Capital Contribution. The
foregoing representations and warranties may be relied upon by the Partnership,
by the General Partner and the other Limited Partners.
ARTICLE VII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
7.1 RECORDS AND ACCOUNTING. The General Partner shall
keep, or cause to be kept, appropriate books and records with respect to the
Partnership's business, including all books and records necessary to provide
any information, lists and copies of documents required to be provided pursuant
to Section 7.3 or pursuant to applicable laws. All decisions as to accounting
matters, except as specifically provided to the contrary herein, shall be made
by the General Partner.
7.2 FISCAL YEAR. The Fiscal Year of the Partnership
shall end on December 31 of each year or such other annual accounting period as
may be established by the General Partner.
7.3 REPORTS.
(a) The General Partner shall deliver or cause to be
delivered to each Partner, within 120 days after the end of each Fiscal Year,
an annual report containing the following:
(i) a Partnership balance sheet as of the end of such
Fiscal Year, and Partnership statements of income,
changes in cash flows and changes in Partners' equity
for such Fiscal Year, each of which shall be prepared
according to United
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States generally accepted accounting principles and
audited by a firm of independent public accountants;
and
(ii) a general description of the Partnership's activities
during such Fiscal Year (including the result of any
matters submitted to a vote of the Limited Partners
during the last fiscal quarter of such Fiscal Year).
(b) The General Partner shall use reasonable efforts to
deliver or cause to be delivered, by March 1 of each year, to each Person who
was a Unitholder at any time during such Fiscal Year all information necessary
for the preparation of such Person's United States federal income tax returns,
including a statement showing such Person's share of income, gains, losses,
deductions and credits for such year for United States federal income tax
purposes and the amount of any Distributions made to or for the account of such
Person pursuant to this Agreement. Upon the written request of any such Person
made not later than 30 days after the end of each Fiscal Year, the General
Partner shall use reasonable efforts to deliver or cause to be delivered any
information necessary for the preparation of any state, foreign and local
income tax returns which must be filed by such Person.
7.4 TRANSMISSION OF COMMUNICATIONS. Each Person that
owns or controls Units on behalf of, or for the benefit of, another Person or
Persons shall be responsible for conveying any report, notice or other
communication received from the General Partner to such other Person or
Persons.
ARTICLE VIII
TAX MATTERS
8.1 PREPARATION OF TAX RETURNS. The General Partner
shall arrange for the preparation and timely filing of all returns required to
be filed by the Partnership.
8.2 TAX ELECTIONS. The Taxable Year shall be the Fiscal
Year set forth in Section 7.2, unless the General Partner shall determine
otherwise in its sole discretion and in compliance with applicable laws. The
General Partner shall, in its sole discretion, determine whether to make or
revoke any available election pursuant to the Code. Each Partner will upon
request supply the information necessary to give proper effect to such
election.
8.3 TAX CONTROVERSIES. The General Partner is designated
the "TAX MATTERS PARTNER" (as defined in Code Section 6231), and is authorized
and required to represent the Partnership (at the Partnership's expense) in
connection with all examinations of the Partnership's affairs by tax
authorities, including resulting administrative and judicial proceedings, and
to expend Partnership funds for professional services and costs associated
therewith. Each Partner agrees to cooperate with the General Partner and to do
or refrain from doing any or all things reasonably requested by the General
Partner with respect to the conduct of such proceedings.
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ARTICLE IX
VOTING; AMENDMENTS
9.1 VOTING RIGHTS.
(a) Anything herein to the contrary notwithstanding, the
Partners may dissolve the Partnership upon the affirmative vote of the owners
of a majority of the Common Units.
(b) At the General Partner's election, any action that
may be taken at a Partners' meeting may be taken without a meeting if the
General Partner solicits written consents to the action, and if within 90 days
after delivery of the request for written consents, such consents are received
from Partners owning not less than the minimum number of Units that would be
necessary to authorize or take such action at a meeting. A written consent to
the taking of any action shall have no force and effect if it is received more
than 90 days after the date of the General Partner's delivery of the written
request soliciting consents to such action. In the event any action is taken
pursuant to this Section 9.1 by written consent in lieu of a meeting of the
Partners, the General Partner will deliver notice to all of the Partners to
such effect. The General Partner shall be solely responsible for conducting
the solicitation of consents and for determining the validity and effect of
responses to the solicitation.
(c) With respect to Units that are held for a Person's
account by another Person (such as a broker, dealer, bank, trust company or
clearing corporation, or an agent of any of the foregoing) in whose name
ownership is registered, the Partnership may assume without inquiry that such
broker, dealer or other agent, in exercising any right in respect of such Units
on any matter, is exercising such rights according to the direction of the
Person on whose behalf such broker, dealer or other agent is holding such
Units.
9.2 AMENDMENTS.
(a) The General Partner (pursuant to its powers of
attorney from the Limited Partners), without the consent of any Limited
Partner, may amend any provision of this Agreement, and execute, swear to,
acknowledge, deliver, file and record whatever documents may be required in
connection therewith, to reflect:
(i) a change in the name of the Partnership or the
location of the principal place of business of the
Partnership;
(ii) admission, substitution, removal or withdrawal of
Partners in accordance with this Agreement;
(iii) a change that in the General Partner's reasonable
judgment does not adversely affect any Unitholder in
any material respect in its capacity as an owner of
Units, and is either (i) necessary or desirable to
satisfy any requirements, conditions or guidelines
contained in any opinion, directive,
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order, ruling or regulation of any United States
federal or state agency or judicial authority or
contained in any United States federal or state
statute, or (ii) required or contemplated by this
Agreement; or
(iv) a change that in the General Partner's reasonable
judgment does not adversely affect any Unitholder in
any material respect in its capacity as an owner of
Units, and (i) cures any ambiguity, (ii) corrects or
supplements any provisions in this agreement or (iii)
adds, changes or eliminates any provisions of this
Agreement.
(b) This Agreement may be amended upon the consent of the
General Partner and the affirmative vote of the owners of not less than a
majority of the Class A Common Units; provided, that without the consent of
each Partner directly affected thereby, no amendment shall convert a Unit into
a General Partnership Interest, modify the limited liability of a Limited
Partner, increase the liabilities or responsibilities of, or diminish the
rights or protections of the General Partner under this Agreement, or modify
the method provided in this Agreement for determining allocations and
Distributions and the definitions relating thereto. This Section 9.2(b) shall
only be amended with the approval by written consent or affirmative vote of all
Units which are owned by Partners.
ARTICLE X
TRANSFER OF PARTNERSHIP INTERESTS
10.1 TRANSFER IN GENERAL. THE TRANSFER OF ANY PARTNERSHIP
INTEREST IS SUBJECT TO THE RESTRICTIONS ON TRANSFER CONTAINED IN THE UNIT
PURCHASE AGREEMENTS AND THE INVESTORS AGREEMENT, WHICH RESTRICTIONS ARE
INCORPORATED HEREIN BY REFERENCE.
ARTICLE XI
ADMISSION OF PARTNERS
11.1 SUBSTITUTED LIMITED PARTNERS. A Person may request
admission as a Substituted Limited Partner on the form prescribed by the
General Partner. Such Person shall become a Substituted Limited Partner on the
date on which the General Partner (acting at the direction of a majority of the
disinterested members of the Board of Directors of the General Partner)
consents (in its sole discretion) thereto and such admission is shown on the
books and records of the Partnership.
11.2 ADDITIONAL LIMITED PARTNERS. A Person may be
admitted to the Partnership as an Additional Limited Partner only upon
furnishing to the General Partner (a) a letter of acceptance, in form
satisfactory to the General Partner, of all the terms and conditions of this
Agreement, including the power of attorney granted in Section 15.1, and (b)
such other documents
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or instruments as may be necessary or appropriate to effect his admission as a
Limited Partner. Such admission shall become effective on the date on which
the General Partner determines in its sole discretion that such conditions have
been satisfied and when any such admission is shown on the books and records of
the Partnership.
11.3 ADMISSION OF A SUCCESSOR GENERAL PARTNER. A Person
shall be admitted as a Successor General Partner if and only if (a) the Person
is the transferee of all of the General Partner's General Partnership Interest
in a transfer permitted under the Investors Agreement, or (b) the Person is
elected to be a Successor General Partner in the manner described in Section
12.3 or 13.2.
11.4 REPRESENTATIONS OF NEW PARTNERS. Each Person
admitted to the Partnership as a Substituted or Additional Limited Partner or
as a General Partner shall become a party to, and agree to be bound by, this
Agreement and shall make the representations contained in Section 6.5 and such
additional representations relating to the matters contemplated by the
Investors Agreement as the General Partner may request.
ARTICLE XII
WITHDRAWAL OR REMOVAL OF PARTNERS
12.1 WITHDRAWAL OF GENERAL PARTNER. The General Partner
shall not withdraw as the Partnership's general partner except as follows:
(a) The General Partner shall be deemed to have withdrawn
as the Partnership's general partner upon the effective date of the transfer of
all of its General Partnership Interest in a transfer permitted under the
Investors Agreement.
(b) The General Partner may withdraw as the Partnership's
general partner by delivering a notice of withdrawal to the Partners. Such
notice shall state the effective date of the General Partner's withdrawal,
which date shall be not less than 90 days subsequent to the date such notice is
mailed, and shall set forth rules and procedures for the nomination and
election of a Successor General Partner pursuant to Section 12.2. Unless such
notice is earlier revoked, the General Partner shall be deemed to have
withdrawn as the Partnership's general partner upon the earlier of (i) the
effective date stated in such notice, or (ii) the date a Successor General
Partner is admitted to the Partnership pursuant to Section 11.3.
(c) The General Partner shall have no right to withdraw
as the Partnership's general partner without the consent of a majority of the
Class A Common Units.
If the General Partner withdraws as the Partnership's general partner in
violation of this Section 12.1, the damages for which it may be held liable
under Section 17-602 of the Delaware Act (or otherwise as a result of such
withdrawal) shall be limited to the forfeiture of its General Partnership
Interest.
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12.2 ELECTION OF SUCCESSOR GENERAL PARTNER. If the
General Partner withdraws from the Partnership pursuant to Section 12.1(b), the
Partners may elect a Successor General Partner as the General Partner, by the
affirmative vote of Limited Partners which own at least a majority of the
Common Units which are owned by all Limited Partners. Any Person elected by
the Partners to be Successor General Partner shall be admitted to the
Partnership as Successor General Partner only upon the Partnership's receipt of
a written assumption by such Person of all of the General Partner's rights and
obligations hereunder (including the obligation to purchase the former General
Partner's General Partnership Interest pursuant to Section 12.3). If a
Successor General Partner is admitted to the Partnership pursuant to this
Section 12.2 on or before the effective date specified in the General Partner's
notice of withdrawal pursuant to Section 12.1(b), such Successor General
Partner shall continue the Partnership's business according to this Agreement.
12.3 PURCHASE OF GENERAL PARTNERSHIP INTEREST.
(a) Within 30 days following the admission of a Successor
General Partner to the General Partner pursuant to Section 12.2 or 13.2, the
former General Partner may, at its option, elect to sell its General
Partnership Interest to the Successor General Partner. Such election shall be
made by delivering to the Successor General Partner a written notice reasonably
indicating that the former General Partner is electing to sell its General
Partnership Interest pursuant to this Section 12.3. If the former General
Partner properly makes such election, the Successor General Partner shall
purchase such interest from the former General Partner for a purchase price,
payable in cash or cash equivalents within 120 days after the effective date of
the admission of the Successor General Partner as General Partner, equal to the
Fair Market Value of the former General Partner's Interest as of the time of
such General Partner's withdrawal or removal. For purposes of determining the
Fair Market Value of the former General Partner's Interest, the Fair Market
Value of the Partnership's assets will be determined according to Article XIV.
12.4 FORMER GENERAL PARTNER'S LIABILITIES. The General
Partner shall not be liable for Partnership debts and other liabilities and
obligations of the Partnership incurred after the effective date of the General
Partner's removal or withdrawal as General Partner, but shall continue to be
liable for Partnership debts and other liabilities and obligations of the
Partnership incurred before such effective date.
12.5 WITHDRAWAL OF LIMITED PARTNERS. No Limited Partner
shall have any right to withdraw from the Partnership without the prior written
consent of the General Partner. Upon a transfer of all of a Limited Partner's
Units in a transfer permitted by the Investors Agreement or in accordance with
such Limited Partner's Executive Agreement, such Limited Partner shall cease to
be a Limited Partner; provided that the transferor shall not be released from
liability to the Partnership for (a) any materially false statement made, or
caused to be made, by such transferor in the Certificate of Limited
Partnership, or (b) any obligation of such transferor to contribute cash or
other property to the Partnership.
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ARTICLE XIII
DISSOLUTION AND LIQUIDATION
13.1 DISSOLUTION. The Partnership shall not be dissolved
by the admission of Additional Limited Partners or Substituted Limited
Partners, by the admission of a Successor General Partner, or by the withdrawal
or removal of the General Partner (if there is a Successor General Partner), or
by the death, incompetency, incapacity, dissolution, bankruptcy, insolvency, or
termination of a Limited Partner. The Partnership shall dissolve, and its
affairs shall be wound up, upon:
(a) the expiration of its term as provided in Section
2.5;
(b) the withdrawal of the General Partner pursuant to
Section 12.1(b) if the Limited Partners do not elect a Successor General
Partner to continue the Partnership's business as provided by Section 12.2; or
(c) the occurrence of any event not specified in Section
13.1(b) that results in the General Partner ceasing to be the General Partner
under the Delaware Act.
13.2 CONTINUATION AFTER DISSOLUTION. Within 90 days
following a dissolution of the Partnership pursuant to Section 13.1(c),
pursuant to rules and procedures established by the Liquidator pursuant to
Section 13.3(b), the Limited Partners may elect to reconstitute the Partnership
and continue its business according to this Agreement upon the admission to the
Partnership of a Successor General Partner elected by the affirmative vote of
Limited Partners which own at least a "majority in interest" as defined by
Revenue Procedure 94-46. Any Person elected by the Limited Partners to be
Successor General Partner shall be admitted to the Partnership as Successor
General Partner only upon the Partnership's receipt of a written assumption by
such Person of all of the former General Partner's rights and obligations
hereunder (including the obligation to purchase the General Partner's Interest
pursuant to Section 12.4). Unless a Successor General Partner is admitted to
the Partnership within 90 days after dissolution, the Partnership shall be
liquidated pursuant to Section 13.3. If a Successor General Partner is
admitted to the Partnership pursuant to this Section 13.2 within 90 days after
dissolution, then:
(a) the reconstituted Partnership shall continue until
the end of the term set forth in Section 2.5 unless earlier dissolved according
to this Article XIII; and
(b) all necessary steps shall be taken to cancel this
Agreement and the Certificate of Limited Partnership and to enter into a new
partnership agreement and certificate of limited partnership, and the Successor
General Partner may for this purpose exercise the powers of attorney granted
the General Partner pursuant to Section 15.1; provided that the right of the
Limited Partners set forth above to elect a Successor General Partner and to
reconstitute and to continue the business of the Partnership shall not exist
and may not be exercised unless the Partnership has received an opinion of
counsel that (i) the exercise of the right would not result in the loss of
limited liability of any Limited Partner, and (ii) neither the Partnership nor
the reconstituted Partnership would be
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classified as other than a partnership for United States federal income tax
purposes upon the exercise of such right to continue.
13.3 LIQUIDATION.
(a) Upon dissolution of the Partnership, the General
Partner shall be the Liquidator, unless and until a successor ▇▇▇▇▇▇▇▇▇▇ is
appointed as provided herein. The Liquidator shall agree not to resign at any
time without 30 days' prior written notice. The Liquidator, if other than the
General Partner, may be removed at any time, with or without cause, by notice
of removal and appointment of a successor Liquidator approved by a Majority
Interest. Within 30 days following the occurrence of any Event of Withdrawal
with respect to the Liquidator, a successor Liquidator may be elected by a
Majority Interest. The successor Liquidator shall succeed to all rights,
powers and duties of the former Liquidator. The right to appoint a successor
or substitute Liquidator in the manner provided herein shall be recurring and
continuing for so long as the functions and services of the Liquidator are
authorized to continue under the provisions hereof, and every reference herein
to the Liquidator shall be deemed to refer also to any such successor or
substitute Liquidator appointed in the manner herein provided. Except as
expressly provided in this Article XIII, the Liquidator appointed in the manner
provided herein shall have and may exercise, without further authorization or
consent of any of the parties hereto, all of the powers conferred upon the
General Partner under the terms of this Agreement (but subject to all of the
applicable limitations, contractual and otherwise, upon the exercise of such
powers to the extent necessary or desirable in the good faith judgment of the
Liquidator to carry out the duties and functions of the Liquidator hereunder
for and during such period of time as shall be reasonably required in the good
faith judgment of the Liquidator to complete the winding up and liquidation of
the Partnership as provided for herein). The Liquidator shall receive as
compensation for its services (i) if the Liquidator is the General Partner, the
compensation and reimbursements specified in Section 5.5, or (ii) if the
Liquidator is not a General Partner, a reasonable fee plus out-of-pocket costs
or such other compensation as a Majority Interest may approve.
(b) If the Partnership is dissolved pursuant to Section
13.1(c), the Liquidator shall establish reasonable rules and procedures for the
nomination and election of a Successor General Partner pursuant to Section
13.2. Pending such election, the Liquidator shall continue to operate the
Partnership's business in the ordinary course with a view to conserving the
Partnership's assets. If no Successor General Partner is admitted to the
Partnership pursuant to Section 13.2 within the time period specified therein,
the Liquidator shall proceed with the liquidation of the Partnership's assets
as provided in Section 13.3(c).
(c) The Liquidator shall liquidate the assets of the
Partnership, and apply and distribute the proceeds of such liquidation, in the
following order of priority, unless otherwise required by mandatory provisions
of applicable law:
(i) First, to the payment of the Partnership's debts and
obligations to its creditors, including sales
commissions and other expenses incident to any sale
of the assets of the Partnership.
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(ii) Second, to the establishment of and additions to such
reserves as the Liquidator may deem necessary or
appropriate.
(iii) Third, to the Partners, in accordance with Section
4.1.
The reserves established pursuant to subparagraph (ii) shall be paid over by
the Liquidator to a bank or other financial institution, to be held in escrow
for the purpose of paying any such contingent or unforeseen liabilities or
obligations and, at the expiration of such period as the Liquidator deems
advisable, such Reserves shall be distributed to the Partners in the priorities
set forth in this Section 13.3(c).
13.4 DISTRIBUTION IN KIND. The provisions of Section 13.3
which require the liquidation of the assets of the Partnership notwithstanding,
but subject to the order of priorities set forth therein, if upon dissolution
of the Partnership the Liquidator determines that an immediate sale of part or
all of the Partnership's assets would be impractical or would cause undue loss
to the Partners, the Liquidator may, in its sole discretion, defer for a
reasonable time the liquidation of any assets except those necessary to satisfy
Partnership liabilities (other than loans to the Partnership by Partners) and
reserves, and may, in its absolute discretion, distribute to the Partners, in
lieu of cash, as beneficiaries of a liquidating trust or otherwise and in
accordance with the provisions of Section 13.3(c), undivided interests in such
Partnership assets as the Liquidator deems not suitable for liquidation. Any
such distributions in kind shall be subject to such conditions relating to the
disposition and management of such properties as the Liquidator deems
reasonable and equitable and to any agreements governing the operating of such
properties at such time. The Liquidator shall determine the Fair Market Value
of any property distributed in accordance with the valuation procedures set
forth in Article XIV.
13.5 CANCELLATION OF CERTIFICATE OF LIMITED PARTNERSHIP.
Upon the completion of the distribution of Partnership property as provided in
Sections 13.3 and 13.4, the Partnership shall be terminated, and the Liquidator
(or the Limited Partners, if necessary) shall cause the cancellation of the
Certificate of Limited Partnership and all qualifications of the Partnership as
a foreign limited partnership in jurisdictions other than the State of Delaware
and shall take such other actions as may be necessary to terminate the
Partnership. The Partnership shall be deemed to continue in existence for all
purposes of this Agreement until it is terminated pursuant to this Section
13.5.
13.6 REASONABLE TIME FOR WINDING UP. A reasonable time
shall be allowed for the orderly winding up of the business and affairs of the
Partnership and the liquidation of its assets pursuant to Section 13.3 in order
to minimize any losses otherwise attendant upon such winding up.
13.7 RETURN OF CAPITAL. The Liquidator shall not be
personally liable for the return of Capital Contributions or any portion
thereof, it being understood that any such return shall be made solely from
Partnership assets.
- 30 -
35
ARTICLE XIV
VALUATION
14.1 VALUATION IN GENERAL. The Fair Market Value of any
asset as of any date shall be the price a willing buyer would pay a willing
seller in an arm's-length transaction as determined using any reasonable
valuation method.
14.2 APPRAISALS FOR PURCHASE OF GENERAL PARTNER'S GENERAL
PARTNERSHIP INTEREST.
(a) If no agreement as to the Fair Market Value of the
Partnership's assets is reached between the Successor General Partner and the
former General Partner within 30 days after the date of any election under
Section 12.4(a), then the former General Partner shall within 10 days following
the expiration of such 30-day period appoint an appraiser experienced in
valuing assets of the type in question, and inform the Successor General
Partner in writing of the name and business address of the appraiser. The
appraiser shall make his own, independent appraisal of the asset(s) in dispute,
but he shall give the former General Partner and the Successor General Partner
an opportunity to meet with him prior to completing his appraisal. Except as
provided in Section 14.2(b), the appraiser's determination of the Fair Market
Value of the asset(s) in dispute will be made within 30 days of his
appointment, and will be final and binding on all concerned, absent manifest
error.
(b) If the Successor General Partner does not approve the
appraiser selected by the former General Partner, the Successor General Partner
may within 10 days following notification of such selection pursuant to Section
14.2(a) appoint an appraiser of his choice, experienced in valuing assets of
the type in question, and inform the former General Partner in writing of the
name and business address of the appraiser. The appraisers appointed by the
former General Partner and the Successor General Partner shall appoint a third
appraiser, also experienced in valuing assets of the type in question. Each of
the three appraisers shall make his own independent appraisal of the Fair
Market Value of the asset(s) in dispute, but the appraisers shall give the
Successor General Partner and the former General Partner an opportunity to meet
with them prior to completing their appraisal. The appraisers' determinations
of the Fair Market Value of the asset(s) in question shall be made within the
time period remaining for the payment required under Section 12.4(a). The
average of the two valuations that are closest to each other shall be
determined to be the Fair Market Value of the appraised asset(s) and such
determination shall be final and binding on all concerned, absent manifest
error.
(c) The cost of each appraisal shall be shared equally
among the Partnership, the Successor General Partner in question and the
General Partner in question.
- 31 -
36
ARTICLE XV
GENERAL PROVISIONS
15.1 POWER OF ATTORNEY.
(a) Each Partner hereby constitutes and appoints the
General Partner and the Liquidator, with full power of substitution, as his
true and lawful agent and attorney-in-fact, with full power and authority in
his or its name, place and stead, to:
(i) execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices (A) this
Agreement, all certificates and other instruments and
all amendments thereof which the General Partner
deems appropriate or necessary to form, qualify, or
continue the qualification of, the Partnership as a
limited partnership (or a partnership in which
limited partners have limited liability) in the State
of Delaware and in all other jurisdictions in which
the Partnership may conduct business or own property;
(B) all instruments which the General Partner deems
appropriate or necessary to reflect any amendment,
change, modification or restatement of this Agreement
in accordance with its terms; (C) all conveyances and
other instruments or documents which the General
Partner deems appropriate or necessary to reflect the
dissolution and liquidation of the Partnership
pursuant to the terms of this Agreement, including a
certificate of cancellation; and (D) all instruments
relating to the admission, withdrawal or substitution
of any Partner pursuant to Article XI or XII; and
(ii) sign, execute, swear to and acknowledge all ballots,
consents, approvals, waivers, certificates and other
instruments appropriate or necessary, in the
reasonable judgment of the General Partner, to make,
evidence, give, confirm or ratify any vote, consent,
approval, agreement or other action which is made or
given by the Partners hereunder or is consistent with
the terms of this Agreement and/or appropriate or
necessary (and not inconsistent with the terms of
this Agreement), in the reasonable judgment of the
General Partner, to effectuate the terms of this
Agreement; provided that when required by
Article IX or any other provision of
this Agreement which establishes a percentage of the
Limited Partners required to take any action, the
General Partner or the Liquidator may exercise the
power of attorney made in this subsection (ii) only
after the necessary vote, consent or approval by the
required percentage of the Limited Partners.
(b) The foregoing power of attorney is irrevocable and
coupled with an interest, and shall survive the death, incompetency,
disability, incapacity, dissolution, bankruptcy, insolvency or termination of
any Partner and the transfer of all or any portion of his or its Partnership
Interest and shall extend to such Partner's heirs, successors, assigns and
personal representatives.
- 32 -
37
15.2 TITLE TO PARTNERSHIP ASSETS. Partnership assets
shall be deemed to be owned by the Partnership as an entity, and no Partner,
individually or collectively, shall have any ownership interest in such
Partnership assets or any portion thereof. Legal title to any or all
Partnership assets may be held in the name of the Partnership, the General
Partner or one or more nominees, as the General Partner may determine. The
General Partner hereby declares and warrants that any Partnership assets for
which legal title is held in its name or the name of any nominee shall be held
in trust by the General Partner or such nominee for the use and benefit of the
Partnership in accordance with the provisions of this Agreement. All
Partnership assets shall be recorded as the property of the Partnership on its
books and records, irrespective of the name in which legal title to such
Partnership assets is held.
15.3 RESTRICTIONS. Certain Partners have entered into an
Investors Agreement of even date herewith subjecting their Partnership
Interests to certain restrictions.
15.4 CONVERSION TO CORPORATE FORM. If, in accordance with
the terms and provisions of the Investors Agreement, the Partnership is to be
converted into corporate form (an "APPROVED CORPORATE CONVERSION"), each
Partner hereby consents to such Approved Corporate Conversion and agrees that
it will, in connection with such Approved Corporate Conversion, consent to and
take all actions and raise no objections against the Approved Corporate
Conversion. Each holder of Units shall take all necessary or desirable actions
in connection with the consummation of the Approved Corporate Conversion. The
obligations of the holders of Units hereunder with respect to the Approved
Corporate Conversion are subject to the satisfaction of the following
conditions: (i) upon the consummation of the Approved Corporate Conversion,
each holder of Units shall receive securities of the corporate entity into
which the Partnership is being converted which, if such corporate entity were
completely liquidated, would provide such holder with the same form of
consideration and the same portion of consideration such holder would have
received if the aggregate consideration had been distributed by the Partnership
in complete liquidation pursuant to the rights and preferences set forth herein
as in effect immediately prior to the Approved Corporate Conversion; (ii) if
any holders of a class or type of Units are given an option as to the form and
amount of securities to be received in exchange for such holder's Units in
connection with the Approved Corporate Conversion, each holder of such class or
type of Units shall be given the same option; and (iii) each holder of then
currently exercisable rights to acquire Units shall be given an opportunity to
exercise such rights prior to the consummation of the Approved Corporate
Conversion and to be treated in the Approved Corporate Conversion as holders of
such Units.
15.5 ADDRESSES AND NOTICES. Any notice, demand, request
or report required or permitted to be given or made to any Person under this
Agreement shall be in writing and shall be deemed given or made when delivered
in person or when sent by first class mail or by other commercially reasonable
means of written communication to the Person at his address as shown on the
Partnership's books and records. An affidavit or certificate of mailing
executed by the General Partner shall be conclusive (but not exclusive)
evidence of the date and fact of mailing of any such notice, demand, request or
report. Any notice to the General Partner or the Partnership shall be deemed
given if received by the General Partner at the principal office of the
Partnership designated pursuant to Section 2.4.
- 33 -
38
15.6 BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.
15.7 CREDITORS. None of the provisions of this Agreement
shall be for the benefit of or enforceable by any creditors of the Partnership,
and no creditor who makes a loan to the Partnership may have or acquire at any
time as a result of making the loan any direct or indirect interest in
Partnership Profits, Losses, Distributions, capital or property other than as a
secured creditor.
15.8 WAIVER. No failure by any party to insist upon the
strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute waiver of any such breach or any other covenant, duty,
agreement or condition.
15.9 COUNTERPARTS. This Agreement may be executed in
separate counterparts, each of which will be an original and all of which
together shall constitute one and the same agreement binding on all the parties
hereto.
15.10 APPLICABLE LAW. THE PARTNERSHIP LAW OF THE STATE OF
DELAWARE WILL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE
PARTNERSHIP AND ITS PARTNERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL
LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF DELAWARE.
15.11 INVALIDITY OF PROVISIONS. If any provision of this
Agreement is or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
15.12 NUMBER AND GENDER. Whenever required by the context,
any pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
15.13 FURTHER ACTION. The parties shall execute and
deliver all documents, provide all information and take or refrain from taking
action as may be necessary or appropriate to achieve the purposes of this
Agreement.
15.14 INTEGRATION. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto, other
than the Unit Purchase Agreements (as in effect as of the date of this
Agreement).
15.15 INCLUDING. Whenever the term "INCLUDING" is used
herein in connection with a listing of items included within a prior reference,
such listing shall be interpreted to be illustrative only, and shall not be
interpreted as a limitation on or exclusive listing of the items included
within the prior reference.
- 34 -
39
15.16 ARBITRATION. If any dispute, claim or difference
arises out of this Agreement, or as to the rights and liabilities of the
parties hereunder or as to the breach or invalidity hereof, or in connection
with the construction of this Agreement (each such event being hereinafter
called a "DISPUTE"), the parties shall settle such Dispute exclusively by
binding arbitration in accordance with the Commercial Arbitration rules of the
American Arbitration Association in effect as of the date of commencement of
the arbitration; provided, however, that any such arbitration shall be presided
over by three arbitrators. The arbitration shall be held in San Diego,
California unless the parties mutually agree to have the arbitration held
elsewhere, and judgment upon the award made therein may be entered by any court
having jurisdiction thereof; provided, further, that noting contained in this
Section 15.15 shall be construed to limit or preclude a party from bringing any
action in any court of competent jurisdiction in the United States for
injunctive or other provisional relief to compel another party hereto to comply
with its obligations under this Agreement or any other agreement between or
among the parties during the pendency of the arbitration proceedings.
* * * * *
- 35 -
40
IN WITNESS WHEREOF, the undersigned have executed or caused to
be executed on their behalf this Agreement of Limited Partnership as of the
date first written above.
GENERAL PARTNER: TRANSWESTERN COMMUNICATIONS COMPANY, INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Its Vice President
LIMITED PARTNERS:
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND III, L.P.
By: THL Equity Advisors Limited Partnership III
Its: General Partner
By: THL Equity Trust III
Its: General Partner
By:
------------------------------
Its:
------------------------------
CONTINENTAL ILLINOIS VENTURE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Its: Managing Director
CIVC PARTNERS III
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Its:
------------------------------
Managing Director
(SIGNATURE PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP)
41
FIRST UNION INVESTORS, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Its Senior Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
Its Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇, TRUST
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
Its Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LIVING TRUST
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Its Trustee
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Its Trustee
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
(SIGNATURE PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP)
42
▇▇▇▇▇ FAMILY TRUST
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Its Trustee
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇
--------------------------------------
Ita ▇▇▇▇-▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(SIGNATURE PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP)
43
THL -- CCI LIMITED PARTNERSHIP
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Its Treasurer
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND III, L.P.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------
Its
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND III, L.P.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------
Its
--------------------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE 1995 HARKINS GIFT TRUST
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇
(SIGNATURE PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP)
44
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
FIRST TRUST CORP., TRUSTEES FOR THE BENEFIT
OF ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ #
188608-0001
By
------------------------------------
Its
-----------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(SIGNATURE PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP)
45
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
WCS TRUSTEE ▇▇▇▇▇▇ ▇▇▇▇▇ IRR. FAMILY TRUST
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------
Its Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------
Its Managing Director
(SIGNATURE PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP)
46
▇▇▇▇▇▇▇ ▇▇▇▇▇ GIFT TRUST
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Trustee
▇▇▇▇▇ ▇▇▇▇▇ GIFT TRUST
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1995 TRUST
By /c/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its Trustee
(SIGNATURE PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP)
47
SCHEDULE I
Preferred Units Common Units
---------------------- --------------------------------------------------
Class A Class B
---------------------- -----------------------
Capital Capital Capital
No. Contributions No. Contributions No. Contributions
----- ------------- ----- ------------- ----- --------------
GENERAL PARTNER
TransWestern Communications
Company, Inc.
LIMITED PARTNERS:
▇▇▇▇▇▇ ▇. ▇▇▇ Equity
Fund III, L.P.
Continental Illinois
Venture Corporation
CIVC Partners III
First Union Investors, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Living Trust
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ Family Trust
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THL--CCI Limited Partnership
Common Units
--------------------------------------------------
Class C Class D
---------------------- ----------------------
Capital Capital
No. Contributions No. Contributions
----- ------------- ----- -------------
GENERAL PARTNER
TransWestern Communications
Company, Inc.
LIMITED PARTNERS:
▇▇▇▇▇▇ ▇. ▇▇▇ Equity
Fund III, L.P.
Continental Illinois
Venture Corporation
CIVC Partners III
First Union Investors, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Living Trust
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ Family Trust
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THL--CCI Limited Partnership
48
Preferred Units Common Units
---------------------- --------------------------------------------------
Class A Class B
---------------------- -----------------------
Capital Capital Capital
No. Contributions No. Contributions No. Contributions
----- ------------- ----- ------------- ----- --------------
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund III, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund III, L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The 1995 Harkins Gift Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[▇▇▇▇▇ Trust]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
WCS Trustee ▇▇▇▇▇▇ ▇▇▇▇▇ Irr.
Family Trust
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Common Units
--------------------------------------------------
Class C Class D
---------------------- ----------------------
Capital Capital
No. Contributions No. Contributions
----- ------------- ----- -------------
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund III, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund III, L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The 1995 Harkins Gift Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[▇▇▇▇▇ Trust]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
WCS Trustee ▇▇▇▇▇▇ ▇▇▇▇▇ Irr.
Family Trust
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
49
Preferred Units Common Units
---------------------- --------------------------------------------------
Class A Class B
---------------------- -----------------------
Capital Capital Capital
No. Contributions No. Contributions No. Contributions
----- ------------- ----- ------------- ----- --------------
▇▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Gift Trust
▇▇▇▇▇ ▇▇▇▇▇ Gift Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1995 Trust
CIBC WG Argosy Merchant
Fund 2, L.L.C.
TOTAL
Common Units
--------------------------------------------------
Class C Class D
---------------------- ----------------------
Capital Capital
No. Contributions No. Contributions
----- ------------- ----- -------------
▇▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Gift Trust
▇▇▇▇▇ ▇▇▇▇▇ Gift Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1995 Trust
CIBC WG Argosy Merchant
Fund 2, L.L.C.
TOTAL
* Amounts represent the fair market value of property contributed.
50
AMENDMENT 1. TO THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
THIS AMENDMENT 1. TO THIRD AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP (this "Amendment") is made as of November 6, 1997 by
TransWestern Communications Company, as general partner (the "General Partner")
of TransWestern Limited Partnership, L.P., a Delaware limited partnership (the
"Partnership").
1. Section 9.2 of the Partnership's Third Amended and
Restated Agreement of Limited Partnership, pursuant to the powers of attorney
granted by each of the Partnership's limited partners to the General Partner,
vests in the General Partner the sole authority and discretion to change the
name of the Partnership. Pursuant to such authority, the General Partner
hereby amends the Partnership Agreement as follows:
a. The cover page and the preamble to the
Partnership Agreement are each amended hereby by replacing the references to
"TransWestern Publishing Company, L.P." and "October 1, 1997" with
"TransWestern Holdings, L.P." and "November 6, 1997", respectively.
b. Section 2.2 of the Partnership is amended
hereby by replacing the reference to "TransWestern Publishing Company, L.P."
therein with "TransWestern Holding, L.P.".
2. Except as provided in paragraph 1, this Amendment
shall not constitute an amendment or waiver of any provision of the Partnership
Agreement, which shall continue and remain in full force and effect in
accordance with its terms.
3. All questions concerning the construction, validity
and interpretation of this Amendment shall be governed by and construed in
accordance with the internal law, and not the law of conflicts, of Delaware.
4. This Amendment shall be effective upon the execution
hereof and the filing by the General Partner of the certificate of amendment
reflecting the foregoing amendments with the State of Delaware and each of the
States where the Partnership is qualified to conduct business as of the date
hereof.
51
IN WITNESS WHEREOF, this Amendment has been entered into as of
the date first written above.
TRANSWESTERN COMMUNICATIONS COMPANY, INC.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Vice President