EXHIBIT 10.10
LIMITED PARTNERSHIP AGREEMENT OF
AKW L.P.
among
AKW GENERAL PARTNER L.L.C.,
ACCURIDE VENTURES, INC.,
ACCURIDE CORPORATION, in its capacity
as guarantor of Accuride Ventures, Inc.,
and
▇▇▇▇▇▇ ALUMINUM & CHEMICAL CORPORATION
Dated as of May 1, 1997
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 FORMATION OF PARTNERSHIP . . . . . . . . . . . . . . . . . . . 9
2.1 Formation. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Partnership Name . . . . . . . . . . . . . . . . . . . . . . . 9
2.3 Principal Business Office, Registered Office and
Registered Agent . . . . . . . . . . . . . . . . . . . . . . . 9
2.4 Business Purposes. . . . . . . . . . . . . . . . . . . . . . . 9
2.5 The Certificate, Etc.. . . . . . . . . . . . . . . . . . . . . 9
2.6 Term of Partnership. . . . . . . . . . . . . . . . . . . . . . 10
2.7 Qualification in Other Jurisdictions . . . . . . . . . . . . . 10
2.8 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 3 CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1 Capital Contributions. . . . . . . . . . . . . . . . . . . . . 10
3.2 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . 11
3.3 Capital Account Maintenance. . . . . . . . . . . . . . . . . . 12
3.4 Withdrawals. . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 4 ALLOCATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1 Allocations of Profit and Loss . . . . . . . . . . . . . . . . 12
4.2 Tax Allocations. . . . . . . . . . . . . . . . . . . . . . . . 12
4.3 Special Allocations. . . . . . . . . . . . . . . . . . . . . . 13
4.4 Restorative Allocations. . . . . . . . . . . . . . . . . . . . 14
4.5 Section 754 Election . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 5 DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1 Distributions. . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2 Withholding. . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Restricted Distributions . . . . . . . . . . . . . . . . . . . 16
ARTICLE 6 MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.1 Management of the Partnership. . . . . . . . . . . . . . . . . 16
6.2 Limitations on Limited Partners. . . . . . . . . . . . . . . . 16
6.3 Duty of Good Faith . . . . . . . . . . . . . . . . . . . . . . 16
6.4 Environmental and Health and Safety Audits . . . . . . . . . . 17
6.5 Implementation; Further Assurances . . . . . . . . . . . . . . 17
ARTICLE 7 BOOKS; ACCOUNTING; TAX MATTERS; REPORTS. . . . . . . . . . . . 17
7.1 Books and Records. . . . . . . . . . . . . . . . . . . . . . . 17
7.2 Financial Statements . . . . . . . . . . . . . . . . . . . . . 17
7.3 Audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.4 Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . . 18
7.5 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.6 Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 8 RIGHTS AND OBLIGATIONS OF PARTNERS . . . . . . . . . . . . . . 21
8.1 Limited Liability. . . . . . . . . . . . . . . . . . . . . . . 21
8.2 Access to Information; Records . . . . . . . . . . . . . . . . 21
8.3 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 21
8.4 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 9 TRANSFERS OF INTERESTS; RIGHTS OF FIRST OFFER. . . . . . . . . 22
9.1 General Restriction. . . . . . . . . . . . . . . . . . . . . . 22
9.2 Right of First Offer . . . . . . . . . . . . . . . . . . . . . 22
9.3 Buy/Sell Option. . . . . . . . . . . . . . . . . . . . . . . . 23
9.4 Transfers to Affiliates. . . . . . . . . . . . . . . . . . . . 24
9.5 Substitution of a Limited Partner. . . . . . . . . . . . . . . 24
9.6 Nonrecognition of Certain Transfers. . . . . . . . . . . . . . 25
ARTICLE 10 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.1 Events of Dissolution. . . . . . . . . . . . . . . . . . . . . 25
10.2 Liability for Wrongful Dissolution . . . . . . . . . . . . . . 26
10.3 Distributions to Partners. . . . . . . . . . . . . . . . . . . 26
10.4 Application of Assets. . . . . . . . . . . . . . . . . . . . . 26
10.5 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 11 CONFIDENTIAL INFORMATION; COVENANT NOT TO COMPETE. . . . . . . 27
11.1 Confidential Information . . . . . . . . . . . . . . . . . . . 27
11.2 Covenant Not To Compete. . . . . . . . . . . . . . . . . . . . 27
ARTICLE 12 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 28
12.1 Waiver, Amendment, Etc.. . . . . . . . . . . . . . . . . . . . 28
12.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.3 Materials. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.4 Word Meanings. . . . . . . . . . . . . . . . . . . . . . . . . 30
12.5 Binding Provisions . . . . . . . . . . . . . . . . . . . . . . 30
12.6 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . 30
12.7 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.8 Separability of Provisions . . . . . . . . . . . . . . . . . . 31
12.9 Table of Contents; Headings. . . . . . . . . . . . . . . . . . 31
12.10 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 31
12.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.12 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 31
12.13 Survival of Certain Provisions . . . . . . . . . . . . . . . . 31
12.14 Specific Performance . . . . . . . . . . . . . . . . . . . . . 32
SCHEDULES
Schedule A Capital Contributions
Exhibit A Business Plan
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AKW L.P.
LIMITED PARTNERSHIP AGREEMENT
LIMITED PARTNERSHIP AGREEMENT OF AKW L.P. (the "PARTNERSHIP"),
dated as of May 1, 1997, among AKW GENERAL PARTNER L.L.C., a Delaware limited
liability company (the "GENERAL PARTNER"), ACCURIDE VENTURES, INC., a Delaware
corporation ("ACCURIDE SUB") and wholly-owned subsidiary of Accuride
Corporation, a Delaware corporation ("ACCURIDE"), ACCURIDE CORPORATION, in its
capacity as guarantor of Accuride Sub, and ▇▇▇▇▇▇ ALUMINUM & CHEMICAL
CORPORATION, a Delaware corporation ("KAISER") (Accuride Sub and Kaiser are
sometimes hereinafter referred to individually as a "LIMITED PARTNER" and
collectively as "LIMITED PARTNERS").
W I T N E S S E T H:
WHEREAS, the General Partner, Accuride Sub and Kaiser desire to
form and capitalize the Partnership in order to engage in the Business (as
hereinafter defined);
WHEREAS, the Partnership is to be formed under the Delaware Revised
Uniform Limited Partnership Act, Del. Code ▇▇▇ tit. 6, Sections 17-101 ET SEQ.
(as from time to time amended and including any successor statute of similar
import, the "ACT"), pursuant to a Certificate of Limited Partnership to be filed
with the office of the Secretary of State of the State of Delaware;
WHEREAS, the General Partner, Accuride and Kaiser have entered into
a Contribution Agreement, dated the date hereof (the "CONTRIBUTION AGREEMENT"),
pursuant to which the General Partner, Accuride (on behalf of Accuride Sub) and
Kaiser have agreed to contribute certain assets to capitalize the Partnership;
WHEREAS, Accuride Sub and Kaiser have entered into an Interest
Purchase Agreement, dated the date hereof (the "INTEREST PURCHASE AGREEMENT"),
pursuant to which Kaiser will sell a portion of its Interest (as hereinafter
defined) in the Partnership to Accuride Sub so that upon consummation of such
sale, each of Accuride Sub and Kaiser will have a 49% Interest in the
Partnership;
WHEREAS, the General Partner, Accuride Sub and Kaiser desire to set
forth their agreement as to the management of the Partnership, transfers of
Interests in the Partnership and certain other matters relating to the
Partnership;
NOW, THEREFORE, in consideration of the mutual covenants, and
subject to the terms and conditions, contained
herein, in the Limited Liability Company Agreement between Accuride Sub and
Kaiser (the "LIMITED LIABILITY COMPANY AGREEMENT") and in the Contribution
Agreement, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings
set forth below or in the Section of this Agreement referred to below:
"ACCOUNTING PERIOD" means the period beginning on the day following
any Adjustment Date (or, in the case of the first Accounting Period, beginning
on the day of formation of the Partnership) and ending on the next succeeding
Adjustment Date.
"ACCURIDE" has the meaning given in the first paragraph hereof.
"ACCURIDE EXCLUDED CONTRACTS" has the meaning given in the
Contribution Agreement.
"ACCURIDE SUB" has the meaning given in the first paragraph hereof.
"ACT" has the meaning given in the recitals.
"ADJUSTMENT DATE" means (I) the last day of each Fiscal Year,
(II) the day before the date of admission of any substituted or additional
Partner, (III) the day before the date any Capital Contribution which is not
proportionate to the Partners' Interests is made or deemed to be made, (IV) the
day before the date a Partner ceases to be a partner of the Partnership, (V) the
day before the date of any distribution made or deemed to be made by the
Partnership which is not proportionate to the Partners' Interests or (VI) any
other date determined by the Partners as appropriate for a closing of the
Partnership's books.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with,
such Person. Control of any Person shall consist of the power to direct the
management and policies of such Person whether through the ownership of voting
securities or by contract or otherwise and shall be deemed to exist upon the
ownership of securities entitling the holder thereof to exercise more than 50%
of the voting power in the election of directors of such Person.
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"AGREEMENT" means this Limited Partnership Agreement, as it may be
amended, restated or supplemented from time to time as herein provided.
"ANCILLARY AGREEMENTS" means this Agreement, the Certificate, the
Contribution Agreement, the Interest Purchase Agreement and all other agreements
which are included in the definition of "Ancillary Agreements" in the
Contribution Agreement.
"BANKRUPTCY" means, with respect to any Partner, (i) the filing by
that Partner of a voluntary petition seeking liquidation, reorganization,
arrangement or readjustment, in any form, of its debts under Title 11 of the
United States Code or any other Federal or state insolvency law, or a Partner's
filing an answer consenting to or acquiescing in any such petition, (ii) the
making by that Partner of any assignment for the benefit of his creditors or
(iii) the expiration of 60 days after the filing of an involuntary petition
under Title 11 of the United States Code, an application for the appointment of
a receiver, trustee or custodian for the assets of that Partner, or an
involuntary petition seeking liquidation, reorganization, arrangement or
readjustment of its debts under any other Federal or state insolvency law,
provided that the same shall not have been vacated, set aside or stayed within
such 60-day period.
"BID" has the meaning given in Section 9.3.
"BOOK GAIN OR BOOK LOSS" means the gain or loss, as the case may
be, recognized by the Partnership for book purposes in any Accounting Period by
reason of any sale or other disposition (including any distribution to a
Partner) of any of the assets of the Partnership, computed by reference to the
Book Value of such assets as of the date of any such sale or other disposition
(including any such distribution), rather than by reference to the tax basis of
such assets as of such date, and each reference herein to "gain" or "loss" shall
be deemed to refer to Book Gain or Book Loss, rather than to tax gain or tax
loss, unless the context specifically requires otherwise.
"BOOK VALUE", as of any date, means the value at which the asset is
reflected on the books and records of the Partnership as of such date, the
initial Book Value of each asset being its cost to the Partnership, unless such
asset is contributed to the Partnership by a Partner in which case the initial
Book Value shall be the Fair Value of such asset, in all cases, with such Book
Value thereafter adjusted for Depreciation with respect to such asset (rather
than for the cost recovery deductions to which the Partnership is entitled for
federal income tax purposes with respect thereto), PROVIDED that the Book Value
of such asset shall not be reduced below zero. The Book Values of all assets of
the Partnership shall be adjusted in accordance with Section 1.704-
1(b)(2)(iv)(f) of the Treasury Regulations.
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"BUSINESS" has the meaning given in Section 2.4.
"BUSINESS DAY" means any calendar day other than a Saturday or
Sunday or a day on which either state or national banks in the States of
Pennsylvania, Arizona, California, Kentucky, Ohio or New York are not open for
the conduct of normal banking business.
"BUSINESS PLAN" means the definitive business plan for the
Partnership substantially in the form of Exhibit A hereto, and any subsequent
plan approved by the General Partner.
"BUY-SELL NOTICE" has the meaning given in Section 9.3.
"CAPITAL ACCOUNT" has the meaning given in Section 3.2, as adjusted
pursuant to the provisions of this Agreement.
"CAPITAL CONTRIBUTION" means, as to any Partner, at any time, the
aggregate of the amount of any cash and the initial Book Value of any property
(net of the amount of any liability which is assumed by the Partnership in
connection with such contribution or secured by such property) contributed to
the Partnership by such Partner pursuant to Section 3.1 of this Agreement.
Notwithstanding anything to the contrary in this Agreement or the Contribution
Agreement, none of the amounts that Kaiser pays to or on behalf of the
Partnership pursuant to Section 6.3 or 6.4 of the Contribution Agreement shall
be treated as capital contributions for any purpose of this Agreement.
"CERTIFICATE" means the Certificate of Limited Partnership of the
Partnership as provided for pursuant to the Act, as filed with the office of the
Secretary of State of the State of Delaware, as amended and restated from time
to time pursuant to this Agreement or otherwise.
"CLAIM" has the meaning given in Section 8.3.
"CLOSING DATE" has the meaning given in the Contribution Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor act thereto, and, to the extent applicable, any
Treasury Regulations promulgated thereunder.
"CONTRIBUTION AGREEMENT" has the meaning given in the recitals.
"DEPRECIATION" means, with respect to a specified asset, for any
Accounting Period, any depreciation, depletion, amortization or other cost
recovery deduction allowable with respect to such asset for such Accounting
Period, PROVIDED that if the Book Value of such asset differs from its adjusted
basis for federal income tax purposes at the beginning of such
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Accounting Period, Depreciation shall be an amount that bears the same
relationship to the Book Value of such asset as the depreciation, depletion,
amortization or other cost recovery deduction computed for such tax purposes
with respect to such asset for such Accounting Period bears to the adjusted tax
basis of such asset at the beginning of such Accounting Period, or if such asset
has a zero adjusted tax basis, Depreciation shall be an amount determined under
any reasonable method selected by the General Partner.
"EFFECTIVE DATE" has the meaning given in Section 2.1.
"FAIR VALUE" means, with respect to any specified asset, its value
as determined by the General Partner or by appraisal (as directed or requested
by the General Partner), PROVIDED that the Fair Value of each asset contributed
to the Partnership pursuant to the Contribution Agreement shall be the value as
set forth in Schedule 2.2 to the Contribution Agreement.
"FISCAL YEAR" means the fiscal year of the Partnership and shall be
the same as its taxable year, which shall be the calendar year unless otherwise
required by the Code. Each Fiscal Year shall commence on the day immediately
following the last day of the immediately preceding Fiscal Year, except that the
initial Fiscal Year shall begin on the Closing Date.
"GAAP" has the meaning given in Section 7.1.
"GENERAL PARTNER" has the meaning given in the first paragraph
hereof.
"INDEMNIFIED PERSONS" has the meaning given in Section 8.3.
"INITIAL OFFER" has the meaning given in Section 9.3.
"INITIATING LIMITED PARTNER" has the meaning given in Section 9.3.
"INTEREST" means, with respect to a Partner, the entire interest of
such Partner in the Partnership at any time, which interest, except as otherwise
provided in the second succeeding sentence, shall be proportionate to its
Capital Contribution, PROVIDED that if, at any time after the Closing Date, a
Partner or Partners make any Capital Contribution to the Partnership that is not
in proportion to the Partners' respective Interests immediately prior to such
Capital Contribution, then unless otherwise determined by the General Partner
(I) the aggregate values of the Interests of all Partners prior to such Capital
Contribution shall be adjusted to their Fair Values, (II) the Book Values of the
assets of the Partnership shall be adjusted accordingly, and (III) a Partner's
Interest after such Capital Contribution shall be equal to (X) the sum of the
Fair Value of such Partner's Interest prior to such Capital Contribution and
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the amount of such Capital Contribution made by such Partner (Y) divided by the
aggregate Fair Values of the Interests of all Partners prior to such Capital
Contribution and the aggregate amount of such Capital Contributions made by all
Partners at such time. A Partner's Interest shall include the right of such
Partner to any and all benefits to which a Partner may be entitled as provided
in this Agreement, together with the obligations of such Partner to comply with
the terms of this Agreement. Upon completion of the transactions contemplated by
the Contribution Agreement and the Interest Purchase Agreement, the General
Partner shall initially hold an Interest equal to 2% of the total Interests of
the Partners and each of Accuride Sub and Kaiser shall initially hold an
Interest equal to 49% of the total Interests of the Partners, subject in each
instance to adjustment from time to time pursuant to the applicable provisions
of this Agreement.
"INTEREST PURCHASE AGREEMENT" has the meaning given in the
recitals.
"JOINT VENTURE PRODUCTS" means (I) aluminum wheels 16" in diameter
and larger primarily for light, medium and heavy duty trucks, trailers and buses
(classes 1-8), although certain of such wheels may also be sold into the
automotive original equipment manufacturer market; (II) tire molds for
automotive and light-medium-heavy truck applications, as to each of clauses (i)
and (ii) above, produced by forging, fabricating or casting for marketing and
sale worldwide, including without limitation in the original equipment
manufacturer market, after-market and repair and replacement markets; and (III)
such additional or different products as the General Partner may approve.
Notwithstanding the foregoing, Joint Venture Products shall not include, without
▇▇▇▇▇▇'▇ written consent, motorcycle wheels and wheel parts, wheel centers for
any applications, forged one piece wheel blanks sold to other wheel
manufacturers and finished wheels for the automotive aftermarket produced or
being contemplated for production by Kaiser.
"KAISER" has the meaning given in the first paragraph hereof.
"KAISER EXCLUDED INVENTORY" has the meaning given in the
Contribution Agreement.
"LIMITED LIABILITY COMPANY AGREEMENT" has the meaning given in the
recitals.
"LIMITED PARTNER" means either Accuride Sub or Kaiser, or any
Person who becomes a Limited Partner as herein provided and who is listed as a
limited partner of the Partnership in the books and records of the Partnership,
in such Person's capacity as a limited partner of the Partnership.
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"NONRECOURSE DEDUCTIONS" has the meaning given in Section 1.704-
2(b)(1) of the Treasury Regulations.
"OFFER" has the meaning given in Section 9.2(a).
"OFFER NOTICE" has the meaning given in Section 9.2(a).
"OFFERED INTEREST" has the meaning given in Section 9.2(a).
"OFFERED LIMITED PARTNERS" has the meaning given in Section 9.2(a).
"OFFERING LIMITED PARTNER" has the meaning given in Section 9.2(a).
"PARTNER NONRECOURSE DEBT" has the meaning given in Section
1.704-2(b)(4) of the Treasury Regulations.
"PARTNER NONRECOURSE DEBT MINIMUM GAIN" has the meaning given in
Section 1.704-2(i)(2) of the Treasury Regulations.
"PARTNER NONRECOURSE DEDUCTIONS" has the meaning given in
Section 1.704-2(i)(1) of the Treasury Regulations.
"PARTNER" means the General Partner or any Limited Partner.
"PARTNERSHIP" means AKW L.P., a Delaware limited partnership.
"PARTNERSHIP MINIMUM GAIN" has the meaning given in Section
1.704-2(b)(2) of the Treasury Regulations.
"PERSON" means any individual, corporation, partnership,
association, public body, governmental authority or other entity.
"PROFIT" or "LOSS" means for any Accounting Period the net income
or net loss of the Partnership for such Accounting Period, including any items
that are separately stated for purposes of Section 702(a) of the Code, as
determined in accordance with federal income tax accounting principles, with the
following adjustments:
(a) any income of the Partnership that is exempt from federal
income tax shall be included as income;
(b) any expenditures of the Partnership described in Section
705(a)(2)(B) of the Code or treated as such Section 705(a)(2)(B)
expenditures pursuant to Section 1.704-1(b)(2)(iv)(i) of the
Treasury Regulations shall be treated as current expenses;
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(c) Book Gain or Book Loss shall be taken into account in lieu of
any tax gain or tax loss recognized by the Partnership;
(d) in lieu of depreciation, amortization, depletion, and other
cost recovery deductions taken into account in computing the
taxable income or loss of the Partnership, there shall be taken
into account Depreciation for such period, computed as provided in
this Agreement;
(e) if any asset of the Partnership is distributed in kind during
such Accounting Period, the Partnership shall be deemed to have
realized Profit or Loss thereon in the same manner as if the
Partnership had sold such asset for an amount equal to the greater
of (I) the Fair Value of such asset or (II) the amount of any debt
to which such asset is then subject; and
(f) notwithstanding any other provisions of this definition, any
items which are specially allocated pursuant to Section 4.3 shall
not be taken into account.
"RECEIVING LIMITED PARTNER" has the meaning given in Section 9.3.
"RESPONSE" has the meaning given in Section 9.3.
"SPEEDLINE AGREEMENTS" means, collectively, the Cast Aluminum Wheel
Supply Agreement, dated as of December 1, 1995, between Accuride and Speedline
Aluminia, S.p.A. ("Speedline"); the Memorandum of Agreement re: Cast Aluminum
Wheel Venture, dated as of December 1, 1995, between Accuride and Speedline; and
the Letter Agreement, dated June 1, 1996, between Accuride and Speedline.
"STRATEGIC PLAN" has the meaning given in Section 6.4 of the
Limited Liability Company Agreement.
"SUBSTITUTED LIMITED PARTNER" has the meaning given in Section 9.5.
"TAX MATTERS PARTNER" has the meaning given in Section 7.5(a).
"TIRE MOLD BUSINESS" has the meaning set forth in 11.2(b).
"TRANSFER" has the meaning given in Section 9.1.
"TREASURY REGULATIONS" means the federal income tax regulations,
including any temporary or proposed regulations,
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promulgated under the Code, as such may be amended from time to time.
ARTICLE 2
FORMATION OF PARTNERSHIP
1 FORMATION. By execution of this Agreement, each of the Partners,
or their designees, is hereby authorized to execute and file the Certificate
pursuant to the Act with the Secretary of State of the State of Delaware to be
effective upon the date filed (the "EFFECTIVE DATE"), and upon the occurrence of
the Effective Date, the Partnership will be formed as a Delaware limited
partnership.
2 PARTNERSHIP NAME. The name of the Partnership shall be AKW L.P.
The Business of the Partnership shall be conducted under such name or such other
names as the General Partner shall from time to time approve.
3 PRINCIPAL BUSINESS OFFICE, REGISTERED OFFICE AND REGISTERED
AGENT. The Partnership shall maintain its principal business office, initially,
at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and shall move such principal
business office to Akron, Ohio (at such time as shall be determined by the
Members Committee) or to such other location as may hereafter be determined by
the General Partner. The address of the registered office of the Partnership in
the State of Delaware is Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the name of the Partnership's
registered agent at such address is The Corporation Trust Company. The
principal business office, the registered office and the registered agent of the
Partnership may be changed by the General Partner from time to time in
accordance with the then applicable provisions of the Act and any other
applicable laws.
4 BUSINESS PURPOSES. The purposes of the Partnership are to
design, manufacture (by forging, fabricating casting or as otherwise determined
by the General Partner), market and sell Joint Venture Products (the
"BUSINESS"), and to engage in all actions necessary, convenient or incidental to
the foregoing, including without limitation acquiring, holding, managing,
operating, financing, selling, leasing, licensing and otherwise disposing of all
kinds and classes of real and personal property, tangible and intangible, and
borrowing funds (and securing the same by mortgage, deed of trust, or otherwise)
and executing such instruments as may be necessary or appropriate to accomplish
its business purposes, subject to the terms and conditions hereof.
5 THE CERTIFICATE, ETC. The Partners hereby agree to, and, as
appropriate, to cause the Partnership to, execute, file and record all such
certificates and documents, including amendments to the Certificate, and to do
such other acts as may
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be appropriate in the reasonable judgment of the General Partner to comply with
all requirements for the formation, continuation and operation of the
Partnership as a limited partnership, and the ownership of property and the
conduct of the Business by the Partnership, under the laws of the State of
Delaware and any other jurisdiction in which the Partnership may own property or
conduct business.
6 TERM OF PARTNERSHIP. The term of the Partnership will commence
on the Effective Date, and shall continue until dissolution occurs by operation
of law, the written consent of the Partners or otherwise in accordance with
Section 10.1(a) and the liquidation and winding up thereof is complete as
provided in Section 10.5.
7 QUALIFICATION IN OTHER JURISDICTIONS. The General Partner shall
cause the Partnership to be qualified and registered as a limited partnership
doing business in such jurisdictions, if any, as the General Partner, with the
advice of counsel, from time to time shall determine is appropriate. The
General Partner shall execute, file and publish all such certificates, notices,
statements or other instruments necessary to permit the Partnership to conduct
business as a limited partnership in all jurisdictions where the Partnership
elects to do business.
8 POWERS. In furtherance of its purposes, but subject to all of
the provisions of this Agreement, the Partnership shall have the power and is
hereby authorized to do such things and engage in such activities related to the
foregoing as may be necessary, convenient or advisable with respect to the
conduct of the Business of the Partnership and have and exercise all of the
powers and rights conferred upon limited partnerships formed pursuant to the
Act.
ARTICLE 3
CAPITALIZATION
1 CAPITAL CONTRIBUTIONS. On the Closing Date, each of the General
Partner, Accuride (through Accuride Sub) and Kaiser shall make the Capital
Contribution of cash or property as agreed upon by the General Partner, Accuride
Sub and Kaiser in the Contribution Agreement and, upon the consummation of the
transactions contemplated by the Contribution Agreement, each of the General
Partner's, Accuride Sub's and ▇▇▇▇▇▇'▇ Capital Contribution shall be as set
forth opposite its name on Schedule A hereto. Thereafter, the Partners shall
make Capital Contributions in proportion to their respective Interests from time
to time in such amounts and on such dates as may unanimously be agreed by the
Partners. Subject to the approval of the General Partner, the Partners may
satisfy their Capital Contributions by contributing cash or other property.
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2 CAPITAL ACCOUNTS. A separate capital account (a "CAPITAL
ACCOUNT") shall be established and maintained for each Partner and shall be
adjusted as of the close of business on each Adjustment Date as follows:
(a) Each Partner's Capital Account shall be credited with such
Partner's Capital Contribution, such Partner's distributive
share of Profit and any items in the nature of income or
gain which are specially allocated pursuant to Section 4.3,
and the amount of any Partnership liabilities that are
assumed by such Partner or that are secured by any property
distributed to such Partner by the Partnership, in each case
during the Accounting Period ending on such Adjustment Date.
(b) Each Partner's Capital Account shall be debited with the
amount of cash and the Book Value of any property
distributed to such Partner by the Partnership pursuant to
any provision of this Agreement, such Partner's distributive
share of Loss and any items in the nature of expenses or
losses which are specially allocated pursuant to Section
4.3, and the amount of any liabilities of such Partner that
are assumed by the Partnership or that are secured by any
property contributed by such Partner to the Partnership, in
each case during the Accounting Period ending on such
Adjustment Date.
(c) If at any time after the Effective Date, the Book Value of
any asset of the Partnership is adjusted pursuant to the
last sentence of the definition of Book Value set forth in
Article 1 (including pursuant to the proviso to the first
sentence of the definition of Interest set forth in Article
1), the Capital Accounts of all Partners shall be adjusted
simultaneously to reflect the aggregate net adjustments as
if the Partnership had recognized Profit or Loss equal to
the respective amounts of such aggregate net adjustments.
(d) In the event all or a portion of an Interest in the
Partnership is transferred in accordance with the terms of
this Agreement, the transferee shall succeed to the Capital
Account of the transferor to the extent it relates to the
transferred Interest (Accuride Sub and Kaiser agree for the
avoidance of doubt that immediately after the consummation
of the transactions contemplated by the Interest Purchase
Agreement, each of Accuride Sub and Kaiser shall have the
same amount of a Capital Account).
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3 CAPITAL ACCOUNT MAINTENANCE. The method by which the Capital
Accounts are maintained is intended to comply with Section 704(b) of the Code
and the Treasury Regulations thereunder and shall be interpreted and applied in
a manner consistent therewith.
4 WITHDRAWALS. Except as authorized by the General Partner, no
Partner shall be entitled to withdraw any part of its Capital Account or to
receive any distributions from the Partnership except as provided in Articles 5
and 10, or to make any loan or Capital Contribution to the Partnership except as
expressly provided in this Agreement.
ARTICLE 4
ALLOCATIONS
1 ALLOCATIONS OF PROFIT AND LOSS. Except as otherwise provided in
this Article 4, the Profit and Loss of the Partnership for each Accounting
Period shall be determined as of the end of each such Accounting Period and
shall be allocated among the Partners in proportion to their respective
Interests.
2 TAX ALLOCATIONS. (a) Except as provided in Section 4.2(b) below,
the income, gains, losses, credits and deductions recognized by the Partnership
shall be allocated among the Partners, for federal, state and local income tax
purposes, to the extent permitted under the Code and the Treasury Regulations,
in the same manner that each such item affected the Partners' Capital Accounts.
(b) In accordance with Section 704(c) of the Code and the Treasury
Regulations thereunder, any income, gain, loss, credit and deduction with
respect to any asset contributed to the capital of the Partnership by any
Partner shall, solely for federal income tax purposes, be allocated among the
Partners so as to take account of any variation between the adjusted basis of
such asset to the Partnership for federal income tax purposes and its initial
Book Value (determined in accordance with the definition of Book Value set forth
in Article 1). The method of allocating such income, gain, loss, credit and
deduction shall be such method set forth in Section 1.704-3(b) of the Treasury
Regulations. In the event the Book Value of any asset of the Partnership is
subsequently adjusted in accordance with the last sentence of such definition of
Book Value, subsequent allocations of any income, gain, loss, credit and
deduction with respect to such asset shall take account of any variation between
the adjusted tax basis of the asset to the Partnership and its Book Value in the
same manner as under Section 1.704-3(d) of the Treasury Regulations.
3 SPECIAL ALLOCATIONS. (a) NONRECOURSE DEDUCTIONS. Nonrecourse
Deductions for any Accounting Period shall be
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allocated to the Partners in proportion to their respective Interests.
(b) MINIMUM GAIN CHARGEBACK. Except as otherwise provided in
Section 1.704-2(f) of the Treasury Regulations, notwithstanding any other
provision of this Article 4, in the event there is a net decrease in Partnership
Minimum Gain during any Accounting Period, each Partner at the end of such
Accounting Period shall be specially allocated items of income and gain for such
Accounting Period (and, if necessary, subsequent Accounting Periods) in an
amount equal to such Partner's share of the net decrease in Partnership Minimum
Gain as determined in accordance with Section 1.704- 2(g)(1) of the Treasury
Regulations. The items to be so allocated shall be determined in accordance
with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Treasury Regulations. This
Section 4.3(b) is intended to comply with the minimum gain chargeback
requirement of Section 1.704- 2(f) of the Treasury Regulations and shall be
interpreted and applied in a manner consistent therewith.
(c) PARTNER NONRECOURSE DEDUCTIONS. Any Partner
Nonrecourse Deductions for any Accounting Period shall be specially allocated to
the Partner who bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable
in accordance with Section 1.704-2(i)(1) of the Treasury Regulations. If more
than one Partner bears the economic risk of loss with respect to a Partner
Nonrecourse Debt, the Partner Nonrecourse Deductions attributable thereto shall
be allocated between or among such Partners in accordance with the ratios in
which they share such economic risk of loss.
(d) PARTNER MINIMUM GAIN CHARGEBACK. Except as otherwise provided
in Section 1.704-2(i)(4) of the Treasury Regulations, notwithstanding any other
provision of this Article 4, if there is a net decrease in Partner Nonrecourse
Debt Minimum Gain during any Accounting Period, each Partner who has a share of
the Partner Nonrecourse Debt Minimum Gain shall be specially allocated items of
income and gain for such Accounting Period (and, if necessary, subsequent
Accounting Periods) in an amount equal to such Partner's share of the net
decrease in Partner Nonrecourse Debt Minimum Gain determined in accordance with
Section 1.704- 2(i)(4) of the Treasury Regulations. The items to be so
allocated shall be determined in accordance with Sections 1.704-2(i)(4) and
1.704-2(j)(2) of the Treasury Regulations. This Section 4.3(d) is intended to
comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of
the Treasury Regulations and shall be interpreted and applied in a manner
consistent therewith.
(e) QUALIFIED INCOME OFFSET. No allocation shall be made pursuant
to this Article 4 to the extent it shall cause or increase a deficit in any
Partner's Capital Account (in excess of
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such Partner's obligation, including any obligation under the Treasury
Regulations, if any, to restore a deficit in its Capital Account) as of the end
of the Accounting Period to which such allocation is related. In making the
foregoing determination, a Partner's Capital Account shall be reduced by the
amounts described in Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the
Treasury Regulations. In the event any Partner unexpectedly receives an
adjustment, allocation or distribution described in
Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Treasury Regulations, items
of income and gain shall be specially allocated to each such Partner in an
amount and manner sufficient to eliminate, to the extent required by the
Treasury Regulations, such deficit as quickly as possible, provided that an
allocation pursuant to this Section 4.3(e) shall be made only if and to the
extent such Partner would have a deficit in its Capital Account after all other
allocations provided for in this Article 4 have been made as if this Section
4.3(e) were not in the Agreement. This Section 4.3(e) is intended to comply
with the alternate test for economic effect set forth in
Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be
interpreted and applied in a manner consistent therewith.
4 RESTORATIVE ALLOCATIONS. The allocations set forth in Section
4.3 are intended to comply with certain requirements of Sections 1.704-1(b) and
1.704-2 of the Treasury Regulations. Notwithstanding any other provision of
this Agreement, the allocations pursuant to Section 4.3 shall be taken into
account in allocating Profit, Loss and items of income, gain, loss and deduction
among the Partners so that, insofar as possible, the net amount of the
allocations of Profit, Loss, and other items and the allocations pursuant to
Section 4.3 to each Partner shall be equal to the net amount that would have
been allocated to each Partner had the allocations provided for in Section 4.3
not occurred.
5 SECTION 754 ELECTION. The Partnership shall elect, pursuant to
Section 754 of the Code, to adjust the basis of property of the Partnership as
permitted and provided in Sections 734 and 743 of the Code. Such election shall
be effective solely for federal (and, if applicable, state and local) income tax
purposes and (except as provided in Section 1.704-1(b)(2)(iv)(m) of the Treasury
Regulations) shall not result in any adjustment to the Book Value of any asset
of the Partnership or to the Partners' Capital Accounts or in the determination
or allocation of Profit or Loss for purposes other than such tax purposes. Each
Partner, and not the Tax Matters Partner, shall be responsible for preparing any
schedules resulting from the Section 754 election that are relevant to the
computation of such Partner's federal income tax liability, PROVIDED that the
other Partners shall provide the Partner preparing such schedules with the
information necessary for preparing such schedules and readily available from
the books and accounts of such other Partners.
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ARTICLE 5
DISTRIBUTIONS
1 DISTRIBUTIONS. Distributions may be made in accordance with the
Partners' respective Interests at the time of distribution at such times and in
such amounts as the General Partner shall determine. Notwithstanding the
foregoing, if any Partner is in default or delinquent in respect of any
obligation to the Partnership, no distribution shall be made to the defaulting
or delinquent Partner until such default is cured or such delinquent obligation
is paid, PROVIDED that, notwithstanding the foregoing, for each Fiscal Year the
Partnership shall distribute to each Partner in cash an amount equal to such
Partner's distributive share of the Partnership's taxable income for such Fiscal
Year, multiplied by the highest marginal corporate income tax rate under the
Code in effect for such Fiscal Year.
2 WITHHOLDING.
(a) Each Partner shall, to the fullest extent permitted by
applicable law, indemnify and hold harmless each Person who is or who is deemed
to be the responsible withholding agent for federal, state or local income tax
purposes against all claims, liabilities and expenses of whatever nature (other
than any claims, liabilities and expenses in the nature of penalties and accrued
interest thereon that result from such Person's fraud, willful misfeasance, bad
faith or gross negligence) relating to such Person's obligation to withhold and
to pay over, or otherwise pay, any withholding or other taxes payable by the
Partnership or as a result of such Partner's participation in the Partnership.
(b) The Partnership shall withhold and pay over, or otherwise
pay, any withholding or other taxes payable by the Partnership with respect to
such Partner or as a result of such Partner's participation in the Partnership
pursuant to any applicable tax law. If and to the extent that the Partnership
shall be required to withhold or pay any such taxes, such Partner shall be
deemed for all purposes of this Agreement to have received a payment from the
Partnership as of the time such withholding or tax is required to be paid, which
payment shall be deemed to be a distribution with respect to such Partner's
Interest in the Partnership to the extent that the Partner (or any successor to
such Partner's Interest in the Partnership) is then entitled to receive a
distribution and shall reduce the amount of distributions to be made to such
Partner pursuant to this Article 5. To the extent that the aggregate of such
payments to a Partner for any period exceeds the distributions to which such
Partner is entitled for such period, such Partner shall make a prompt payment to
the Partnership of such excess.
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(c) If the Partnership makes a distribution in kind and such
distribution is subject to withholding or other taxes payable by the Partnership
on behalf of any Partner, such Partner shall make a prompt payment to the
Partnership of the amount so withheld.
3 RESTRICTED DISTRIBUTIONS. Notwithstanding any provision to the
contrary contained in this Agreement, the Partnership shall not make a
distribution to any Partner on account of its interest in the Partnership if
such distribution would violate Section 17-607 of the Act or other applicable
law.
ARTICLE 6
MANAGEMENT
1 MANAGEMENT OF THE PARTNERSHIP. The overall management and
control of the business and affairs of the Partnership shall be vested in the
General Partner. Except as otherwise expressly provided in this Agreement, all
decisions with respect to any matter set forth in this Agreement or otherwise
affecting or arising out of the conduct of the business of the Partnership shall
be made by the General Partner. With respect to all of its rights, powers and
responsibilities under this Agreement, the General Partner is authorized to
execute and deliver, in the name and on behalf of the Partnership, all such
agreements, documents and other instruments as it deems proper, all on such
terms and conditions as it deems necessary or appropriate for the purposes of
the Partnership.
2 LIMITATIONS ON LIMITED PARTNERS. Except as specifically set
forth in this Agreement, no Limited Partner, in its capacity as a Limited
Partner, shall (a) be permitted to take part in the management or control of the
business or affairs of the Partnership, or (b) have the authority or power to
act as agent for or on behalf of the Partnership or any other Partner, to do any
act that would be binding on the Partnership or any other Partner or to incur
any expenditures on behalf of or with respect to the Partnership.
3 DUTY OF GOOD FAITH. The General Partner shall perform its
management duties in good faith, in a manner the General Partner reasonably
believes to be in the Partnership's best interests, and with such care as an
ordinary prudent person in a similar position would use under similar
circumstances and conditions. The General Partner shall not be liable to the
Partnership for any loss or damage arising in connection with the performance of
its management duties unless the loss or damage was the result of gross
negligence or willful misconduct. This Section 6.3 shall not be construed as
providing rights or benefits for any third parties.
- 16 -
4 ENVIRONMENTAL AND HEALTH AND SAFETY AUDITS. The General Partner
shall be responsible for performing, or engaging a Limited Partner or a
third-party at the Partnership's expense to perform, environmental and health
and safety audits of the Partnership's facilities and operations; PROVIDED,
HOWEVER, that each Limited Partner, at such Limited Partner's expense, has the
right to perform, or cause to be performed, environmental or health and safety
audits of the Partnership at reasonable times, and the Partnership shall give
such Limited Partner full access and cooperation in connection with any such
audit.
5 IMPLEMENTATION; FURTHER ASSURANCES. Each Partner shall take such
actions as may be required under applicable law, including actions with respect
to the execution of documents and performance of other ministerial acts, to give
full effect to, and to implement, all decisions of the General Partner,
including any amendments and supplements to the Business Plan.
ARTICLE 7
BOOKS; ACCOUNTING; TAX MATTERS; REPORTS
1 BOOKS AND RECORDS. At all times during the continuance of the
Partnership, the Partnership shall maintain 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 Business in accordance with generally
accepted accounting principles consistently applied ("GAAP"). Each Partner
shall have full access to such books of account for the Partnership and to all
financial, legal and business records of the Partnership. Such books of
account, financial, legal and business records of the Partnership, together with
a copy of this Agreement and of the Certificate, shall at all times be
maintained at the principal place of business of the Partnership and shall be
open to inspection, examination and copying at reasonable times during normal
business hours by each Partner and its duly authorized representatives for any
purpose reasonably related to such Partner's Interest in the Partnership. Such
books of account, financial, legal and business records of the Partnership shall
be retained during the term of this Agreement and for seven years thereafter.
Partners shall be entitled to discuss the matters recorded in such books and
records with the independent certified accountants retained by the Partnership
and with any officers of the General Partner. A Partner shall bear all expenses
incurred in any examination made for such Partner's account.
2 FINANCIAL STATEMENTS. Within 60 days after the close of each
Fiscal Year there shall be prepared and submitted to each Partner the following
financial statements of the Partnership, which shall be prepared on an accrual
basis in
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accordance with GAAP and accompanied by the report thereon of the independent
certified public accountants for the Partnership:
(a) a balance sheet as at the end of such Fiscal Year;
(b) a statement of profit or loss for such Fiscal Year;
(c) a statement of cash flows for such Fiscal Year; and
(d) a statement of the Partners' Capital Accounts and changes
therein for such Fiscal Year.
3 AUDIT. The independent certified public accountant of the
Partnership shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, unless the General Partner shall determine
otherwise. The General Partner shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or such other
independent certified public accountant as the General Partner may determine to
conduct an annual audit of the Partnership, which shall be performed in
accordance with generally accepted auditing standards, and to accompany such
audit with a report containing such accountant's opinion. The cost of such
audits shall be a direct expense of the Partnership. A copy of any such audited
financial statements and accountant's report will be distributed to the Partners
pursuant to Section 7.2 above. Each Partner shall have the right to have the
audit papers of the Partnership reviewed by such Partner's internal and external
auditors, at such Partner's sole cost and expense.
4 BANK ACCOUNTS. The Partnership shall maintain one or more
accounts in a bank or banks selected by the General Partner, which accounts
shall be used for the payment of the expenditures incurred in connection with
the business of the Partnership and in which shall be deposited any and all cash
receipts of the Partnership. All such amounts shall be and remain the property
of the Partnership. There shall not be deposited in any of said accounts any
funds other than funds belonging to the Partnership and no other funds shall in
any way be commingled with such funds. Withdrawals shall be made only in the
regular course of business on such signature or signatures as the General
Partner may determine.
5 TAX MATTERS.
(a) The General Partner shall act as the tax matters partner (the
"TAX MATTERS PARTNER") within the meaning of Section 6231(a)(7) of the Code (and
any similar capacity under applicable state or local tax law).
(b) The Partners hereby authorize the Tax Matters Partner to
take any and all actions (including preparing, executing and filing Internal
Revenue Service Form 8832 with the
- 18 -
Internal Revenue Service) necessary to treat the Partnership as a partnership
for purposes of federal and, to the extent permitted by applicable law, state
and local income tax and other taxes. Immediately after the formation of the
Partnership but in no event later than 75 days after the Effective Date, the Tax
Matters Partner shall prepare Internal Revenue Service Form 8832 (together with
all information required by such form) and shall execute and file such form
(together with such required information) with the Internal Revenue Service,
effective immediately upon the occurrence of the Effective Date. The Tax
Matters Partner shall also prepare and timely file any state, local and other
forms, reports or statements that are necessary to treat the Partnership as a
partnership for purposes of state and local income tax or other taxes. Except
as otherwise required by applicable law, the Partners hereby agree to treat (and
to cause their respective Affiliates to treat) the Partnership as a partnership
for purposes of federal, state and local income tax or other taxes, and not to
take (and cause their respective Affiliates not to take) any position or make
any election in a tax return or otherwise inconsistent with the foregoing. Each
Partner shall indemnify and hold harmless the Partnership and the other Partners
against all Claims (including state or local income tax or other tax
liabilities) arising out of, resulting from or attributable to any breach by
such Partner of this Section 7.5(b).
(c) The Tax Matters Partner shall cause all required federal,
state and local income, franchise, property or other tax returns, including
information returns with respect to the Partnership or its business or assets,
to be timely prepared and filed with the appropriate office of the Internal
Revenue Service or any other relevant taxing jurisdiction at the Partnership's
expense. The Tax Matters Partner may cause the Partnership to retain, at the
Partnership's expense, the independent certified public accountants of the
Partnership to prepare or review the necessary federal income tax returns and
information returns for the Partnership. As promptly as practicable, and in any
event in sufficient time to permit timely preparation and filing by each Partner
of its respective income or other tax returns, the Partnership shall deliver to
each Partner a copy of each income tax return or tax report filed by the
Partnership and any required information, reports and schedules.
(d) Each Partner shall provide such information to the Tax
Matters Partner, if any, as may be reasonably needed by the Partnership for
purposes of preparing any required tax return or information return, PROVIDED
that such information is readily available from such Partner's books and
records.
(e) At least forty-five days prior to the filing of any tax
return referred to in Section 7.5(c) on or measured by net or gross income or
net or gross profits or at least fifteen days prior to the filing of any other
tax return referred to in Section 7.5(c), the Tax Matters Partner shall
distribute or cause
- 19 -
to be distributed to each Partner a final draft of any such tax return and any
Partner wishing to do so may consult with any officer of the General Partner
with respect to the contents of such tax return. Any Partner may protest to the
General Partner or question the manner in which an item is reported or
characterized on the Partnership tax return. If the General Partner shall so
determine, adjustments shall be made to the relevant tax return of the
Partnership.
(f) The Tax Matters Partner shall represent the Partnership in
connection with any tax audit, examination or other administrative or judicial
proceedings involving the tax matters of the Partnership and, in connection
therewith, shall cause the Partnership to retain at the Partnership's expenses,
counsel and other advisors selected by the General Partner. Each Partner shall
have the right to participate in any such audit, examination or other
administrative or judicial proceedings. The Tax Matters Partner shall not
extend (or agree to extend) any applicable statute of limitations, make any
election, settle any issue or take any other action binding on the Partnership
or any other Partner in connection with any such tax audit, examination or other
administrative or judicial proceedings without the prior written consent of all
Partners. Any disagreement among the Partners arising in connection with any
such tax audit, examination or other administrative or judicial proceedings
shall be resolved by the General Partner. The Tax Matters Partner shall
promptly deliver to each Partner copies of all notices and communications with
respect to the tax matters of the Partnership received from the Internal Revenue
Service or any other taxing authority. Section 7.5(e) shall apply MUTATIS
MUTANDIS with respect to any written submission to be filed with the Internal
Revenue Service or any other taxing authority. Neither the Tax Matters Partner
nor the Partnership shall be liable for any additional tax, interest or
penalties payable by a Partner or any fees or expense of separate counsel or
other advisors retained by such Partner to represent such Partner in any tax
audit, examination or other administrative or judicial proceedings relating to
the tax items of the Partnership.
(g) The provisions of this Section 7.5 shall survive the
termination of the Partnership or the termination of any Partner's Interest and
shall remain binding on the Partners for as long a period of time as is
necessary to resolve with the Internal Revenue Service any and all matters
regarding the federal income taxation of the Partnership or the Partners.
6 RESERVES. The General Partner may from time to time in its
discretion establish reasonable cash or cash equivalent reserves.
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ARTICLE 8
RIGHTS AND OBLIGATIONS OF PARTNERS
1 LIMITED LIABILITY. (a) Each Limited Partner's liability with
respect to the Partnership and any subsidiary of the Partnership shall be
limited as provided in the Act, this Agreement or any applicable law. A Limited
Partner shall not be personally liable for any debts, obligations, liabilities
or losses of the Partnership, or of any subsidiary of the Partnership, as the
case may be, whether arising in contract, tort or otherwise, beyond its
respective Capital Contribution to the Partnership and its pro rata portion of
the Partnership's undistributed profits, except as may otherwise be provided for
by law. No Partner shall have any liability for the restoration of the deficit
of such Partner's Capital Account and the return of the Capital Contribution of
any other Partner unless otherwise provided in this Agreement.
(b) The Partners shall not be required to lend any funds to the
Partnership. Each Partner shall only be liable to make payment of its
respective Capital Contributions as and when due hereunder or as agreed by all
of the Partners. If and to the extent a Partner's Capital Contributions shall
be fully paid, such Partner shall not, except as required by the express
provisions of the Act regarding repayment of sums wrongfully distributed to
Partners, be required to make any further contributions to the Partnership or
any subsidiary thereof.
2 ACCESS TO INFORMATION; RECORDS. Each Partner has the right to
obtain from the Partnership from time to time, upon demand for any purpose
related to the Partner's interest as a Partner of the Partnership, information
regarding the status of the Partnership's Business and financial condition, a
copy of any written Partnership agreement or other document, and any information
required to be provided under this Agreement or the Act.
3 INDEMNIFICATION. (a) The Partnership shall, to the fullest
extent permitted by law, indemnify and hold harmless each Partner and its
Affiliates, each agent of the Partnership, and any control person (as such term
is defined in the Securities Act of 1933, as amended, and the rules and
regulations thereunder), director, officer, employee, member and agent of each
Partner and its Affiliates (collectively, the "INDEMNIFIED PERSONS"), from and
against any and all losses, liabilities, damages, claims, costs and expenses
whatsoever (including without limitation fees and expenses and any court costs)
("CLAIMS") arising out of, resulting from or attributable to any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Partnership after the date hereof and in a manner reasonably believed to be
within the scope of the authority conferred on it by this Agreement, PROVIDED
that no indemnity shall be payable hereunder with respect to any liability
incurred by such
- 21 -
Indemnified Person by reason of its gross negligence or willful misconduct, or
in the case of a Partner, breach of such Partner's obligations under this
Agreement or any Ancillary Agreement.
(b) Expenses incurred by an Indemnified Person in defense or
settlement of any Claim that may be subject to a right of indemnification
hereunder may be advanced by the Partnership prior to the final disposition
thereof upon receipt of an undertaking by or on behalf of the Indemnified Person
to repay such amount if it shall ultimately be determined that the Indemnified
Person is not entitled to be indemnified by the Partnership.
(c) The Partnership shall make all indemnification provided for
pursuant to this Section 8.3 solely out of and to the extent of Partnership
assets and no Partner shall have personal liability on account thereof.
4 INSURANCE. The Partnership may purchase and maintain insurance,
to the extent and in such amounts as the Partners shall deem reasonable, on
behalf of Indemnified Persons and such other Persons as the Partners 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.
ARTICLE 9
TRANSFERS OF INTERESTS;
RIGHTS OF FIRST OFFER
1 GENERAL RESTRICTION. No Limited Partner may, directly or
indirectly, sell, transfer, encumber or otherwise dispose of (any such act, a
"TRANSFER"), its Interest to any Person without the written consent of each
other Partner, except as permitted by this Article 9 and in accordance with
applicable law. A Limited Partner shall provide prior written notice to each
other Partner of any such proposed Transfer. The General Partner may not
transfer its Interest.
2 RIGHT OF FIRST OFFER. (a) If, after the second anniversary of
the Closing Date, a Limited Partner (the "OFFERING LIMITED PARTNER") desires to
Transfer all (but not less than all) of its Interest (collectively, the "OFFERED
INTEREST"), the Offering Limited Partner shall deliver to each of the other
Limited Partners (the "OFFERED LIMITED PARTNERS") a written notice (the "OFFER
NOTICE") specifying all of the material terms of the proposed Transfer (the
"OFFER"), including the consideration for which the Offering Limited Partner
proposes to Transfer the Offered Interest and any copies of any agreement or
documents to be executed or delivered in connection with the
- 22 -
proposed Transfer. Thereafter, the Offered Limited Partners shall have the
exclusive right for a period of 60 days after receipt of the Offer Notice to
purchase all, but not less than all, of the Offered Interest upon the terms and
conditions contained in the Offer Notice.
(b) Each Offered Limited Partner shall have 60 days from the date
the Offer Notice is given in which to notify the Offering Limited Partner
whether it elects to purchase the Offered Interest set forth in such Offer. In
the event some but not all of the Offered Limited Partners accept the Offer, the
Offering Limited Partner shall retransmit the Offer with respect to such
remaining Offered Interest to those Offered Limited Partners electing to accept
the Offer. Within 10 days from the date such second offer is made, each such
Offered Limited Partner will notify the other Offered Limited Partners whether
it elects to purchase some or all of the remaining Offered Interest, it being
understood that if such other Offered Limited Partners together indicate an
intention to purchase such portion of the Offered Interest greater than the
entire Offered Interest, then such Offered Interest shall be allocated PRO RATA
among such of the Offered Limited Partners as accepted such second offer, in the
same proportion that each of their respective Interests bears to the aggregate
Interests held by such Offered Limited Partners.
(c) After the completion of the procedures in Section 9.2(a) and
(b), if the Offered Limited Partners elect not to purchase all of the Offered
Interest within the 60-day period described in Section 9.2(a), the Offering
Limited Partner shall have the right during the ensuing 120-day period to
Transfer its Interest to a third party, on terms no more favorable to such third
party than the terms set forth in the Offer Notice.
(d) Upon consummation of any sale to a third party by an Offering
Limited Partner pursuant to this Section 9.2, the Offering Limited Partner shall
promptly notify the other Limited Partners as to the circumstances thereof,
including the date of the sale, the price, the identity of the purchaser and the
identity of the ultimate beneficial owner.
(e) No Limited Partner shall offer or transfer its Interest
pursuant to this Section 9.2 to any Offered Limited Partners or other Person
without concurrently offering and transferring all of such Limited Partner's
interest in the General Partner to the same Offered Limited Partners or other
Person in accordance with Section 9.2 of the Limited Liability Company
Agreement.
3 BUY/SELL OPTION. At any time after the second anniversary of the
Closing Date, any Limited Partner (the "INITIATING LIMITED PARTNER") may deliver
to the other Limited Partner a written bid (the "BID") which sets forth a cash
price at which it would either (i) sell all, but not less than all, of its then
current Interest to the other Limited Partner or
- 23 -
(ii) purchase all, but not less than all, of the other Limited Partner's
Interest, which price shall be an amount at least equal to five times the
average EBITDA as shown in the Strategic Plan of the Partnership (approved by
the General Partner in accordance with Section 6.4(i) of the Limited Liability
Company Agreement) for each of the next succeeding three years times the
percentage of the total Interests in the Partnership held by the Limited Partner
whose Interest is to be sold or purchased, as applicable, unless otherwise
agreed by the Limited Partner receiving such Bid. The first Bid so delivered
shall control. If two Bids are delivered at the same time, the higher Bid shall
control. Within 25 days after receipt of the Bid, the Limited Partner to which
the Bid was delivered must give the Initiating Limited Partner written notice
(the "BUY-SELL NOTICE") that it is either selling all of its Interest at such
price or purchasing all of the Initiating Limited Partner's Interest at such
price. Failure to give a Buy-Sell Notice within the required time shall be
deemed an election by the Limited Partner receiving the Bid not to purchase the
Initiating Limited Partner's Interest and to agree to sell all of its Interest
to the Initiating Party. No Limited Partner shall deliver a Bid to the other
Limited Partner or sell to, or purchase from, the other Limited Partner its
Interest pursuant to this Section 9.3 without concurrently delivering a bid and
either selling all of its interest in the General Partner to, or purchasing all
of the other Limited Partner's interest in the General Partner from, the other
Limited Partner in accordance with Section 9.3 of the Limited Liability Company
Agreement.
4 TRANSFERS TO AFFILIATES. A Limited Partner may Transfer all (but
not less than all) of its Interest to an Affiliate if prior to such Transfer (A)
such Limited Partner gives notice of the proposed Transfer to each of the other
Partners, identifying the facts that make it an Affiliate of such Limited
Partner, and (B) the proposed transferee furnishes an assumption agreement or
agreements to the Partnership in accordance with Section 9.5 of this Agreement.
No Transfer by a Limited Partner to an Affiliate shall release or discharge, or
be deemed or construed as releasing or discharging, such Limited Partner from
any of its covenants, agreements, duties or obligations hereunder regardless of
whether such covenants, agreements, duties or obligations are required to be
performed before or after the effective date of such Transfer. No Limited
Partner shall transfer its Interest to an Affiliate pursuant to this Section 9.4
without concurrently transferring all of such Limited Partner's interest in the
General Partner to the same Affiliate in accordance with Section 9.4 of the
Limited Liability Company Agreement.
5 SUBSTITUTION OF A LIMITED PARTNER. No Transfer of an Interest
pursuant to Section 9.2 or 9.4 of this Agreement shall be effective until the
transferee has delivered to each of the other Partners a written instrument
reasonably satisfactory to counsel for such Partners, whereby it (I) accepts,
and agrees to be bound by, the terms and provisions of this Agreement, (II)
- 24 -
assumes all of the liabilities and obligations of the transferor as a Limited
Partner hereunder theretofore or thereafter incurred pursuant to this Agreement
and attributable to the Interest transferred to it, and (III) represents and
warrants that it has the capability and authorizations necessary to satisfy all
of the obligations hereunder being assumed by it, financial and otherwise. Upon
effectiveness of the transfer, the transferee shall become a "SUBSTITUTED
LIMITED PARTNER" and a party to this Agreement, the respective Interest of the
transferor shall be reduced accordingly, and the transferor shall be relieved of
all liabilities and obligations as a Partner hereunder attributable to the
acquired Interest of the transferee.
6 NONRECOGNITION OF CERTAIN TRANSFERS. Notwithstanding any other
provision of this Agreement, any Transfer in contravention of any of the
provisions of this Agreement shall be void and ineffective, and shall not bind,
or be recognized by, the Partnership or any Partner.
ARTICLE 10
TERMINATION
1 EVENTS OF DISSOLUTION. (a) In accordance with Section 17-801 of
the Act, the Partnership shall be dissolved and the affairs of the Partnership
wound up upon the occurrence of any of the following events:
(i) the Bankruptcy, dissolution, withdrawal, or resignation
of a Partner or the occurrence of any other event which
terminates the continued membership of a Partner in the
Partnership, unless, if there is at least one remaining
Limited Partner, all of the remaining Partners consent to
continuing the business of the Partnership within 90 days
following the occurrence of any such event;
(ii) the entry of a decree of judicial dissolution under
Section 17-802 of the Act;
(iii) the unanimous consent of the Partners to dissolve the
Partnership;
(iv) if a Partner shall attempt to Transfer any Interests
other than as permitted pursuant to Article 9, upon the
election of all of the other Limited Partners; and
(v) upon the sale of all or substantially all of the assets
of the Partnership.
- 25 -
(b) Dissolution of the Partnership shall be effective on the day on
which the event occurs giving rise to the dissolution, but the Partnership shall
not terminate until the assets of the Partnership shall have been distributed as
provided herein and a certificate of cancellation of the Certificate has been
filed with the Secretary of State of the State of Delaware.
2 LIABILITY FOR WRONGFUL DISSOLUTION. If a Partner causes a
dissolution of the Partnership pursuant to the provisions of Section 10.1(a)(i),
it shall be deemed to have wrongfully dissolved the Partnership and be liable
for any damages caused to the Partners that were not responsible for the event
causing dissolution, and in addition to any other remedies the Partnership or a
Partner may have against any such wrongfully defaulting Partner, the entire cost
and expense of conducting any proceeding to dissolve, liquidate and terminate
the affairs of the Partnership, including the cost of any judicial or
arbitration proceeding, and in each case all other direct out-of-pocket costs
and expenses of the Partnership resulting from such dissolution and liquidation,
shall be borne by such wrongfully defaulting Partner. The Partnership
may offset the amount of all such costs and expenses from amounts which the
Partnership owes any such wrongfully defaulting Partner.
3 DISTRIBUTIONS TO PARTNERS. In a dissolution, the Partners shall
take such actions as are necessary to liquidate the Partnership and cause its
dissolution as soon as possible and shall each be entitled to receive an amount
of the net proceeds from such liquidation as provided in Section 10.4. A
dissolution shall not relieve or release any Partner or its guarantor from any
liability arising from a breach or default of any of its obligations under this
Agreement or any of the other Ancillary Agreements.
4 APPLICATION OF ASSETS. Unless otherwise specified herein, in the
event of a termination or dissolution, the General Partner shall conduct only
such activities as are necessary to wind up its affairs (including the sale in
an orderly manner of the assets of the Partnership), and the assets of the
Partnership shall be applied in the manner and in the order of priority set
forth as follows: (I) first, to creditors of the Partnership, including Partners
who are creditors, to the extent otherwise permitted by law, in satisfaction of
the liabilities of the Partnership (whether by payment or the making of
reasonable provision for payment thereof); and (II) second, to the Partners in
proportion to, and to the extent of, the positive balances of the Capital
Accounts of the Partners (after reflecting in such Capital Accounts all
adjustments and allocations thereto required to be made under this Agreement).
It is understood and agreed that all payments under this Section 10.4
shall be made as soon as reasonably practicable and in any event by the end of
the Fiscal Year in which such
- 26 -
winding up occurs or, if later, within 90 days after the date of such winding
up.
5 TERMINATION. Upon completion of the foregoing, the General Partner
or the liquidating trustee shall execute, acknowledge and cause to be filed a
certificate of cancellation of the Partnership with the Secretary of State of
the State of Delaware as required by the Act, and upon such certificate of
cancellation becoming effective, the Partnership shall be terminated.
ARTICLE 11
CONFIDENTIAL INFORMATION;
COVENANT NOT TO COMPETE
1 CONFIDENTIAL INFORMATION. During the existence of the Partnership,
each Partner (I) shall maintain, and shall use its best efforts to cause its
Affiliates, officers, directors, employees, accountants, counsel and agents to
maintain, the confidentiality of any confidential information concerning the
Joint Venture Products, the Partnership, the Business of the Partnership or any
Partner that is not otherwise generally available to the public and (II) without
the prior consent of the Partnership or of any Partner that would be affected,
shall not use or disclose to any third party (other than their respective
financial advisors, attorneys and other agents and representatives) such
confidential information, except (A) in a manner expressly provided for in any
of the Ancillary Agreements, (B) after receipt of a binding order of
confidentiality, if available, in enforcing its rights under this Agreement or
any Ancillary Agreement before a court, governmental agency, or arbitrator of
competent jurisdiction, (C) to a prospective purchaser of any of its Interest,
PROVIDED such purchaser first executes a confidentiality agreement in form and
substance reasonably satisfactory to the other Partners, and (D) to any
governmental agency if it believes in good faith that such disclosure is
required by applicable law or by governmental policy, PROVIDED that prior to
making any such disclosure such Partner shall, unless prohibited by such
governmental agency, give written notice (identifying such agency and describing
the general nature of such disclosure) to, and consult with, the other Partners.
2 COVENANT NOT TO COMPETE. Each Partner agrees that during the
existence of the Partnership neither it nor any of its Affiliates (except in
connection with fundamental corporate transactions, such as mergers, spin-offs
and sales of substantially all of the capital stock or assets of either Accuride
or Kaiser or any of their respective parent corporations) will (and Accuride Sub
agrees to cause Accuride not to), directly or indirectly, manufacture or sell,
or participate whether by ownership interest or otherwise in the manufacturing
- 27 -
or sale of, any Joint Venture Products, other than Joint Venture Products
manufactured by and sold through the Partnership, except that (I) Accuride shall
be permitted to sell Joint Venture Products manufactured and sold pursuant to
the Speedline Agreements to the extent set forth in Section 6.7 of the
Contribution Agreement, (II) Kaiser shall be permitted to sell the Kaiser
Excluded Inventory,(iii) Accuride shall be permitted to sell the Accuride
Retained Inventory and (iv) subject to Section 6.8 of the Contribution
Agreement, Accuride shall be permitted to perform its obligations under the
Accuride Excluded Contracts, PROVIDED that for the purposes of this Section 11.2
only, the term "Joint Venture Products" shall include any wheels of the size and
type described in clause (i) of the definition of Joint Venture Products in
Article 1 manufactured from non-ferrous materials (other than thermal plastics
and thermal sets). Notwithstanding the foregoing, if at any time a Limited
Partner or Accuride or any of their respective Affiliates wishes to manufacture
or sell Joint Venture Products that at the time are not being manufactured and
sold by the Partnership, it shall be free to do so if (I) it first gives written
notice to the Partnership of its desire to manufacture or sell such Joint
Venture Products and (II) the Partnership does not elect to undertake such
business within 180 days of the date upon which such notice is given (which need
not be on the same terms as set forth in such notice, but may include
alternative arrangements appropriate to the Partnership), PROVIDED that in
determining whether or not the Partnership shall undertake such business,
Accuride or the Limited Partner proposing to undertake such business shall vote
in favor of the Partnership's undertaking such business.
ARTICLE 12
MISCELLANEOUS
1 WAIVER, AMENDMENT, ETC. This Agreement may not be amended or
supplemented, and no waivers of or consents to departures from the provisions
hereof shall be effective, unless set forth in a writing signed by, and
delivered to, each Partner. No failure or delay of any Partner in exercising
any power or right under this Agreement will operate as a waiver thereof, nor
will any single or partial exercise of any right or power, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.
2 NOTICES. Any notice or other communication required or permitted to
be given hereunder or for the purposes hereof to any party shall be in writing
and shall be sufficiently given if (I) delivered personally, (II) mailed by
certified or registered mail, postage prepaid, (III) transmitted by facsimile
(and confirmed by certified or registered mail) or (IV) sent by next-day or
overnight mail or delivery to:
- 28 -
(a) Accuride Sub at:
Accuride Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇/▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Kaiser at:
▇▇▇▇▇▇ Aluminum & Chemical Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Aluminum & Chemical Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and,
Kramer, Levin, Naftalis & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) the Partnership at:
AKW General Partner L.L.C.
c/o AKW L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
- 29 -
or at such other address or to such other person's attention as the party to
whom such notice is to be given shall have last notified the party giving the
same in the manner provided in this Section. Any notice so delivered to the
party to whom it is addressed shall be deemed to have been given and received
(1) if by personal delivery, on the day of such delivery, (2) if by certified or
registered mail, on the seventh day after mailing thereof, (3) if by facsimile,
the day on which such facsimile was sent or (4) if by next-day or overnight mail
delivery, on the day delivered, PROVIDED that if any such day is not a Business
Day then the notice shall be deemed to have been given and received on the
Business Day next following such day.
3 MATERIALS. All written materials relating to the business of the
Partnership, including, without limitation, press releases and marketing
materials prepared by the Partnership or any Partner shall be approved by the
General Partner prior to use, provided that written materials required by law or
the rules of any stock exchange to be filed by any Partners shall not require
such approval.
4 WORD MEANINGS. The words such as "herein", "hereinafter", "hereof"
and "hereunder" refer to this Agreement as a whole and not merely to a
subdivision in which such words appear unless the context otherwise requires.
The singular shall include the plural and the masculine gender shall include the
feminine and neuter, and vice versa, unless the context otherwise requires.
5 BINDING PROVISIONS. The covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, the heirs, legal
representatives, successors and assigns of the respective parties hereto.
6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (OTHER THAN ANY CONFLICT OF
LAWS RULE WHICH MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION). IN THE EVENT OF A CONFLICT BETWEEN ANY PROVISION OF THIS
AGREEMENT AND ANY NON-MANDATORY PROVISION OF THE ACT, THE PROVISION OF THIS
AGREEMENT SHALL CONTROL AND TAKE PRECEDENCE.
7 ARBITRATION. (a) Any dispute, controversy or claim arising out of
or relating to this Agreement or the breach, validity or termination thereof
shall be finally settled by arbitration. The arbitration shall be conducted in
accordance with the American Arbitration Association's commercial arbitration
rules in effect at the time of arbitration, except as modified herein or by
mutual agreement of the parties. The seat of the arbitration shall be New York,
New York, PROVIDED that the arbitrators may hold hearings in such other
locations as the arbitrators determine to be most convenient and efficient for
all
- 30 -
the parties under the circumstances. Notwithstanding anything to the contrary
in Section 12.6, the arbitration shall be governed by the Federal Arbitration
Act. The appointing authority shall be the American Arbitration Association.
The arbitration shall be conducted by three arbitrators.
(b) Any award rendered by the arbitrators shall be in writing and
shall be final and binding upon the parties, and may include an award of costs,
including reasonable attorneys' fees and disbursements. Judgment upon the award
rendered may be entered in any court having jurisdiction thereof or having
jurisdiction over the parties or their assets.
8 SEPARABILITY OF PROVISIONS. Each provision of this Agreement shall
be considered separable and if for any reason any provision or provisions herein
are determined to be invalid, unenforceable or illegal under any existing or
future law, such invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid,
enforceable and legal. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
9 TABLE OF CONTENTS; HEADINGS. The table of Contents and headings in
this Agreement are for descriptive purposes only and shall not control or alter
the meaning of this Agreement as set forth in the text.
10 FURTHER ASSURANCES. The Partners shall execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intents and purposes of this Agreement.
11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement.
12 ENTIRE AGREEMENT. This Agreement, together with the Contribution
Agreement and the other Ancillary Agreements, embodies the entire agreement and
understanding between the parties relating to the subject matter hereof and
thereof, and supersedes any prior oral or written agreements, commitments or
terms, other than Section 13 of the letter, dated September 17, 1996, as
amended, from Accuride to Kaiser, regarding the Joint Venture, except for the
penultimate paragraph of such Section 13.
13 SURVIVAL OF CERTAIN PROVISIONS. The obligations of the Partnership
and of each Partner pursuant to Sections 6.3 and 7.5 and Articles 8, 10 and 11
shall survive the termination or expiration of this Agreement.
14 SPECIFIC PERFORMANCE. The parties hereto agree that any damages
available at law for a breach of this Agreement
- 31 -
would not be an adequate remedy. Therefore, the provisions hereof and the
obligations of the parties hereunder shall be enforceable in a court of equity,
or other tribunal having jurisdiction, by a decree of specific performance, and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies and all other remedies provided for in this Agreement
shall, however, be cumulative and not exclusive and shall be in addition to any
other remedies which any party may have under this Agreement or otherwise.
- 32 -
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
ACCURIDE VENTURES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ ALUMINUM & CHEMICAL
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
AKW GENERAL PARTNER L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ACCEPTED AND AGREED:
AKW L.P.
By: AKW GENERAL PARTNER L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
- 33 -
In order to induce the parties to enter
into this Agreement, the undersigned,
Accuride Corporation, a Delaware corporation,
being the sole stockholder of Accuride Sub,
hereby jointly and severally unconditionally
guarantees the performance by Accuride Sub of
all of its obligations under the foregoing
Agreement strictly in accordance with the
terms thereof. This guarantee shall be
effective despite any renewal, modification
or waiver by the parties hereto of Accuride
Sub's obligations under this Agreement, and
no such modification, renewal or waiver
shall operate to limit, defeat, modify or
otherwise affect this guaranty.
ACCURIDE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Dated as of May 1, 1997
- 34 -
SCHEDULE A
CAPITAL
PARTNER CONTRIBUTION INTEREST
------- ------------ --------
General Partner:
AKW General Partner L.P.
Limited Partners:
Accuride Ventures, Inc.
▇▇▇▇▇▇ Aluminum & Chemical
Corporation