EXHIBIT 10.48
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AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
MOBILE SATELLITE VENTURES LP
November 12, 2004
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINED TERMS.......................................................2
Section 1.1 DEFINITIONS.............................................2
Section 1.2 HEADINGS................................................8
Section 1.3 INTERPRETATION..........................................8
ARTICLE II CONTINUATION AND TERM..............................................8
Section 2.1 CONTINUATION............................................8
Section 2.2 NAME....................................................9
Section 2.3 TERM....................................................9
Section 2.4 REGISTERED AGENT AND OFFICE.............................9
Section 2.5 PRINCIPAL PLACE OF BUSINESS.............................9
Section 2.6 QUALIFICATION IN OTHER JURISDICTIONS....................9
Section 2.7 AGREEMENT...............................................9
ARTICLE III PURPOSE AND POWERS OF THE PARTNERSHIP.............................9
Section 3.1 PURPOSE.................................................9
Section 3.2 POWERS OF THE PARTNERSHIP..............................10
Section 3.3 LIMITATIONS ON PARTNERSHIP POWERS......................10
ARTICLE IV CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS........................10
Section 4.1 CAPITAL CONTRIBUTIONS..................................10
Section 4.2 STATUS OF CAPITAL CONTRIBUTIONS........................10
Section 4.3 LIMITED PARTNERSHIP INTEREST...........................11
Section 4.4 CAPITAL ACCOUNTS.......................................11
ARTICLE V PARTNERS...........................................................11
Section 5.1 POWERS OF LIMITED PARTNERS.............................11
Section 5.2 NO GENERAL PARTNER LIABILITY...........................12
Section 5.3 ACTIONS OF THE LIMITED PARTNERS........................12
Section 5.4 PARTITION..............................................12
Section 5.5 WITHDRAWAL.............................................12
Section 5.6 REMOVAL OF THE GENERAL PARTNER BY LIMITED PARTNERS.....12
Section 5.7 BANKRUPTCY, RESIGNATION, WITHDRAWAL, ETC. OF GENERAL
PARTNER................................................12
ARTICLE VI MANAGEMENT........................................................12
Section 6.1 MANAGEMENT BY THE GENERAL PARTNER......................12
Section 6.2 RESTRICTIONS...........................................13
Section 6.3 GENERAL PARTNER'S TIME.................................13
Section 6.4 NO LIABILITY; INDEMNITY................................13
Section 6.5 RELIANCE BY THIRD PARTIES..............................14
Section 6.6 GENERAL AUTHORITY......................................14
Section 6.7 LIMITED LIABILITY......................................14
Section 6.8 SPECIAL PURPOSE PROVISION..............................14
Section 6.9 GRANT OF POWER OF ATTORNEY.............................14
Section 6.10 TERMS OF GRANT.........................................15
Section 6.11 SEPARATE FORM..........................................15
ARTICLE VII ALLOCATIONS......................................................15
Section 7.1 PROFITS AND LOSSES.....................................15
Section 7.2 SPECIAL ALLOCATIONS....................................16
Section 7.3 ALLOCATION RULES.......................................17
Section 7.4 SECTION 704(C) OF THE CODE.............................18
Section 7.5 UNCERTAINTIES IN ALLOCATIONS AND DISTRIBUTIONS.........18
ARTICLE VIII DISTRIBUTIONS...................................................19
Section 8.1 DISTRIBUTIONS..........................................19
Section 8.2 DISTRIBUTIONS TO PAY TAXES.............................19
Section 8.3 DISSOLUTION............................................19
Section 8.4 WITHHOLDING TAXES......................................19
Section 8.5 LIMITATIONS ON DISTRIBUTION............................20
Section 8.6 CAPITAL PROCEEDS.......................................20
ARTICLE IX TRANSFERS; PARTNERSHIP REGISTRATION RIGHTS........................20
Section 9.1 INCORPORATION OF SECTION 8 OF THE STOCKHOLDERS'
AGREEMENT..............................................20
Section 9.2 PARTNERSHIP REGISTRATION RIGHTS........................20
ARTICLE X BOOKS AND RECORDS..................................................21
Section 10.1 BOOKS, RECORDS AND FINANCIAL STATEMENTS................21
Section 10.2 ACCOUNTING METHOD......................................22
Section 10.3 AUDIT..................................................23
ARTICLE XI TAX MATTERS.......................................................23
Section 11.1 TAX MATTERS PARTNER....................................23
Section 11.2 ELECTION...............................................23
Section 11.3 TAXATION AS PARTNERSHIP................................23
ARTICLE XII LIABILITY, EXCULPATION AND INDEMNIFICATION.......................24
Section 12.1 LIABILITY..............................................24
Section 12.2 EXCULPATION............................................24
Section 12.3 INDEMNIFICATION........................................24
Section 12.4 EXPENSES...............................................25
Section 12.5 INSURANCE..............................................25
Section 12.6 OUTSIDE BUSINESSES.....................................25
ARTICLE XIII DISSOLUTION, LIQUIDATION AND TERMINATION........................26
Section 13.1 DISSOLUTION............................................26
Section 13.2 NOTICE OF DISSOLUTION..................................26
Section 13.3 LIQUIDATION............................................26
Section 13.4 TERMINATION............................................27
Section 13.5 CLAIMS OF THE LIMITED PARTNERS.........................27
ARTICLE XIV AMENDMENTS.......................................................27
Section 14.1 AMENDMENTS.............................................27
ARTICLE XV MISCELLANEOUS.....................................................27
Section 15.1 FURTHER ASSURANCES.....................................27
Section 15.2 NOTICES................................................27
Section 15.3 FAILURE TO PURSUE REMEDIES.............................28
Section 15.4 CUMULATIVE REMEDIES....................................28
Section 15.5 BINDING EFFECT.........................................28
Section 15.6 SEVERABILITY...........................................29
Section 15.7 COUNTERPARTS...........................................29
Section 15.8 INTEGRATION............................................29
Section 15.9 CONFIDENTIALITY........................................29
Section 15.10 GOVERNING LAW; CONSENT TO JURISDICTION.................30
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
MOBILE SATELLITE VENTURES LP
THIS LIMITED PARTNERSHIP AGREEMENT OF MOBILE SATELLITE
VENTURES LP (the "PARTNERSHIP"), dated as of November 12, 2004, is entered into
by and among Mobile Satellite Ventures GP Inc., a Delaware corporation (the
"GENERAL PARTNER"), and each of the limited partners whose names are set forth
on the Schedule of Limited Partners attached as SCHEDULE I hereto (each
individually, a "LIMITED PARTNER," and collectively, together with any
Additional Limited Partners (as hereinafter defined) hereafter admitted to the
Partnership in accordance with this Agreement, the "LIMITED PARTNERS" and
together with the General Partner, the "PARTNERS.").
WHEREAS, Motient Corporation, a Delaware corporation, as sole
member, formed a limited liability company (the "LLC") pursuant to the Delaware
Limited Liability Company Act (6 Del. C. ss. 18-101, et seq., the "LLC ACT") by
filing a Certificate of Formation on June 16, 2000 with the SecretarY of State
of Delaware and entering into a limited liability company operating agreement
dated as of June 16, 2000; and
WHEREAS, the operating agreement of the LLC was amended and
restated effective as of June 29, 2000 by a certain First Amended and Restated
Limited Liability Company Agreement (the "LLC AGREEMENT"); and
WHEREAS, the members of the LLC and the General Partner
approved the conversion of the LLC to a Delaware limited partnership in
accordance with the terms and conditions set forth in the LLC Agreement and
pursuant to Section 18-216 of the LLC Act and Section 17-217 of the Delaware
Act, whereupon the members of the LLC and certain other Persons (as hereinafter
defined) became Limited Partners of the Partnership and Mobile Satellite
Ventures GP Inc. was admitted as general partner of the Partnership; and
WHEREAS, the General Partner, executed, delivered and filed
(or caused to be delivered and filed) the Certificate of Conversion and the
Certificate of Limited Partnership pursuant to the terms of Section 17-204 of
the Delaware Act on November 26, 2001; and
WHEREAS, certain of the parties hereto are parties to that
certain Limited Partnership Agreement of the Partnership, dated as of November
26, 2001, as amended on August 21, 2003 and April 2, 2004 (the "NOVEMBER 2001
PARTNERSHIP AGREEMENT"); and
WHEREAS, the parties hereto wish to amend and restate the
November 2001 Partnership Agreement to, among other things, (i) provide that the
Partnership shall have one class of limited partnership interests; (ii)
eliminate all provisions relating to the class A preferred units of limited
partnership of the Partnership; and (iii) make certain other changes as provided
herein.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Partners hereby
agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 DEFINITIONS. Unless the context otherwise
requires, the terms defined in this Article I shall, for the purposes of this
Agreement, have the meanings herein specified.
"ADDITIONAL LIMITED PARTNER" means a Person admitted to the
Partnership as a Limited Partner pursuant to Section 8.4 of the Stockholders'
Agreement.
"ADJUSTED CAPITAL ACCOUNT" means, with respect to any Limited
Partner, the balance in such Limited Partner's Capital Account, increased by
such Limited Partner's share of the Minimum Gain and "partner nonrecourse debt
minimum gain" (as defined in Treasury Regulations Section 1.704-2(i)(2)).
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any
Limited Partner, the deficit balance, if any, in such Limited Partner's Capital
Account as of the end of the relevant Fiscal Year, after giving effect to the
following adjustments:
(i) Credit to such Capital Account any amounts which such
Limited Partner is obligated to restore or is deemed to be obligated to
restore pursuant to the penultimate sentences of Treasury Regulations
▇▇.▇▇. 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in
Treasury Regulations ss. 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Treasury Regulations ss. 1.704-1(b)(2)(ii)(d) anD
shall be interpreted consistently therewith.
"AFFILIATE" means with respect to a specified Person, any
Person that directly or indirectly controls, is controlled by, or is under
common control with, the specified Person. As used in this definition, the term
"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.
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"AGREEMENT" means this Amended and Restated Limited
Partnership Agreement of the Partnership, as amended, modified, supplemented or
restated from time to time.
"ANCILLARY AGREEMENTS" has the meaning set forth in the
Investment Agreement.
"BANKRUPTCY" means, with respect to any Person, such Person
shall generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors, or any proceeding shall be instituted
by or against such Person seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or unstayed
for a period of sixty (60) days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for it,
or for any substantial part of its property) shall occur; or such Person shall
take any action to authorize any of the actions set forth above.
"CAPITAL ACCOUNT" means, with respect to any Limited Partner,
the account maintained for such Limited Partner in accordance with the
provisions of Section 4.4 hereof.
"CAPITAL CONTRIBUTION" means, with respect to any Limited
Partner, any contributions made to the Partnership pursuant to Section 4.1
hereof by such Limited Partner with respect to the Limited Partnership Interest
in the Partnership now or hereafter held or purchased by such Limited Partner.
"CAPITAL EVENT" means (a) a sale, transfer, or other
disposition of all or substantially all the assets of the Partnership or (b) any
dissolution and liquidation of the Partnership.
"CAPITAL PROCEEDS" means the proceeds received (or in the case
of a distribution of the Partnership in kind deemed received if the property
were sold for its Gross Asset Value) by the Partnership from a Capital Event but
excluding any amounts reasonably determined by the General Partner to be
necessary to provide a reasonable reserve for working-capital needs or any other
contingencies of the Partnership.
"CERTIFICATE OF CONVERSION" means the Certificate of
Conversion of the Partnership and any and all amendments thereto and
restatements thereof filed with the office of the Secretary of State of the
State of Delaware pursuant to the Delaware Act.
"CERTIFICATE OF LIMITED PARTNERSHIP" means the Certificate of
Limited Partnership of the Partnership and any and all amendments thereto and
restatements thereof filed on behalf of the Partnership with the office of the
Secretary of State of the State of Delaware pursuant to the Delaware Act.
3
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time, or any corresponding federal tax statute enacted after the
date of this Agreement. A reference to a specific section (ss.) of the Code
refers not only to such specific section but also to any corresponding provisioN
of any federal tax statute enacted after the date of this Agreement, as such
specific section or corresponding provision is in effect on the date of
application of the provisions of this Agreement containing such reference.
"COMPETING BUSINESSES" has the meaning set forth in Section
12.6 of this Agreement.
"CONFIDENTIAL INFORMATION" has the meaning set forth in
Section 15.9 of this Agreement.
"CONTROL PARTY" means (i) an Affiliate that has direct or
indirect majority voting control of a Limited Partner, or (ii) an Affiliate that
has a majority of its voting interests held, directly or indirectly, by a
Limited Partner or by Persons that have direct or indirect voting control of a
Limited Partner.
"COVERED PERSON" means any Limited Partner, any Affiliate of
a Limited Partner or any officers, directors, representatives, shareholders,
partners, employees, representatives or agents of a Limited Partner or their
respective Affiliates, or any directors, officers, shareholders, partners,
employees, representatives or agents of the Partnership or its Affiliates or any
liquidating trustee under Section 13.3.
"DELAWARE ACT" means the Delaware Revised Uniform Limited
Partnership Act, 6 Del. C. ss. 17-101, et seq., as amended from time to time.
"DEPRECIATION" means, for each Fiscal Year or other period, an
amount equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such Fiscal Year or other period;
provided, however, that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such Fiscal
Year or other period, Depreciation shall be an amount that bears the same ratio
to such beginning Gross Asset Value as the federal income tax depreciation,
amortization or other cost recovery deduction with respect to such asset for
such Fiscal Year or other period bears to such beginning adjusted tax basis; and
provided further, that if the federal income tax depreciation, amortization or
other cost recovery deduction for such Fiscal Year or other period is zero,
Depreciation shall be determined with reference to such beginning Gross Asset
Value using any reasonable method selected by the General Partner.
"FISCAL YEAR" means (i) the period commencing upon the
formation of the Partnership and ending on December 31, 2001, (ii) any
subsequent twelve (12) month period commencing on January 1 and ending on
December 31, or (iii) any portion of the period described in clause (ii) of this
sentence for which the Partnership is required to allocate Profits, Losses and
other items of Partnership income, gain, loss or deduction pursuant to Article
VII hereof.
"GENERAL PARTNER" has the meaning set forth in the opening
paragraph of this Agreement.
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"GROSS ASSET VALUE" means, with respect to any asset, such
asset's adjusted basis for federal income tax purposes, except as follows:
(i) the initial Gross Asset Value of any asset contributed by
a Limited Partner to the Partnership shall be the gross fair market
value of such asset, as agreed to by the contributing Limited Partner
and the General Partner;
(ii) the Gross Asset Value of all Partnership assets shall be
adjusted to equal their respective gross fair market values, as
determined in good faith by the General Partner, as of the following
times: (a) the acquisition of an additional interest in the Partnership
by any new or existing Limited Partner or any other adjustment in the
Percentage Interests of the Limited Partners; (b) the distribution by
the Partnership to a Limited Partner of more than a de minimis amount
of Partnership assets as consideration for such Limited Partner's
Limited Partnership Interest; and (c) the liquidation of the
Partnership within the meaning of Treasury Regulations ss.
1.704-1(b)(2)(ii)(g); and
(iii) the Gross Asset Value of any Partnership asset
distributed to any Limited Partner shall be the gross fair market value
of such asset on the date of distribution, as determined by the General
Partner.
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
clause (i) or (ii) above, such Gross Asset Value shall thereafter be adjusted by
the Depreciation taken into account with respect to such asset for purposes of
computing Profits and Losses.
"INITIAL PUBLIC OFFERING" means the closing of a firm
commitment underwritten public offering of equity interests in the Partnership
or its successor.
"INVESTORS" means each Limited Partner listed on SCHEDULE I
hereto as an Investor, each other Person admitted as an Investor after the date
hereof and, subject to Section 8.2(i) of the Stockholders' Agreement, any Person
acquiring all or part of the Limited Partnership Interest of an Investor that is
admitted as a Limited Partner as provided herein.
"INVESTMENT AGREEMENT" means that certain First Amended and
Restated Investment Agreement, dated as of August 8, 2003, among the MSV LP,
Motient Corporation, TMI Communications Delaware, Limited Partnership and the
investors named therein, as amended, restated, supplemented or revised from time
to time.
"LIMITED INVESTOR" means ▇▇▇▇ Ventures VII, LLC and its
Affiliates that may own Limited Partnership Interests.
"LIMITED PARTNER" has the meaning set forth in the opening
paragraph of this Agreement.
"LIMITED PARTNERSHIP INTEREST" means a Limited Partner's
aggregate rights in the Partnership in accordance with this Agreement and the
Delaware Act, including such Limited Partner's right to share in the Profits and
Losses of the Partnership and right to receive distributions of the
Partnership's assets.
5
"LLC" has the meaning set forth in the first "Whereas" clause.
"LLC ACT" has the meaning set forth in the first "Whereas"
clause.
"LLC AGREEMENT" has the meaning set forth in the second
"Whereas" clause.
"MINIMUM GAIN" has the meaning set forth in Treasury
Regulations ▇▇.▇▇. 1.704-2(b)(2) and 1.704-2(d). "NOVEMBER
2001 PARTNERSHIP AGREEMENT" has the meaning set forth in the
fifth "Whereas" clause.
"PARTNER" has the meaning set forth in the opening paragraph
of this Agreement.
"PARENT TRANSFER/DRAG ALONG AGREEMENT" means that certain
Second Amended and Restated Parent Transfer/Drag Along Agreement, dated as of
the date hereof, by and among the Partnership and the parent entities and their
respective subsidiaries named therein.
"PARTNERSHIP" has the meaning set forth in the opening
paragraph of this Agreement.
"PERCENTAGE INTEREST" means with respect to any Limited
Partner, the ratio (expressed as a percentage) of the Units actually held by
such Limited Partner as of the date of determination to the aggregate Units
actually held by all Limited Partners on such date, and shall be reflected on
SCHEDULE I in accordance with Section 2.1(d). For purposes of voting and
providing consents under this Agreement and for purposes of Section 8 of the
Stockholders' Agreement, but not, for the avoidance of doubt, for purposes of
distributions of cash or tax and other economic rights under this Agreement,
"PERCENTAGE INTERESTS" means, with respect to each Limited Partner, the ratio
(expressed as a percentage) of the Units held by such Limited Partner as of the
date of determination to all Units held by all Limited Partners.
"PERSON" means any individual, corporation, association,
partnership (general or limited), joint venture, trust, estate, limited
liability company, or other legal entity or organization.
"PLEDGE AGREEMENT" means that certain Pledge and Guarantee
Agreement, dated as of November 26, 2001, by and among TMI Communications and
Company, Limited Partnership, TMI Communications Delaware, Limited Partnership
and the other parties thereto, as amended, supplemented or revised from time to
time.
"PROFITS" and "LOSSES" means, for each Fiscal Year an amount
equal to the Partnership's taxable income or loss for such Fiscal Year,
determined in accordance with ss. 703(a) of the Code (but including in taxable
income or loss, for this purpose, all items of income, gain, loss or deductioN
required to be stated separately pursuant to ss. 703(a)(1) of the Code), with
the following adjustments:
6
(i) any income of the Partnership exempt from federal income
tax and not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be added to such taxable income or
loss;
(ii) any expenditures of the Partnership described in ss.
705(a)(2)(B) of the Code (or treated as expenditures described in ss.
705(a)(2)(B) of the Code pursuant to Treasury Regulations ss.
1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing
Profits or Losses pursuant tO this definition shall be subtracted from
such taxable income or loss;
(iii) in the event the Gross Asset Value of any Partnership
asset is adjusted in accordance with clause (ii) or (iii) of the
definition of "Gross Asset Value" above, the amount of such adjustment
shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Profits or Losses;
(iv) gain or loss resulting from any disposition of any asset
of the Partnership with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference to the Gross
Asset Value of the asset disposed of, notwithstanding that the adjusted
tax basis of such asset differs from its Gross Asset Value; and
(v) in lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable income
or loss, there shall be taken into account Depreciation for such Fiscal
Year or other period, computed in accordance with the definition of
"Depreciation" above.
Any items of income, gain, deduction and loss included within Profits and Losses
shall be determined in a manner consistent with Section 704(b) of the Code and
the Treasury Regulations thereunder.
"REQUIRED MAJORITY" means Limited Partners holding at least a
majority of the Percentage Interests held by the Limited Partners entitled to
vote on any matter as of the date of determination.
"REGULATORY ALLOCATIONS" has the meaning set forth in Section
7.2(f).
"STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement
by and among General Partner and the Limited Partners.
"TAX MATTERS PARTNER" has the meaning set forth in Section
11.1.
"TREASURY REGULATIONS" means the income tax regulations,
including temporary regulations, promulgated under the Code, as such regulations
may be amended from time to time (including corresponding provisions of
succeeding regulations).
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"UNIT" means a unit of interest in the partnership with the
rights and privileges specified herein for Units and representing a Percentage
Interest equal to one divided by the number Units then held by all Limited
Partners.
"VOTING AGREEMENT" means that certain Voting Agreement, dated
as of the date of this Agreement, by and among Spectrum Space IV Parallel, Inc.,
Spectrum Space Equity Investors IV, Inc., Spectrum Space IV Managers, Inc.,
Columbia Space (QP), Inc., Columbia Space (AI), Inc., Columbia Space Partners,
Inc., Telcom Satellite Ventures II, Inc., Telcom Satellite Ventures Inc., TMI
Communications Delaware, Limited Partnership, and MSV Investors, LLC.
Section 1.2 HEADINGS. The headings and subheadings in this
Agreement are included for convenience and identification only and are in no way
intended to describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provision hereof.
Section 1.3 INTERPRETATION. Throughout this Agreement, nouns,
pronouns and verbs shall be construed as masculine, feminine, neuter, singular
or plural, whichever shall be applicable. All references herein to "Articles",
"Sections" and clauses shall refer to corresponding provisions of this
Agreement, unless otherwise specified.
ARTICLE II
CONTINUATION AND TERM
Section 2.1 CONTINUATION.
(a) The Partnership shall continue as a limited partnership under and
pursuant to the provisions of the Delaware Act and the Partners agree that the
rights, duties and liabilities of the Partners shall be as provided in the
Delaware Act, except as otherwise provided herein.
(b) As of the date hereof, the Partnership shall have one class of
limited partnership interests and such class of interests shall be designated as
"Units."
(c) Mobile Satellite Ventures GP Inc. shall act as the general partner
of the Partnership until such time as a Person is admitted as a successor to the
General Partner or as an additional general partner.
(d) The name and mailing address of each Limited Partner, the number of
Units issued to such Limited Partner, the Percentage Interests represented
thereby, and the amount of each Limited Partner's Capital Account as of the date
of this Agreement is listed on SCHEDULE I attached hereto. The General Partner
shall update SCHEDULE I from time to time as necessary to reflect accurately the
information therein, including updates to reflect new issuances of Limited
Partnership Interests or assignments and transfers of all or any part of a
Limited Partner's Limited Partnership Interest, in each case, in accordance with
this Agreement and the Investment Agreement and indicating the name and address
8
of such new Limited Partner, transferee or assignee along with an accurate
description of the Limited Partnership Interest so issued transferred or
assigned, including whether such new Limited Partner, transferee or assignee has
been or will be admitted to the Partnership as a substituted Limited Partner or
an Additional Limited Partner, as the case may be, and provide copies of the
same to the Partners. Any amendment or revision to SCHEDULE I made in accordance
with this Agreement and the Investment Agreement shall not be deemed an
amendment to this Agreement. Any reference in this Agreement to SCHEDULE I shall
be deemed to be a reference to SCHEDULE I as amended and in effect from time to
time.
Section 2.2 NAME. The name of the limited partnership formed
by this Agreement and by the filing of the Certificate of Conversion and the
Certificate of Limited Partnership is "Mobile Satellite Ventures LP." The
business of the Partnership may be conducted upon compliance with all applicable
laws under any other name designated, from time to time, by the General Partner.
Section 2.3 TERM. The term of the Partnership commenced on the
date of the filing of the certificate of formation of the LLC in the office of
the Secretary of State of the State of Delaware and shall continue until
dissolved in accordance with this Agreement, or if sooner, in accordance with
the Delaware Act.
Section 2.4 REGISTERED AGENT AND OFFICE. The Partnership's
registered agent and office in Delaware shall be CT Corporation System,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇. At any time, the General Partner may designate
another registered agent and/or registered office, provided such new designation
shall not adversely affect any Partner.
Section 2.5 PRINCIPAL PLACE OF BUSINESS. The principal place
of business of the Partnership shall be at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇. At any time, the General Partner may change the location of the
Partnership's principal place of business.
Section 2.6 QUALIFICATION IN OTHER JURISDICTIONS. The General
Partner shall cause the Partnership to be qualified, formed or registered under
assumed or fictitious name statutes or similar laws in any jurisdiction in which
the Partnership transacts business in which such qualification, formation or
registration is required or desirable.
Section 2.7 AGREEMENT. This Agreement completely amends,
restates and supersedes the November 2001 Partnership Agreement.
ARTICLE III
PURPOSE AND POWERS OF THE PARTNERSHIP
Section 3.1 PURPOSE. The Partnership is formed for the object
and purpose of, and the nature of the business to be conducted and promoted by
the Partnership is, engaging in any lawful act or activity in which limited
partnerships may be engaged under the Delaware Act and engaging in any and all
activities necessary, convenient, desirable or incidental to the foregoing.
9
Section 3.2 POWERS OF THE PARTNERSHIP. The Partnership shall
have the power and authority to take any and all actions necessary, appropriate,
proper, advisable, convenient or incidental to or for the furtherance of the
purposes set forth in Section 3.1.
Section 3.3 LIMITATIONS ON PARTNERSHIP POWERS. Notwithstanding
the foregoing provisions of Section 3.2, the Partnership shall not do business
in any jurisdiction that would jeopardize the limitation on liability afforded
to the Limited Partners under the Delaware Act or this Agreement in such
jurisdiction or elsewhere.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
Section 4.1 CAPITAL CONTRIBUTIONS.
(a) The General Partner shall not be required to make any Capital
Contribution to the capital of the Partnership, shall have no Capital Account
and shall not acquire a Percentage Interest or any Units, but shall nonetheless
be obligated to serve as the general partner of the Partnership pursuant to
Section 17-401(a) of the Delaware Act.
(b) Capital Contributions shall be paid in the manner provided in the
Investment Agreement or a subscription agreement, as the case may be. Subject to
Section 8.1 of the Stockholders' Agreement, the Partnership may admit Persons as
Limited Partners and issue Units and Limited Partnership Interests to such
Persons without obligating such Persons to make Capital Contributions.
(c) No Limited Partner shall be required or permitted to contribute
additional capital to the Partnership except that, subject to the pre-emptive
rights and other applicable provisions of Section 8 of the Stockholders'
Agreement incorporated herein, a Limited Partner shall be permitted to make
additional Capital Contributions pursuant to a subscription agreement approved
by the General Partner and the Required Majority.
Section 4.2 STATUS OF CAPITAL CONTRIBUTIONS.
(a) Except as otherwise provided in this Agreement, no Limited Partner
shall demand or receive a return of its Capital Contribution and no return of a
Limited Partner's Capital Contribution shall be made hereunder if such
distribution would violate applicable state law. Under circumstances requiring a
return of any Capital Contribution, no Limited Partner shall have the right to
demand or receive property other than cash, except as may be specifically
provided in this Agreement.
(b) No Limited Partner shall receive any interest, salary or drawing
with respect to its Capital Contribution or its Capital Account or for services
rendered on behalf of the Partnership or otherwise in its capacity as a Limited
Partner, except as otherwise specifically provided in this Agreement. Nothing
herein shall preclude any Limited Partner from serving the Partnership in
another capacity, including as an employee, contractor or consultant, or
otherwise dealing with the Partnership in its individual capacity and receiving
compensation or consideration therefor.
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(c) Except as otherwise provided herein or by applicable state law, the
Partners shall be liable only to make Capital Contributions as provided in
Section 4.1, and no Partner shall be required to lend any funds to the
Partnership nor to make any additional Capital Contributions. No Partner shall
have any personal liability for the repayment of any Capital Contribution of any
other Limited Partner.
Section 4.3 LIMITED PARTNERSHIP INTEREST. A Limited
Partnership Interest shall for all purposes be personal property. A Limited
Partner has no interest in specific Partnership property.
Section 4.4 CAPITAL ACCOUNTS.
(a) An individual Capital Account shall be established and maintained
for each Limited Partner. Each Limited Partner's Capital Account as of the date
of this Agreement is reflected on SCHEDULE I hereto.
(b) The Capital Account of each Limited Partner shall be maintained in
accordance with the following provisions:
(i) to such Limited Partner's Capital Account there shall be
credited such Limited Partner's Capital Contribution, such Limited
Partner's distributive share of Profits and items of gross income and
gain and the amount of any Partnership liabilities that are assumed by
such Limited Partner or that are secured by any Partnership assets
distributed to such Limited Partner;
(ii) to such Limited Partner's Capital Account there shall be
debited the amount of cash and the Gross Asset Value of any Partnership
assets distributed to such Limited Partner pursuant to any provision of
this Agreement, such Limited Partner's distributive share of Losses and
items of gross deduction and loss and the amount of any liabilities of
such Limited Partner that are assumed by the Partnership or that are
secured by any property contributed by such Limited Partner to the
Partnership; and
(iii) in determining the amount of any liability for purposes
of this Subsection 4.4(b), there shall be taken into account ss. 752(c)
of the Code and anY other applicable provisions of the Code and the
Treasury Regulations.
ARTICLE V
PARTNERS
Section 5.1 POWERS OF LIMITED PARTNERS. Except as otherwise
specifically provided by this Agreement or required by the Delaware Act, no
Person other than the General Partner, including any Limited Partner acting in
its capacity as such, (a) shall have any right to "participate in the control of
the business" of the Partnership as such phrase is construed under Section
17-303(b) of the Delaware Act, (b) shall have the power to be an agent of the
Partnership or (c) shall take any action or exercise any right with respect to
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the Partnership not permitted to be taken or exercised by a Limited Partner
pursuant to this Agreement and Section 17-303 of the Delaware Act. In no event
shall any Person, other than the General Partner, have any right, power or
authority (1) to transact any business in the name of the Partnership, (2) to
act for, or on behalf of, the Partnership or (3) to bind the Partnership, such
powers being vested solely and exclusively in the General Partner.
Section 5.2 NO GENERAL PARTNER LIABILITY. The General Partner
shall have no personal liability for the repayment of the Capital Contributions
of the Limited Partners.
Section 5.3 ACTIONS OF THE LIMITED PARTNERS. Any action of the
Partnership requiring the consent or approval of the Limited Partners, or any
percentage thereof, shall be taken by a consent in writing signed by Limited
Partners holding not less than the Percentage Interests necessary to take such
action pursuant to this Agreement.
Section 5.4 PARTITION. Each Limited Partner waives any and all
rights that it may have to maintain an action for partition of the Partnership's
property.
Section 5.5 WITHDRAWAL. A Limited Partner may not withdraw
from the Partnership prior to the dissolution and winding up of the Partnership
except as set forth in this Agreement or the Investment Agreement. A Limited
Partner attempting to resign in violation of this Agreement shall not be
entitled to receive any distribution and shall not otherwise be entitled to
receive the fair value of its Limited Partnership Interest except as otherwise
expressly provided for in this Agreement. The withdrawal of any Limited Partner
for any reason shall not result in the dissolution of the Partnership.
Section 5.6 REMOVAL OF THE GENERAL PARTNER BY LIMITED
PARTNERS. A Required Majority of the Limited Partners may at any time effect the
removal of the General Partner with or without cause by delivering to the
General Partner a notice of removal, such removal to become effective as
provided in such notice of removal.
Section 5.7 BANKRUPTCY, RESIGNATION, WITHDRAWAL, ETC. OF
GENERAL PARTNER. After the resignation, withdrawal, dissolution, Bankruptcy or
insolvency of the General Partner which would otherwise result in the
dissolution of the Partnership by operation of law, the Partnership will be
dissolved, unless, within ninety (90) days after the date of such resignation,
withdrawal, dissolution, Bankruptcy, or insolvency, the Required Majority agree
in writing to continue the business of the Partnership and to the appointment,
effective as of the date of withdrawal or removal, of one or more successor
General Partners.
ARTICLE VI
MANAGEMENT
Section 6.1 MANAGEMENT BY THE GENERAL PARTNER. Except as
otherwise expressly provided herein and subject to the restrictions contained in
Sections 5.1, 5.6. 5.7, 6.2 and 6.6 hereof, management of the Partnership and
control of its business shall be vested solely in the General Partner. Except
for situations in which the approval of the Limited Partners is required by this
Agreement, the Investment Agreement or by non-waivable provisions of applicable
law, the General Partner shall have the exclusive right, power and discretion to
manage, operate and control the Partnership, to do all things necessary or
appropriate to carry on its business and purposes, including but not limited to,
the right to incur and satisfy obligations relating to the formation and
operation of the Partnership, and to exercise all rights and powers conferred
upon the General Partner by the Delaware Act, in each case subject to the terms
and conditions set forth in this Agreement.
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The General Partner shall have the power to delegate authority
to the officers and such other employees, agents and representatives of the
Partnership as it may from time to time deem appropriate and in accordance with
this Agreement. Any delegation of authority by the General Partner to take any
action must be approved by the General Partner in the same manner as would be
required for the General Partner to take such action directly.
Unless authorized to do so by this Agreement or by the General
Partner, no attorney-in-fact, employee, Limited Partner or other agent of the
Partnership shall have any power or authority to bind the Partnership in any
way, to pledge its credit or to render it liable monetarily for any purpose.
Section 6.2 RESTRICTIONS.
(a) Notwithstanding the grant of authority to the General Partner under
Section 6.1 hereof, without the prior written consent of the Required Majority
of the disinterested Limited Partners, the General Partner shall not permit or
cause the Partnership to enter into transactions with its Limited Partners or
Affiliates of its Limited Partners except as otherwise permitted in the
Investment Agreement, this Agreement or the Ancillary Agreements.
(b) Any vacancy in the position of General Partner shall be filled by
the affirmative written consent of the Required Majority.
Section 6.3 GENERAL PARTNER'S TIME. The General Partner shall
devote all of its time to the affairs of the Partnership.
Section 6.4 NO LIABILITY; INDEMNITY. Neither the General
Partner nor any of its officers, directors, employees or agents shall be liable,
responsible or accountable to the Partnership or any Partner for any act or
omission performed or omitted pursuant to the authority granted to it hereunder
or by law, or for any claim, loss, cost, damage, liability, demand or expense
(including, without limitation, attorneys' fees), resulting from the performance
of their duties hereunder in accordance with the requirements of this Agreement;
PROVIDED, HOWEVER, that any such Person shall be liable, accountable and
responsible for their willful misconduct. The Partnership shall indemnify the
General Partner, its officers, directors, employees and agents and hold them
harmless from any claim, loss, cost, damage, liability, demand or expense
(including, without limitation, attorneys' fees and disbursements), incurred or
sustained by them by reason of any act performed by them, or any omission by
them for or on behalf of the Partnership and in furtherance of its interest,
consistent with the requirements of this Agreement, but this indemnity shall not
require the Partners to make any Capital Contribution therefor; PROVIDED,
HOWEVER, such indemnity shall not extend to the willful misconduct of any such
Person.
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Section 6.5 RELIANCE BY THIRD PARTIES. Third parties dealing
with the Partnership may rely conclusively upon the power and authority of the
General Partner to act as set forth herein and shall not be required to inquire
into or ascertain the authority of the General Partner so to act.
Section 6.6 GENERAL AUTHORITY. The General Partner shall,
except as otherwise provided in this Agreement, have all the rights and powers
and shall be subject to all the restrictions and liabilities of a general
partner in a limited partnership under the Delaware Act.
Section 6.7 LIMITED LIABILITY. Performance of one or more of
the acts described in Article V and this Article VI with respect to the Partners
shall not in any way impose any personal liability on any Limited Partner. No
Partner or, in the appropriate case, former Partner shall be liable for any
debts or obligations of the Partnership in excess of its Capital Contributions
(subject to the obligation of a Limited Partner of the Partnership under the
Delaware Act to repay any funds wrongfully distributed to it). All undistributed
cash, which would otherwise be distributed to the Limited Partners, shall be
available to creditors to satisfy the debts and obligations of the Partnership
prior to the time of actual distribution.
Section 6.8 SPECIAL PURPOSE PROVISION. The General Partner,
and any additional or substitute General Partner of the Partnership, may not be
an individual and shall at all times have as its sole purpose to act as the
General Partner of the Partnership, and shall be engaged in no other business or
have any other purpose. Any General Partner of the Partnership (a) shall have
organizational documents which conform in all material respects to the
organizational documents of the initial General Partner, and (b) shall be owned
by the Limited Partners pro rata in accordance with their Percentage Interests
from time to time, excluding for this purpose, any Limited Investor.
Section 6.9 GRANT OF POWER OF ATTORNEY. Each Limited Partner,
by its execution hereof, hereby irrevocably makes, constitutes and appoints the
General Partner as its true and lawful attorney-in-fact, with power and
authority in its name, place and stead, to make, execute, sign, acknowledge and
file on behalf of such Limited Partner and on behalf of the Partnership:
(a) Such amendments to the Certificate of Limited Partnership as the
General Partner shall reasonably deem necessary or desirable consistent with
this Agreement;
(b) All papers which may be deemed necessary or desirable by the
General Partner to effect the termination of the Partnership after its
dissolution as provided in this Agreement; and
(c) All such other instruments, documents and certificates which may
from time to time be required or permitted by the laws of any state, the United
States of America, or any political subdivision or agency thereof, to
effectuate, implement, continue and defend the valid and subsisting existence,
rights and property of the Partnership as a limited partnership and its power to
carry out its purposes as set forth in this Agreement; PROVIDED, HOWEVER, that
any decisions other than administrative ones shall first have been approved by
the applicable approvals as provided herein.
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Section 6.10 TERMS OF GRANT. The foregoing appointment in Section 6.9:
(a) Is irrevocable and shall be deemed to be a special power coupled
with an interest in recognition of the fact that the General Partner will be
relying upon such power of attorney to act as contemplated by this Agreement in
such execution, acknowledgment and filing and such other actions by the General
Partner on behalf of the Limited Partners and the Partnership;
(b) Shall survive the dissolution or Bankruptcy of any Limited Partner
granting the same and the transfer, by operation of law or otherwise, by any
Limited Partner of the whole or any part of its interest in and to the
Partnership, its capital, Profits or Losses hereunder; and
(c) May be exercised by the General Partner on behalf of any Limited
Partner by a facsimile signature of the General Partner, as attorney-in-fact for
such Limited Partner.
Section 6.11 SEPARATE FORM. The foregoing appointment is self
operative but, in confirmation thereof, each Limited Partner hereby agrees to
execute, acknowledge and deliver to the General Partner, promptly upon request
therefor by the General Partner, a power of attorney in recordable form
satisfactory to the General Partner evidencing the foregoing appointment.
ARTICLE VII
ALLOCATIONS
Section 7.1 PROFITS AND LOSSES.
(a) Except as otherwise set forth in Section 7.1(b) or Section 7.2
hereof, Profits, Losses and items of income, gain, deduction and loss of the
Partnership for each Fiscal Year shall be allocated among all Persons who were
Limited Partners during such Fiscal Year in a manner that will, as nearly as
possible, cause the Adjusted Capital Account balance of each Limited Partner (as
computed for purposes of section 704(b) of the Code) at the end of such Fiscal
Year to be equal to the sum of the amounts of cash or the Gross Asset Value of
other property distributable to such Limited Partner pursuant to Article VIII
hereof at such time assuming that all the remaining assets of the Partnership
were sold for their Gross Asset Values, all debts of the Partnership were paid
according to their terms (with any nonrecourse debt for U.S. Federal income tax
purposes deemed paid in amounts not in excess of the Gross Asset Value of the
property securing such nonrecourse debt) and the cash or other property received
therefrom was distributed to the Limited Partners in accordance with the
priorities set forth in Article VIII hereof.
(b) Notwithstanding Section 7.1(a), Losses allocated pursuant to
Section 7.1(a) to any Limited Partner for any Fiscal Year shall not exceed the
maximum amount of Losses that may be allocated to such Limited Partner without
causing such Limited Partner to have an Adjusted Capital Account Deficit at the
end of such Fiscal Year. Any Losses in excess of the limitation in this Section
15
7.1(b) shall be specially allocated solely to the other Limited Partners in
accordance with the priorities in Article VIII hereof to the maximum extent
permitted by this Section 7.1(b). In addition, Profits shall be allocated to
reverse any Losses specially allocated pursuant to the preceding sentence in
inverse order to those special loss allocations.
(c) An allocation of Profits or Losses to a Limited Partner shall be
treated as an allocation to such Limited Partner of the same share of each item
of income, gain, loss and deduction that is taken into account in computing such
Profits or Losses, as the case may be.
Section 7.2 SPECIAL ALLOCATIONS. The following special
allocations shall be made in the following order:
(a) MINIMUM GAIN CHARGEBACK. If there is a net decrease in Minimum Gain
(determined as provided in Treasury Regulations ▇▇.▇▇. 1.704-2(d) and
1.704-2(G)) during any Fiscal Year, certain items of income and gain, including
gross income or gain, shall be allocated to the Limited Partners in the amounts
and manner described in Treasury Regulations ss. 1.704-2(f). This Section 7.2(a)
is intended to comply with the minimum gain chargeback requirement relating tO
partnership non-recourse liabilities (as defined in Treasury Regulations ss.
1.704-2(f)) and shall be so interpreted.
(b) PARTNER NON-RECOURSE DEBT MINIMUM GAIN CHARGEBACK. If there is a
net decrease in Minimum Gain attributable to partner non-recourse debt
(determined pursuant to Treasury Regulations ss. 1.704-2(i)) during any Fiscal
Year, certain items of income and gain, including gross income or gain, shall be
allocateD as quickly as possible to those Limited Partners which had a share of
the Minimum Gain attributable to the partner non-recourse debt (such share
determined pursuant to Treasury Regulations ss. 1.704-1(i)(5)) in the amounts
and manner described in Treasury Regulations ss. 1.704-2(i) and (j). This
Section 7.2(b) is intended to comply with the minimum gain chargeback
requirement relating to partner non-recourse debt set forth in Treasury
Regulations ss. 1.704-2(i)(4)) anD shall be so interpreted.
(c) ALLOCATION OF NON-RECOURSE DEDUCTIONS. Deductions attributable to
obligations with respect to which a Limited Partner bears the economic risk of
loss within the meaning of Treasury Regulation ss. 1.704-2(b)(4) shall be
allocated to the Limited Partner or Limited Partners that bear the economic risk
oF loss for such debt in accordance with the requirements of Treasury Regulation
ss. 1.704-2(i)(1). "Nonrecourse Deductions" (as such term is defined in TreasurY
Regulations ▇▇.▇▇. 1.704-2(b)(1) and 1.704-2(c)) of the Partnership shall be
allocated to the Limited Partners in proportion to their Percentage Interests.
(d) QUALIFIED INCOME OFFSET. In the event any Limited Partner
unexpectedly receives any adjustments, allocations or distributions described in
Treasury Regulations ss. 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of
Partnership income and gain (consisting of a pro rata portion of each item of
Partnership income, including gross income, and gain for such year) shall be
specially allocated to such Limited Partner in an amount and manner sufficient
to eliminate, to the extent required by the Treasury Regulations, the Adjusted
16
Capital Account Deficit of such Limited Partner as quickly as possible, provided
that an allocation pursuant to this Section 7.2(d) shall be made if and only to
the extent that such Limited Partner would have an Adjusted Capital Account
Deficit after all other allocations provided for in this Article VII have been
tentatively made as if this Section 7.2(d) were not in the Agreement.
(e) GROSS INCOME ALLOCATION. In the event any Limited Partner has a
deficit Capital Account at the end of any Fiscal Year that is in excess of the
sum of (i) the amount such Limited Partner is obligated to restore and (ii) the
amount such Limited Partner is deemed to be obligated to restore pursuant to the
penultimate sentences of Treasury Regulations ▇▇.▇▇. 1.704-2(g)(1) and
1.704-2(i)(5), such Limited Partner shall be specially allocated items of
PartnersHip income and gain (consisting of a pro rata portion of each item of
Partnership income, including gross income, and gain for such year) in the
amount of such excess as quickly as possible, provided that an allocation
pursuant to this Section 7.2(e) shall be made if and only to the extent that
such Limited Partner would have a deficit Capital Account in excess of such sum
after all other allocations provided for in this Article VII have been
tentatively made as if Section 7.2(d) above and this Section 7.2(e) were not in
the Agreement.
(f) REGULATORY ALLOCATIONS. The allocations set forth in Section
7.2(a)-(e) hereof (the "REGULATORY ALLOCATIONS") are intended to comply with
certain requirements of the Treasury Regulations. It is the intent of the
Limited Partners that, to the extent possible, all Regulatory Allocations shall
be offset either with other Regulatory Allocations or with special allocations
of other items of Partnership income, gain, loss or deduction pursuant to this
Section 7.2(f). Therefore, the General Partner shall make such offsetting
special allocations of Partnership income, gain, loss and deduction in whatever
manner it determines appropriate, so that, after such offsetting allocations are
made, each Limited Partner's Capital Account balance is, to the extent possible,
equal to the Capital Account balance such Limited Partner would have if the
Regulatory Allocations were not part of the Agreement and all Partnership items
were allocated pursuant to Section 7.1. In exercising its discretion, the
General Partner shall take into account how future Regulatory Allocations
pursuant to Sections 7.2(a) and (b) hereof that, although not yet made, are
likely to offset other Regulatory Allocations previously made under Section
7.2(c) hereof.
(g) SECTION 754 ADJUSTMENT. To the extent an adjustment to the adjusted
tax basis of any Partnership asset pursuant to ss. 734(b) or 743(b) of the CodE
is required, pursuant to Treasury Regulations ss. 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), and such gain or loss shall be specially allocated to the
Limited Partners in a manner consistent with the manner in which their Capital
Accounts are required to be adjusted pursuant to such regulation.
Section 7.3 ALLOCATION RULES.
(a) For purposes of determining the Profits, Losses or any other items
allocable to any period, Profits, Losses and any such other items shall be
determined on a daily, monthly or other basis, as determined by the General
Partner using any method that is permissible under ss. 706 of the Code and thE
Treasury Regulations thereunder.
17
(b) Except as otherwise provided in this Agreement, all items of
Partnership income, gain, loss, deduction and any other allocations not
otherwise provided for shall be divided among the Limited Partners in the same
proportions as they share Profits and Losses for the Fiscal Year in question.
(c) The Limited Partners are aware of the income tax consequences of
the allocations made by this Article VII and hereby agree to be bound by the
provisions of this Article VII in reporting their shares of Partnership income
and loss for income tax purposes.
Section 7.4 SECTION 704(C) OF THE CODE.
(a) In accordance with ss. 704(c) of the Code and the Treasury
Regulations thereunder, income, gain, loss and deduction with respect to any
propertY contributed to the capital of the Partnership shall, solely for income
tax purposes, be allocated among the Limited Partners 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 initial Gross Asset Value. The Limited
Partners acknowledge that the Gross Asset Values as of the date of this
Agreement shall be established by the General Partner in accordance with
Treasury Regulations ss. 1.704-1(b)(2)(iv)(f) to reflect the Capital Accounts as
shown on SCHEDULE I hereto.
(b) In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to the definition of "Gross Asset Value" contained in Section
1.1 hereof, subsequent allocations of 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 Gross Asset Value in
the same manner as under ss. 704(c) of the Code and the Treasury RegulationS
thereunder.
(c) Allocations pursuant to this Section 7.4 shall be calculated by the
General Partner using the traditional method under Code Section 704(c) and the
Treasury Regulations promulgated thereunder.
Section 7.5 UNCERTAINTIES IN ALLOCATIONS AND DISTRIBUTIONS. In
the event there is an ambiguity regarding the application of this Article VII or
Article VIII to a particular transaction, the income and expense from such
transaction shall be allocated among the Limited Partners, and distributions of
cash in respect of such transaction shall be made, in such proportions that the
General Partner, in its reasonable discretion, deems equitable, practicable and
consistent with this Agreement, the regulations under the Code and other
applicable law; PROVIDED, HOWEVER, that no such allocation or distribution by
the General Partner shall discriminate against any Limited Partner.
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ARTICLE VIII
DISTRIBUTIONS
Section 8.1 DISTRIBUTIONS. Except as otherwise provided in
Section 8.2, Section 8.6 and Section 13.3 below, the Partnership shall make
distributions of cash to the Limited Partners in proportion to their respective
Percentage Interests at such time or times and in such amounts as the General
Partner may determine in its sole discretion.
Section 8.2 DISTRIBUTIONS TO PAY TAXES. Prior to March 15 of
the next following Fiscal Year, the General Partner shall distribute to the
Limited Partners an amount sufficient for the Limited Partners out of cash
available therefor to pay their tax liabilities which arise in respect of their
shares of cumulative net taxable income and gain of the Partnership for such
Fiscal Year, determined as set forth below by the General Partner, prior to the
making of any distributions pursuant to Sections 8.1 and 8.6 hereof. Any funds
distributed pursuant to this Section 8.2 shall reduce the amount that a Limited
Partner would otherwise receive pursuant to Sections 8.1 and 8.6. For purposes
of this Section 8.2, the amount of tax distributions made to a Limited Partner
for any Fiscal Year shall be equal to the excess, if any, of (i) the product of
(A) the excess, if any, of (I) its cumulative share of net taxable income or
gain for the current Fiscal Year and all prior Fiscal Years over (II) its
cumulative share of net taxable loss and deduction for all prior Fiscal Years
and (B) the sum of the highest rate of Canadian or United States federal, state,
provincial and local tax imposed on any Limited Partner calculated, with respect
to a Limited Partner that is a pass-through entity (for Canadian or United
States tax purposes), based on the type of taxpayer which the beneficial owners
of interests in such pass-through entity are for such year with respect to items
of the same character as such net income and gain, taking into account the
deductibility or creditability of federal, state, provincial and local taxes for
Canadian or United States federal income tax purposes and based on such
reasonable assumptions as the General Partner determines in good faith to be
appropriate (such assumptions not to include the effect of any net operating
losses or any other similar tax benefits available to a Limited Partner), over
(ii) the amount of any distributions made to such Limited Partner pursuant to
this Section 8.2 in a prior Fiscal Year.
Section 8.3 DISSOLUTION. Upon the dissolution and winding up
of the Partnership, the assets of the Partnership shall be distributed to the
Limited Partners as provided in Section 13.3 below.
Section 8.4 WITHHOLDING TAXES. All amounts withheld pursuant
to the Code or any provision of any state, local or foreign tax law with respect
to any payment, distribution or allocation to the Limited Partners shall be
treated as amounts distributed to the Limited Partners pursuant to this Article
VIII for all purposes of this Agreement. The Partnership is authorized to
withhold from distributions and to pay over to any federal, state, local or
foreign government any amounts required to be so withheld pursuant to the Code
or any provision of any other federal, state, local or foreign law and shall
allocate such amounts to those Limited Partners with respect to which such
amounts were withheld. Each Limited Partner shall indemnify the Partnership and
each of the Partners against any losses (including, without limitation, any tax
penalties and interest) incurred by reason of any failure by the Partnership to
make adequate deduction or withholding from any distribution made to such
Partner.
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Section 8.5 LIMITATIONS ON DISTRIBUTION. Notwithstanding any
provision to the contrary contained in this Agreement, the Partnership shall not
make a distribution to the Limited Partners if such distribution in the
aggregate would violate Section 17-607 of the Delaware Act or other applicable
law.
Section 8.6 CAPITAL PROCEEDS. Following the receipt by the
Partnership of Capital Proceeds, a portion of such Capital Proceeds sufficient
for each Limited Partner to pay its tax liabilities which arise in respect of
the Capital Event giving rise to such Capital Proceeds, determined as set forth
in Section 8.2 above, shall be distributed to the Limited Partners pursuant to
Section 8.2 above. If the General Partner, in its sole discretion, determines
that the Partnership shall distribute any remaining Capital Proceeds, such
Capital Proceeds shall be distributed among the Limited Partners as follows:
(a) First, to pay the creditors of the Partnership (including, for the
avoidance of doubt, any Limited Partners who may also be creditors of the
Partnership, but only to the extent of the indebtedness owed to such creditors);
and
(b) Second, to the Limited Partners in a manner to cause the cumulative
prior and current Capital Proceeds distributed to each of the Limited Partners
to be in the same relative proportions as the Limited Partners' respective
Percentage Interests.
ARTICLE IX
TRANSFERS; PARTNERSHIP REGISTRATION RIGHTS
Section 9.1 INCORPORATION OF SECTION 8 OF THE STOCKHOLDERS'
AGREEMENT. The provisions of Section 8 of the Stockholders' Agreement are hereby
incorporated by reference in their entirety in this Agreement. No Limited
Partner is a party to any other agreement, other than the Stockholders'
Agreement, the Investment Agreement, the Pledge Agreement, the Parent
Transfer/Drag Along Agreement and the Voting Agreement with respect to the
transfer or disposition of voting rights with respect to any Units.
Section 9.2 PARTNERSHIP REGISTRATION RIGHTS. Upon an Initial
Public Offering, the Partnership shall grant to each of the Limited Partners
customary registration rights in the securities of the Partnership commensurate
with such Limited Partner's Percentage Interest, PROVIDED, that such rights
shall not be exercisable in connection with the Initial Public Offering itself
and further provided that such registration rights shall be subject to the
provisions of any underwriting agreement entered into by the Partnership with
respect to such Initial Public Offering.
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ARTICLE X
BOOKS AND RECORDS
Section 10.1 BOOKS, RECORDS AND FINANCIAL STATEMENTS.
(a) At all times during the continuance of the Partnership, the General
Partner shall maintain separate books of account for the Partnership that shall
show a true and accurate record of all costs and expenses incurred, all charges
made, all credits made and received and all income derived in connection with
the operation of the Partnership business, in accordance with generally accepted
accounting principles consistently applied to the extent not inconsistent with
this Agreement. Such books of account, together with a copy of this Agreement
and of the Certificate of Limited Partnership, shall at all times be maintained
at the principal place of business of the Partnership (or at the place of
business of the Person to whom the duty to maintain these books has been
delegated in accordance herewith and identified in writing to the Limited
Partners) and shall be open to inspection and examination at reasonable times by
each Limited Partner and its duly authorized representative for any purpose
reasonably related to such Limited Partner's interest as a Limited Partner of
the Partnership.
(b) The General Partner shall prepare and maintain, or cause to be
prepared and maintained, the books of account of the Partnership. The following
financial information, which shall be certified to by an independent certified
public accountant, shall be transmitted by the General Partner to each Limited
Partner no later than three (3) months after the close of each Fiscal Year of
the Partnership:
(i) balance sheet of the Partnership as of the beginning and
close of such Fiscal Year; and
(ii) statement of Partnership profits and losses for such
Fiscal Year.
(c) The General Partner shall also prepare and maintain, or cause to be
prepared and maintained, such records and information as shall be necessary to
assist the Limited Partners in preparing and filing tax returns and other
filings pertaining to tax matters. The following information shall be
transmitted by the General Partner to each Limited Partner no later than six (6)
months after the close of each Fiscal Year of the Partnership (except that, if
requested by a Limited Partner for purposes of such Limited Partner's tax
filing, the General Partner will use its reasonable best efforts to furnish such
information to such Limited Partner within four (4) months of the close of the
Fiscal Year of the Partnership):
(i) statement of such Limited Partner's Capital Account as of
the close of such Fiscal Year, and changes therein during such Fiscal
Year; and
(ii) statement indicating such Limited Partner's share of each
item of Partnership income, gain, loss, deduction or credit for such
Fiscal Year for income tax purposes.
21
(d) For any Limited Partner that is (X) a company required to file
reports with the Securities and Exchange Commission (the "SEC") pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934, or a consolidated
subsidiary of such a company (such Limited Partner, a "PUBLIC LIMITED PARTNER")
and (Y) required by the SEC's rules and regulations as in effect from time to
time to file audited financial statements of the Partnership with the SEC, the
General Partner shall transmit the following financial information to such
Public Limited Partner, which information shall be certified to by an
independent certified public accountant, no later than fifteen (15) days before
the date on which such Public Limited Partner's annual report on Form 10-K (or
an equivalent report) is required to be filed by such Public Limited Partner
with the SEC:
(i) balance sheet of the Partnership as of the beginning and
close of such Fiscal Year; and
(ii) statement of Partnership profits and losses for such
Fiscal Year.
In addition, in any such case the General Partner will also
prepare, or cause to be prepared, audited financial statements of the
Partnership (including footnotes) meeting applicable requirements of the SEC's
rules and regulations with respect to financial statements to be included in
reports filed with the SEC, and will deliver such audited financial statements
to the Public Limited Partner no later than fifteen (15) days before the date
such Public Limited Partner is required to file the Partnership's audited
financial statements with the SEC.
(e) Within three (3) months after the close of each Fiscal Year, the
General Partner shall send to each Limited Partner a Form K-1 tax statement or
any successor form thereto.
(f) The General Partner shall prepare, or cause to be prepared, such
other statements as it deems necessary or advisable.
(g) To the extent any Public Limited Partner is required to include
audited financial statements of the Partnership in such Public Limited Partner's
filings with the SEC, the General Partner will cooperate with such Public
Limited Partner and its accountants in resolving any questions regarding such
financial statements. In this regard, the General Partner will afford such
Public Limited Partner and its accountants reasonable access to the
Partnership's books and records, and will make the Partnership's officers and
employees available to such Public Limited Partner and its accountants during
normal business hours. The General Partner will also use its reasonable best
efforts to cause representatives of the Partnership's auditors to make
themselves available during normal business hours to address questions regarding
the Partnership's financial statements and/or the audit report thereon, by such
Public Limited Partner and/or its accountants.
Section 10.2 ACCOUNTING METHOD. For both financial and tax
reporting purposes and for purposes of determining profits and losses, the books
and records of the Partnership shall be kept on the accrual method of accounting
applied in a consistent manner and shall reflect all Partnership transactions
and be appropriate for the Partnership's business.
22
Section 10.3 AUDIT. The financial statements of the
Partnership shall be audited at the end of each Fiscal Year by an independent
certified public accountant selected by the General Partner, with such audit to
be accompanied by a report of such accountant containing its opinion. The cost
of such audits will be an expense of the Partnership. A copy of any such audited
financial statements and accountant's report will be made available for
inspection by the Limited Partners.
ARTICLE XI
TAX MATTERS
Section 11.1 TAX MATTERS PARTNER. The "TAX MATTERS PARTNER" of
the Partnership for purposes of ss. 6231(a)(7) of the Code shall be the General
Partner. The Tax Matters Partner and shall have the power to manage and control,
on behalf of the Partnership, any tax audit or administrative proceeding at the
Partnership level with the Internal Revenue Service relating to the
determination of any item of Partnership income, gain, loss, deduction or credit
for federal income tax purposes; PROVIDED, HOWEVER, that the Tax Matters Partner
shall not settle any tax audit or administrative proceeding without the consent
of a majority in interest of the affected Limited Partners. The Tax Matters
Partner shall be fully indemnified by the Partnership for all expenses incurred
by the Tax Matters Partner with respect to any such tax audit or administrative
proceeding. The Tax Matters Partner may be replaced by the holders of a Required
Majority of the Limited Partnership Interests.
Section 11.2 ELECTION. Upon the reasonable request of any
Limited Partner, the Tax Matters Partner shall make, or take all reasonable
efforts to revoke, an election on behalf of the Partnership, in accordance with
ss. 754 of the Code, so as to adjust the basis of Partnership property in the
case of A distribution of property within the meaning of ss. 734 of the Code,
and in the case of a transfer of a Partnership interest within the meaning of
ss. 743 of The Code. Each Limited Partner shall, upon request of the Tax Matters
Partner, supply the information necessary to give effect to such an election.
Section 11.3 TAXATION AS PARTNERSHIP. The Partners intend that
the Partnership will be treated as a partnership for U.S. federal income tax
purposes and, to the extent permitted under applicable law, all other income tax
purposes and the Partner will take such action, as is reasonably requested by
the General Partner, to make all elections and perform all acts as are necessary
to have the Partnership treated as such.
23
ARTICLE XII
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 12.1 LIABILITY.
(a) Except as otherwise provided by the Delaware Act, the debts,
obligations and liabilities of the Partnership, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Partnership, and no Covered Person shall be obligated personally for any such
debt, obligation or liability of the Partnership solely by reason of being a
Covered Person.
(b) Except as otherwise expressly required by law, a Limited Partner,
in its capacity as Limited Partner, shall have no liability in excess of (a) the
amount of its Capital Contributions and its obligations hereunder to make
Capital Contributions, (b) its share of any assets and undistributed profits of
the Partnership, (c) its obligation to make other payments expressly provided
for in this Agreement, and (d) the amount of any distributions wrongfully
distributed to it as determined under the Delaware Act.
Section 12.2 EXCULPATION.
(a) No Covered Person shall be liable to the Partnership or any other
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed, or omitted to be performed, by such Covered Person in good
faith on behalf of the Partnership and in a manner reasonably believed to be
within the scope of authority conferred on such Covered Person by this
Agreement, except that a Covered Person shall be liable for any such loss,
damage or claim incurred by reason of such Covered Person's willful misconduct,
fraud, gross negligence or breach of this Agreement.
(b) A Covered Person shall be fully protected in relying in good faith
upon the records of the Partnership and upon such information, opinions, reports
or statements presented to the Partnership by any Person as to matters the
Covered Person reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Partnership, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to Limited Partners might properly be paid.
Section 12.3 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, each Covered
Person shall be entitled to indemnification from the Partnership for any loss,
damage, claim or liability incurred by such Covered Person by reason of any act
or omission performed, or omitted to be performed, by such Covered Person in
good faith on behalf of the Partnership and within the scope of authority
conferred on such Covered Person by this Agreement, except that no Covered
Person shall be entitled to be indemnified in respect of any loss, damage, claim
or liability incurred by such Covered Person by reason of willful misconduct,
fraud, gross negligence or breach of this Agreement with respect to such acts or
omissions; provided, however, that any indemnity under this Section 12.3 shall
be provided out of and to the extent of Partnership assets only, and no Covered
Person shall have any personal liability on account thereof.
24
(b) If any claim shall be asserted against a Covered Person, in respect
of which such Covered Person proposes to demand indemnification under this
Section 12.3 from the Partnership, such Covered Person shall notify the General
Partner to that effect with reasonable promptness after such assertion, and the
General Partner on behalf of the Partnership shall have the right to assume the
entire control of the defense or settlement of any such claim, through its own
attorneys and at its expense, and in connection therewith, such Covered Person
shall cooperate fully to make available to the Partnership and the General
Partner all information under its control relating thereto.
(c) All rights to indemnification provided herein shall survive the
termination of this Agreement and the withdrawal, removal or insolvency of any
Partner; provided, that a claim for indemnification hereunder is made by or on
behalf of the Covered Person seeking such indemnification prior to the time
distribution in liquidation of the assets of the Partnership is made pursuant to
Article XIII.
(d) The Partnership may enter into indemnity contracts with Covered
Persons and adopt written procedures pursuant to which arrangements are made for
the advancement of expenses and the funding of obligations under Section 12.4
and containing such other procedures regarding indemnification as are
appropriate.
Section 12.4 EXPENSES. To the fullest extent permitted by
applicable law, expenses (including legal fees) incurred by a Covered Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Partnership prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the Partner of an
undertaking by or on behalf of the Covered Person to repay such amount if it
shall be determined that the Covered Person is not entitled to be indemnified as
authorized in Section 12.3 hereof.
Section 12.5 INSURANCE. The Partnership may purchase and
maintain insurance, to the extent and in such amounts as the General Partner
shall deem advisable, on behalf of Covered Persons and such other Persons as the
General Partner shall determine, against any liability that may be asserted
against or expenses that may be incurred by any such Person in connection with
the activities of the Partnership or such indemnities, regardless of whether the
Partnership would have the power to indemnify such Person against such liability
under the provisions of this Agreement.
Section 12.6 OUTSIDE BUSINESSES. The parties acknowledge that
Covered Persons have and may in the future have investments in other businesses
that may be similar to or competitive with the Partnership (collectively,
"COMPETING BUSINESSES") independent of their investments in the Partnership. By
virtue of its rights under this Section, no Covered Person shall have any
obligation to the Partnership to refrain from making investments in Competing
Businesses, or otherwise engaging in any commercial activity; and neither the
Partnership nor any other Covered Person shall have any right hereunder with
25
respect to any such investments or activities undertaken by such Covered Person.
Without limitation of the foregoing, this Agreement shall not be deemed to
restrict the rights of each Covered Person to engage in or possess an interest
in other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Partnership, and the
Partnership and the other Covered Persons shall have no rights or expectancy by
virtue of such Covered Person's relationships with the Partnership, this
Agreement or otherwise in and to such independent ventures or the income or
profits derived therefrom; and the pursuit of any such venture, even if such
investment is in a Competing Business, shall not be deemed wrongful or improper
hereunder. No Covered Person shall be obligated to present any particular
investment opportunity to the Partnership even if such opportunity is of a
character that, if presented to the Partnership, could be pursued by the
Partnership, and Covered Persons shall continue to have the right to take for
their own respective account or to recommend to others any such particular
investment opportunity. The provisions of this Section 12.6 shall in no way
limit or eliminate (i) Covered Persons' duties, responsibilities and obligations
with respect to any proprietary information of the Partnership, including any
applicable duty not to disclose or use such proprietary information improperly
or obtain therefrom an improper personal benefit, or (ii) Covered Persons'
obligations under the Investment Agreement or any agreement, instrument or
obligations (other than this Agreement).
ARTICLE XIII
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 DISSOLUTION. The Partnership shall be dissolved
and its affairs shall be wound up upon the first to occur of any of the
following:
(a) consent of Limited Partners holding the Percentage Interests equal
to at least eighty percent (80%); or
(b) the occurrence of any of the events set forth in Section 5.7 and
the failure of the Required Majority to agree to continue the Partnership as set
forth therein; or
(c) the entry of a decree of judicial dissolution under Section 17-802
of the Delaware Act.
Section 13.2 NOTICE OF DISSOLUTION. Upon the dissolution of
the Partnership, the General Partner shall promptly notify the Limited Partners
of such dissolution.
Section 13.3 LIQUIDATION. Upon dissolution of the Partnership,
the General Partner or, if such dissolution has occurred in accordance with
Section 13.1(b), the Required Majority shall appoint a liquidating trustee who
shall immediately commence to wind up the Partnership's affairs; PROVIDED,
HOWEVER, that a reasonable time shall be allowed for the orderly liquidation of
the assets of the Partnership and the satisfaction of liabilities to creditors
so as to enable the Limited Partners to minimize the normal losses attendant
upon a liquidation. The Limited Partners shall continue to share Profits and
Losses during liquidation in the same proportions, as specified in Article VII
hereof, as before liquidation. The proceeds of liquidation shall be distributed,
as realized, in accordance with the provisions of Article VIII hereof.
26
Section 13.4 TERMINATION. The Partnership shall terminate when
all of the assets of the Partnership have been distributed in the manner
provided for in this Article XIII, and the Certificate of Limited Partnership
shall have been canceled in the manner required by the Delaware Act.
Section 13.5 CLAIMS OF THE LIMITED PARTNERS. The Limited
Partners and former Limited Partners shall look solely to the Partnership's
assets for the return of their Capital Contributions, and if the assets of the
Partnership remaining after payment of or due provision for all debts,
liabilities and obligations of the Partnership are insufficient to return such
Capital Contributions, the Limited Partners and former Limited Partners shall
have no recourse against the Partnership or any other Partner.
ARTICLE XIV
AMENDMENTS
Section 14.1 AMENDMENTS. Any amendments to this Agreement or
any waivers or consents hereunder, shall be adopted and be effective as an
amendment hereto or waiver or consent hereunder only if approved by the Required
Majority and, if such amendment, waiver or consent would adversely affect the
particular rights and interests of any Limited Partner disproportionately to the
adverse effects of such action on the rights and interests of other Limited
Partners, such action shall also require the consent of such Limited Partner;
PROVIDED, HOWEVER, that no provision of this Agreement which establishes a class
vote and/or minimum Percentage Interest required to take any action shall be
amended in any respect which would reduce such voting requirement, unless such
amendment is approved by such Limited Partners holding at least the Percentage
Interest that would have been required to take the action permitted to be taken
under the provision to be amended.
ARTICLE XV
MISCELLANEOUS
Section 15.1 FURTHER ASSURANCES. The Partners shall cooperate
with each other and the Partnership and shall promptly execute, acknowledge and
deliver any assurances, approvals or documents reasonably requested by a Limited
Partner that is necessary for the requesting Partner or the Partnership to
satisfy its obligations hereunder or obtain the benefits contemplated hereby.
Section 15.2 NOTICES. All notices provided for in this
Agreement shall be in writing, duly signed by the party giving such notice, and
shall be delivered personally, sent by a nationally recognized overnight
courier, telecopied or mailed by registered or certified mail, as follows:
27
(a) If given to the Partnership, at the Partnership's mailing address
set forth below:
Mobile Satellite Ventures LP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(b) If given to the General Partner, at the General Partner's mailing
address set forth below:
Mobile Satellite Ventures GP Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to each Limited Partner as set forth in clause (c) below.
(c) If given to any Limited Partner, at the address set forth on
SCHEDULE I hereof (or as modified from time to time by a Limited Partner upon
written notice to the General Partner).
Notices delivered personally to an addressee or sent by
overnight courier shall be deemed to have been given upon such delivery. Notices
sent by telecopier shall be deemed to have been given upon confirmation by
telecopy answerback (provided that the sending of any such notice is followed
promptly by the mailing of the original of such notice). Notices mailed by
registered or certified mail shall be deemed to have been given upon the
expiration of five (5) days after such notice has been deposited in the mail.
Section 15.3 FAILURE TO PURSUE REMEDIES. The failure of any
party to seek redress for violation of, or to insist upon the strict performance
of, any provision of this Agreement shall not prevent a subsequent act, which
would have originally constituted a violation from having the effect of an
original violation. No waiver of any breach of any of the terms of this
Agreement shall be effective unless such waiver is in writing and signed by the
Partner against whom such waiver is claimed.
Section 15.4 CUMULATIVE REMEDIES. The rights and remedies
provided by this Agreement are cumulative and the use of any one right or remedy
by any party shall not preclude or waive its right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights the
parties may have by law, statute, ordinance or otherwise.
Section 15.5 BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of all of the parties and, to the extent permitted
by this Agreement, their successors, legal representatives and assigns.
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Section 15.6 SEVERABILITY. The invalidity or unenforceability
of any particular provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision were omitted.
Section 15.7 COUNTERPARTS. This Agreement may be executed in
any number of counterparts with the same effect as if all parties hereto had
signed the same document. All counterparts shall be construed together and shall
constitute one instrument.
Section 15.8 INTEGRATION. This Agreement constitutes the
entire agreement among the parties hereto pertaining to the subject matter
hereof and thereof and supersedes all prior agreements and understandings
pertaining thereto.
Section 15.9 CONFIDENTIALITY. Each Partner acknowledges that
in the course of the formation, and during the operation, of the Partnership it
has or shall receive confidential and proprietary information concerning the
assets, business plans, intellectual property rights and operations of the
Partnership and the other Partners and Affiliates of such Persons ("CONFIDENTIAL
INFORMATION"). Each Partner agrees that the Confidential Information is a
valuable asset of the Partnership or its owner, as the case may be and its
public disclosure or use outside of the Partnership's activities without the
prior consent of the Partnership and/or the relevant Partner would cause
substantial harm to the Partnership, such disclosing Partner or other Person.
Therefore, each Partner agrees to treat all Confidential Information received by
it with the amount of care that a reasonable business person would use to
protect to its own valuable and proprietary confidential information and shall
not disclose any Confidential Information to any Person who does not have a
contractual obligation with the Partnership to keep such Confidential
Information confidential or does not have the right to have such Confidential
Information disclosed to it under an agreement with the Partnership. In
addition, each Partner shall not personally, and shall not permit other Persons
(including its Affiliates) to utilize Confidential Information for any purpose
other than for the benefit of the Partnership.
Notwithstanding the foregoing, a Partner may disclose
Confidential Information to its Affiliates, professional advisors, lenders and
investors if such Persons have agreed for the benefit of the Partnership, to
comply with the provision of this Section 15.9.
As used herein, "CONFIDENTIAL INFORMATION" shall not include
information (i) that has become generally available to the public through no
fault of the receiving Person, (ii) to the minimum extent necessary in order to
comply with any law, order, regulation, ruling or other governmental request
pursuant to subpoena or government order, provided that in the event a receiving
Person is subject to such a subpoena or order, it shall notify in writing the
General Partner of such event, and shall cooperate with any reasonable request
or efforts by the General Partner to take reasonable legally permissible actions
to limit the scope of disclosure required in order for such Person to comply
with such subpoena or order and (iii) as may be required or appropriate in
response to any report, statement or testimony submitted to any municipal, state
or national (including foreign regulatory bodies having or claiming to have
jurisdiction over such Person).
29
Section 15.10 GOVERNING LAW; CONSENT TO JURISDICTION This
Agreement and the rights of the parties hereunder shall be interpreted in
accordance with the laws of the State of Delaware, and all rights and remedies
shall be governed by such laws without regard to principles of conflict of laws.
Each party agrees that, in connection with any legal suit or proceeding arising
with respect to this Agreement, it shall submit to the non-exclusive
jurisdiction of the United States District Courts for the District of Delaware
and the Southern District of New York or the applicable Delaware or New York
state court and agrees to venue in such courts.
* * *
30
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
MOBILE SATELLITE VENTURES GP INC.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
TMI COMMUNICATIONS DELAWARE, LIMITED
PARTNERSHIP
By: 3924505 CANADA INC.,
Its General Partner
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
TELCOM SATELLITE VENTURES II, INC.
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and General
Counsel
TELCOM SATELLITE VENTURES, INC.
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and General
Counsel
[SIGNATURE PAGE TO A & R PARTNERSHIP AGREEMENT]
31
SPECTRUM SPACE EQUITY INVESTORS IV, INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
SPECTRUM SPACE IV PARALLEL, INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
SPECTRUM SPACE IV MANAGERS, INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
SPECTRUM SPACE EQUITY INVESTORS IV-II,
INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
[SIGNATURE PAGE TO A & R PARTNERSHIP AGREEMENT]
32
SPECTRUM SPACE IV PARALLEL II, INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
SPECTRUM SPACE IV MANAGERS II, INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
COLUMBIA SPACE (QP) II, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
[SIGNATURE PAGE TO A & R PARTNERSHIP AGREEMENT]
33
COLUMBIA SPACE (AI) II, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
COLUMBIA SPACE PARTNERS II, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
COLUMBIA SPACE (QP), INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
COLUMBIA SPACE (AI), INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
[SIGNATURE PAGE TO A & R PARTNERSHIP AGREEMENT]
34
COLUMBIA SPACE PARTNERS, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
MOTIENT VENTURES HOLDING INC.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: EVP & COO
MSV INVESTORS, LLC
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO
[SIGNATURE PAGE TO A & R PARTNERSHIP AGREEMENT]
35
BY EXECUTING THIS AGREEMENT, ▇▇▇▇ VENTURES VII, LLC HEREBY ACCEPTS THE
OBLIGATIONS OF A LIMITED PARTNER AND ACKNOWLEDGES THAT ITS RIGHTS AS A LIMITED
PARTNER ARE LIMITED AS SET FORTH IN SECTION 5 OF THE SUBSCRIPTION AGREEMENT
DATED NOVEMBER 2, 2001 BETWEEN MOBILE SATELLITE VENTURES LLC AND ▇▇▇▇ VENTURES
VII, LLC AND SECTION 5 THEREOF IS HEREBY INCORPORATED BY REFERENCE INTO THIS
AGREEMENT WITH RESPECT TO ▇▇▇▇ VENTURES VII, LLC, ITS SUCCESSORS AND ASSIGNS:
▇▇▇▇ VENTURES VII, LLC
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Member
[SIGNATURE PAGE TO A & R PARTNERSHIP AGREEMENT]
36