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EXHIBIT 10.31
GENERAL PARTNERSHIP AGREEMENT
OF
TUCSON PRECISION PRODUCTS
THIS GENERAL PARTNERSHIP AGREEMENT is entered into this 18th day of
August, 1995, by and between Iwaki Diecast U.S.A., Inc., a company organized
and existing under the laws of Arizona ("IDC") and Walbro Tucson Corp., a
company organized and existing under the laws of the State of Delaware
("Walbro") (each of the parties hereto are hereinafter referred to,
individually, as a "Partner," and collectively as the "Partners").
ARTICLE I
FORMATION OF PARTNERSHIP
The parties hereby enter into a general partnership (the
"Partnership") under the provisions of the Uniform Partnership Act of the State
of Delaware (the "Act") and, except as herein otherwise expressly provided, the
rights and liabilities of the Partners shall be as provided in that Act.
ARTICLE II
NAME
The business of the Partnership shall be conducted under the name
"Tucson Precision Products". The parties shall promptly comply with all laws
regarding the use of such name as an assumed name by the Partnership, if
necessary.
ARTICLE III
DEFINITIONS
3.1 "Agreement" means this Partnership Agreement, as amended,
modified or supplemented from time to time.
3.2 "Capital Account" shall mean, with respect to any Partner, the
separate "book" account which the Partnership shall establish and maintain for
such Partner in accordance with Section 704(b) of the Code.
3.3 "Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time. Any reference herein to a specific
section of the Code shall be deemed to include a reference to any corresponding
provision of succeeding laws.
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3.4 "Management Committee" shall mean a five-member committee,
three of which shall be appointed by Walbro, in its sole discretion and two of
which shall be appointed by IDC, in its sole discretion.
3.5 "Participating Percentage" means, with respect to any Partner,
subject to adjustment in accordance with this Agreement, the percentage
indicated on Schedule A, attached hereto which initially represents each
Partner's interest received in exchange for its capital contribution.
ARTICLE IV
PURPOSE
The purpose of the Partnership is to (i) engage in the manufacture and
sale of certain die cast parts and assemblies (described in greater detail on
Exhibit 4) in North America (Canada, Mexico and the United States), both as
original equipment and replacement parts and (ii) engage in any and all
operations, activities and businesses which are in the unanimous judgment of
the Management Committee, convenient, necessary or incidental to the
accomplishment of the foregoing Partnership purpose, including any operations,
businesses or activities permitted under the Act and any other applicable law
or regulation.
ARTICLE V
NAMES AND BUSINESS ADDRESSES OF PARTNERS
The names and business addresses of the Partners are as set forth in
Schedule A attached hereto and made a part hereof.
ARTICLE VI
TERM
The Partnership shall continue until December 31, 2015, unless sooner
terminated as hereinafter provided.
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ARTICLE VII
PRINCIPAL PLACE OF BUSINESS
The principal place of business of the Partnership shall be ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (USA) or such other place or
places as the Partners may designate.
ARTICLE VIII
CAPITAL AND CONTRIBUTIONS
8.1 The initial capital of the Partnership is as set forth on
Schedule A attached hereto, and, simultaneous with the execution hereof, each
of the Partners shall contribute to the capital of the Partnership the amount
of cash indicated on said Schedule A.
8.2 No Partner shall be obligated to make any additional capital
contributions unless the Management Committee unanimously shall determine that
such is required for the operation of the Partnership's business. In the event
additional capital is contributed by the Partners pursuant to this SECTION 8.2,
the Partners shall be obligated to contribute their pro rata portion (as
determined by their respective Participating Percentage at the time of such
contribution) of such additional capital requirement. No Partner shall be
allowed to make any voluntary capital contributions without the prior written
consent of the other Partner.
8.3 No withdrawal of capital shall be made by any Partner except
with the unanimous approval of all of the members of the Management Committee,
and no interest shall be paid on the capital contributed by any Partner.
8.4 If the Management Committee shall unanimously determine that
additional financing is necessary or desirable, and that such financing can
most advantageously be provided by loans from or guaranteed by the Partners,
such loans or guarantees, as may be requested by the unanimous vote of the
Management Committee, shall be provided simultaneously by each of the Partners
in amounts that are in proportion to their respective Participating
Percentages. The Partnership shall not accept any voluntary loans from any
Partners without the prior written consent of every other non-lending Partner.
ARTICLE IX
DISTRIBUTIONS
9.1 Subject to the provisions of SECTION 9.2 below, when, in the
discretion of all of the members of the Management Committee, the Partnership
has cash available for distribution ("Distributions"), such funds shall be
distributed among the Partners in accordance with their
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respective Partnership Percentages at the time of such Distribution. The
Partnership shall comply with any federal, state, local or foreign tax
withholding requirements in making such distributions.
9.2 Prior to making any annual Distributions, if any, the
Partnership shall, for each taxable year in which the Partnership reports net
taxable income, distribute to each Partner, no later than seventy-five days
after the end of such taxable year, an amount equal to the sum of (i) the
product of such Partner's taxable income as shown on its Schedule K-1 for such
taxable year (such taxable income to be reduced, but not below zero, by the
excess, if any, of the cumulative allocations of taxable deduction and loss
pursuant to ARTICLE X to such Partner for all prior taxable years over the
cumulative allocations of taxable income pursuant to ARTICLE X to such Partner
for all prior taxable years), multiplied by the maximum marginal federal income
tax rate in effect for such taxable year for non-S status corporations, plus
(ii) an amount (which shall be proportionate as to all Partners based upon
Participating Percentages) which is intended to approximate, as nearly as
possible, such Partner's pro rata share (based on the taxable income shown on
the Partners' Schedule K-1's) of any applicable state taxes (assuming maximum
applicable tax rates for non-S status corporations) for which the Partners are
responsible based on the income of the Partnership, all as determined in good
faith by the unanimous determination of the Management Committee, whose
determination shall be final and binding. Distributions pursuant to this
SECTION 9.2 shall be treated as Distributions to each Partner for the purposes
of determining the aggregate amount of available cash distributed to each
Partner under SECTION 9.1 and SECTION 17.2.
ARTICLE X
ALLOCATIONS OF PROFITS AND LOSSES
Except as otherwise required by Section 704(b) of the Code, each item
of the Partnership's income, gain, loss, deduction or credit from operations
shall be allocated to the Partners in accordance with their Participating
Percentages.
ARTICLE XI
BOOKS OF ACCOUNT AND RECORDS
Proper and complete records and books of account shall be kept by the
Management Committee in which shall be entered fully and accurately all
transactions and other matters relative to the Partnership's business as
usually entered into records and books of account maintained by persons engaged
in business of a like character. The Partnership books and records shall be
kept on an accrual basis. The books and records shall at all times be open to
the reasonable inspection and examination by the Partners or their duly
authorized representatives during reasonable business hours. The Management
Committee shall deliver to
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each Partner (i) audited financial statements for each fiscal year of the
Partnership as soon as such audited statements are available, (ii) unaudited
financial statements for each completed quarterly period of the Partnership and
(iii) federal and state Schedule K-1's and any other tax information necessary
for the preparation and timely filing of their respective federal and state
income tax returns. All of the members of the Management Committee shall
approve, in writing, the selection of an independent public accounting firm to
render the necessary accounting and auditing services.
ARTICLE XII
FISCAL YEAR
The fiscal year of the Partnership shall be the calendar year.
ARTICLE XIII
PARTNERSHIP FUNDS
The funds of the Partnership shall be deposited in such bank account
or accounts, or invested in such interest-bearing or non-interest- bearing
investments, as shall be designated by the Partnership. All withdrawals from
any such bank accounts shall be made by the authorized agent or agents of the
Partnership. Partnership funds shall be separately identifiable from those of
any other person or entity.
ARTICLE XIV
MANAGEMENT OF THE PARTNERSHIP
14.1 The Management Committee shall have exclusive authority to
manage the operations and affairs of the Partnership and to make all decisions
regarding the business of the Partnership. Pursuant to the foregoing, it is
hereby agreed that the Management Committee shall have all of the rights and
powers of a general partner as provided in the Act and as otherwise provided by
law and any action taken by the Management Committee shall constitute the act
of and serve to bind the Partnership. In dealing with the Management Committee
acting on behalf of the Partnership, no person shall be required to inquire
into the authority of the Management Committee to bind the Partnership.
Persons dealing with the Partnership are entitled to rely conclusively on the
power and authority of the Management Committee as set forth in this Agreement.
Notwithstanding the foregoing or anything that may be contrary herein, Walbro
shall, in its sole discretion, determine the products to be manufactured and
sold by the Partnership, subject to prior consultation with IDC
representatives; provided, however, in the event Walbro requires that any
products be manufactured which represents a new product that
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is substantially different than any of the products set forth on Exhibit 4 and
such new product requires significant capital expenditures by the Partnership,
the Management Committee must unanimously determine that it is in the best
interests of the Partnership to manufacture such new products. Subject to the
foregoing, the unanimous approval of the Management Committee shall be required
for (i) approval of any business plans, marketing plans and operating
projections, (ii) any material change in the business of the Partnership, (iii)
any borrowings by the Partnership in excess of $250,000 in principal amount,
(iv) any material transactions between the Partnership and any Partner (or
affiliate of any Partner). Furthermore, the written consent of both Partners
shall be required for the consummation of (a) the admission of any additional
partners, (b) any amendments to this Agreement, (c) any investment by the
Partnership in another entity, (d) the sale of all or substantially all of the
assets of the Partnership, (e) dissolution of the Partnership and (f) any
sublicense of the technology which is the subject of the License Agreement (as
defined below) by the Partnership to an unaffiliated third party. Any
disagreement between the members of the Management Committee shall be submitted
to all of the Partners for resolution; which resolution shall be approved by
both Partners.
14.2 Subject to the foregoing, the Management Committee is hereby
granted the right, power and authority to do on behalf of the Partnership all
things which, in its sole judgment, are necessary, proper or desirable to carry
out the aforementioned duties and responsibilities, including but not limited
to the right, power and authority to lease, sell, exchange, refinance or grant
an option for the sale of all or any portion of the property of the Partnership
at such rental, price or amount, for cash, securities or other consideration
and upon such other terms as the Management Committee in its sole discretion
deems proper.
14.3 The Management Committee shall have the authority to delegate
its day-to-day managerial authority to such officers, employees or agents of
the Partnership, and to give such employees or agents such titles, as the
Management Committee shall from time to time designate, and to revoke or change
such managerial authority and change or eliminate such titles in the sole
discretion of the Management Committee. Initially, the officers of the
Partnership shall consist of a General Manager, Business Manager, and
Engineering Manager. Walbro shall have the right to appoint the General
Manager and the Business Manager and IDC shall have the right to appoint the
Engineering Manager. Each of Walbro and IDC agree to consult with the other in
connection with their respective appointments of such officer positions. As of
the formation of the Partnership, the officers shall be as follows:
General Manager Kuniaki Hohzawa
Business Manager ▇▇▇▇▇ ▇▇▇▇▇▇▇
Engineering Manager ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The authority of such officers shall be limited to the operations of the
Partnership which occur in the normal and ordinary course of business. Any
matters which arise in connection with the operations of the Partnership which
are outside of the normal and ordinary course of business of the Partnership
shall immediately be submitted to the Management Committee for
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approval, in accordance with the terms hereof. Upon such approval, the
officers shall have the authority to bind the Partnership with respect to such
matters.
14.4 The "Tax Matters Partner" of the Partnership shall be
designated by the Management Committee.
14.5 Neither the Management Committee, any member or agent of the
Management Committee or any officer of the Partnership shall be liable,
responsible or accountable in damages or otherwise to the Partnership or any
Partner for any action taken or failure to act on behalf of the Partnership
within the scope of the authority conferred on the Management Committee or any
such officer by this Agreement or by law unless such action or omission was
performed or omitted fraudulently or in bad faith or constituted gross
negligence.
The Partners specifically acknowledge, without limiting the general
applicability of this SECTION 14.5, that the Management Committee and the
officers of the Partnership shall not be liable, responsible or accountable in
damages or otherwise to the Partnership or any Partner with respect to any
action taken by the Management Committee or any such officer in conjunction
with an audit of the Partnership for income tax or other purposes.
14.6 The Management Committee shall not be required to manage the
Partnership as its sole and exclusive function and may have other business
interests and may engage in other activities in addition to those relating to
the Partnership. Neither the Partnership nor any Partner shall have any right
by virtue of this Agreement or the partnership relationship created hereby in
or to such other ventures or activities or to the income or proceeds derived
therefrom, and the pursuit of such ventures and activities, even if competitive
with the business of the Partnership, shall not be deemed wrongful or improper.
All expenses of the Management Committee incurred in the performance of its
duties hereunder shall be borne by the Partnership.
14.7 No Partner shall have the authority to act for or bind the
Partnership except with the approval of the Management Committee.
14.8 The Partnership shall indemnify and hold harmless all members
of the Management Committee and all officers of the Partnership, from and
against any loss, expense, damage or injury suffered or sustained either by
reason of any acts, omissions or alleged acts or omissions arising out of their
activities on behalf of the Partnership, including, but not limited to, any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim, if the acts, omissions or alleged acts or
omissions upon which such actual or threatened action, proceeding or claim is
based were for a purpose reasonably believed to be in the best interests of the
Partnership and were not performed or omitted fraudulently or in bad faith.
Any such indemnification shall only be from the assets of the Partnership.
14.9 Unless otherwise expressly provided herein, all decisions
requiring the consent of the Partners shall be made by the affirmative vote of
each Partner then entitled to vote.
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Unless otherwise expressly provided for herein, all decisions requiring the
approval of the Management Committee shall require the unanimous consent of all
of the members of the Management Committee.
ARTICLE XV
WITHDRAWALS AND TRANSFERS
15.1 Any Partner may withdraw from the Partnership upon one year's
prior written notice to the Partnership. If a Partner withdraws, an "Event of
Default" (as defined below) will be deemed to have occurred on the date such
withdrawal notice is delivered, and the provisions set forth in ARTICLE XVI
shall apply.
15.2 Each Partner agrees not to sell, transfer, assign,
hypothecate, pledge or encumber all or any portion of such Partner's interest
hereunder without the prior consent of all of the Partners. Notwithstanding
the foregoing sentence, a Partner may sell, assign or transfer all, or a part
of, its interest in the Partnership to any person or entity that is an
affiliate of such Partner; provided, however, such transfer must not result in
a deemed termination of the Partnership under Section 708(b)(1)(B) of the Code
which results in adverse tax consequences to the Partnership or any other
non-transferring Partner. The Partners agree that any transfer of a
Partnership interest by any Partner to an affiliate pursuant to this SECTION
15.2 shall be conditioned upon the full assumption by such party of all of the
obligations of the transferring party provided in this Agreement and the Basic
Agreements (as defined below).
ARTICLE XVI
DEFAULTS
16.1 In the case of an "Event of Default" (as defined herein) by
any Partner, then the defaulting party (the "Defaulting Partner") shall
immediately have suspended any all of its rights as a Partner, including,
without limitation, the right to vote and consent or otherwise approve or
disapprove of any actions taken by the Partnership (including in connection
with such Defaulting Partner's rights (or its designee) as a Management
Committee member), except that such Defaulting Partner shall maintain the right
to its economic interest in the Partnership. Unless otherwise specified
herein, if an Event of Default occurs, then the non-defaulting party (the
"Non-Defaulting Partner") may exercise any of the following remedies:
(1) causing the Partnership to be dissolved or
liquidated according to the terms set forth herein and all applicable
laws, or
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(2) purchasing for cash all of the equity
interest in the Partnership then held by the Defaulting Partner at a
purchase price equal to the book value of such equity interest
determined using generally accepted accounting practices, consistently
applied.
16.2 In the event that an Event of Default occurs as a result of a
material breach under any term of (i) the License and Technical Assistance
Agreement (the "License Agreement") between the Partnership and Iwaki Diecast
Co. Ltd., an affiliate of IDC, or (ii) the Walbro Sale Assistance and
Administrative Service Agreement (the "Sales Agreement") between the
Partnership and Walbro Engine Management Corporation, an affiliate of Walbro
(together, the "Basic Agreements"), and such breach is not remedied within a
period of thirty (30) days after receiving written notice of such breach, then
the Non-Defaulting Partner may exercise any of the following remedies:
(1) purchasing for cash all of the equity
interest in the Partnership then held by the Defaulting Partner, at a
purchase price equal to the book value of such equity interest
determined using generally accepted accounting practices, consistently
applied.
(2) require that the Defaulting Partner purchase
for cash all of the equity of the Partnership then held by the
Non-Defaulting Partner, at a purchase price determined pursuant to
SECTION 16.5 below.
16.3 The rights provided in this Agreement shall be in addition to
and not in substitution of any other remedies that may be available to the
Partnership or the Non-Defaulting Partner (including those set forth herein
and/or as may be available by law), and any exercise of such rights shall not
relieve the Defaulting Partner from any accrued obligation or any liability or
damages which are incurred by the Partnership or the Non-Defaulting Partner as
a result of the occurrence of an Event of Default.
16.4 For purposes of this Agreement, an "Event of Default" shall be
deemed to have occurred upon any one of the following occurrences: (i) the
failure by any Partner to make a required capital contribution which is not
made within five (5) days of a delivery of written notice to such Partner of
its failure to remit the required capital contribution, (ii) a Partner (or the
holder of a majority of the equity interest of such Partner) being the subject
of a voluntary or involuntary petition in bankruptcy or insolvency, or of a
petition for relief or reorganization under any bankruptcy or insolvency law,
(iii) breach by a Partner (or an affiliate of any Partner) of any of the terms
of this Agreement or the Basic Agreements which is not cured pursuant to
SECTION 16.2 above or (iv) the withdrawal of a Partner for any reason.
16.5 If an Event of Default occurs and the Non-Defaulting Partner
wishes to require the Defaulting Partner to purchase its Partnership interest,
pursuant to its rights under this ARTICLE XVI, the purchase price for such
Partnership interest shall be equal to its fair market value, as determined by
an independent nationally recognized appraiser, selected by each of the
Defaulting Partner and Non- Defaulting Partner. In the event the Partners can
not agree on an appraiser, each Partner shall choose an appraiser and the two
appraisers shall agree on a third
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appraiser. The determination of such third appraiser and its appraisal shall
be final and binding on the Partners.
16.6 If an Event of Default occurs as a result of a Partner being
the subject of a voluntary or involuntary petition in bankruptcy or insolvency,
or of a petition for relief or reorganization under any bankruptcy or
insolvency law, and the Non-Defaulting Partner does not wish to exercise its
remedies set forth in SECTION 16.1, then the Partnership shall continue in full
force and effect; provided, however, that any successor of a dissolved,
insolvent or bankrupt Partner, as the case may be, shall not become a
substituted Partner in the Partnership. Such successor shall not have any of
the rights of a Partner, except that such successor shall only be entitled to
receive the share of profits and losses of the Partnership, the return of such
capital contributions and any other payments to which such bankrupt Partner
would have been entitled on the date of such Event of Default.
ARTICLE XVII
DISSOLUTION AND TERMINATION OF THE PARTNERSHIP
17.1 The Partnership shall dissolve upon the first to occur of the
following:
(a) expiration of the stated term of the Partnership on
December 31, 2015, as provided in ARTICLE VI hereof;
(b) the withdrawal of a Partner or Partners causing only
one other Partner to remain in the Partnership;
(c) the unanimous written consent or affirmative vote by
the Partners, then entitled to vote, to dissolve the Partnership;
(d) the disposition of all of the Partnership's interest
in its property, including notes received in connection with the sale
thereof; or
(e) by the election of a Non-Defaulting Partner's
pursuant to the terms set forth in ARTICLE XVI.
17.2 In the event of the dissolution of the Partnership, the
Partnership shall terminate, be wound up and liquidated as herein provided.
During such period, the Partners shall continue to share income and losses
during the period of liquidation in the same proportion as immediately prior
thereto, subject to the terms of this Agreement. The proceeds of the
liquidation (after payment of all costs and expenses thereof and the
establishment of reasonable reserves for contingent liabilities) shall be
applied in order of priority as follows:
(a) To the repayment of debts of the Partnership other
than to Partners;
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(b) To the repayment of debts of the Partnership to the
Partners pro rata according to the amount of the Partnership's
indebtedness to each Partner;
(c) To the Partners, to the extent of their respective
Capital Accounts or (if the remaining assets are insufficient for such
purposes), pro rata on the basis of the relative amounts of their
respective Capital Accounts; and
(d) To the Partners, to the extent of any balance
remaining, based on their respective Participating Percentages at the
time of such dissolution.
17.3 Each Partner shall look solely to the assets of the
Partnership for all distributions with respect to the Partnership and such
Partner's capital contributions thereto and shall have no recourse therefor
against the other Partners. No Partner shall have any right to demand or
receive property other than cash upon dissolution and termination of the
Partnership or to demand the return of its capital contributions to the
Partnership prior to dissolution and termination of the Partnership.
ARTICLE XVIII
NOTICES
All notices and demands required or permitted under this Agreement
shall be in writing and may be sent by U.S. mail, first class mail, postage
prepaid, overnight air courier or personal delivery to the Partners at their
addresses as shown from time to time on the records of the Partnership. Any
Partner may specify a different address by notifying the other Partners in
writing of such different address.
ARTICLE XIX
AMENDMENT OF PARTNERSHIP AGREEMENT
This Agreement may be amended only upon the unanimous consent or
affirmative vote of each Partner then entitled to vote.
ARTICLE XX
INDEMNIFICATION OF PARTNERS AND REIMBURSEMENT
20.1 The Partnership shall indemnify and hold harmless all
Partners, from and against any loss, expense, damage or injury suffered or
sustained by either by reason of any acts, omissions or alleged acts or
omissions arising out of their activities on behalf of the Partnership,
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including, but not limited to, any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim, if the acts,
omissions or alleged acts or omissions upon which such actual or threatened
action, proceeding or claim is based were for a purpose reasonably believed to
be in the best interests of the Partnership and were not performed or omitted
fraudulently or in bad faith. Any such indemnification shall only be from the
assets of the Partnership.
20.2 In the event any Partner pays any costs or expenses on behalf
of the Partnership which relate directly to the operations of the Partnership,
such Partner shall submit reasonable supporting documentation evidencing such
payment to the Management Committee. Upon receipt of such supporting
documentation and unanimous approval of the Management Committee, the
Partnership shall promptly reimburse such Partner for such costs and expenses
incurred.
ARTICLE XXI
MISCELLANEOUS
21.1 This Agreement constitutes the entire agreement among the
parties. It supersedes any prior agreement or understandings among them, and
it may not be modified or amended in any manner other than as set forth herein.
21.2 This Agreement and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware, without giving effect to provisions thereof regarding conflicts of
laws.
21.3 If any controversy or claim between the Partners arise out of
this Agreement, except as otherwise specifically provided in this Agreement:
(a) Such disagreement or dispute shall be discussed in
good faith during a ten-day period following the occurrence of such
dispute. If the dispute or disagreement cannot be resolved by the
parties after good faith discussion, it shall be submitted to binding
arbitration in Tucson, Arizona, under the Commercial Arbitration Rules
of the American Arbitration Association.
(b) Three arbitrators shall be appointed under the
Commercial Arbitration Rules of the American Arbitration Association.
As soon as the panel has been convened, a hearing date shall be set
within 45 days thereafter. Written submittals shall be presented and
exchanged by both parties 15 days before the hearing date, including
reports prepared by experts upon whom either party intends to rely.
At such time the parties shall also exchange copies of all documentary
evidence upon which they will rely at the arbitration hearing and a
list of the witnesses whom they intend to call to testify at the
hearing. Each party shall also make its respective experts available
for deposition
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by the other party prior to the hearing date. The arbitrators shall
make their award as promptly as practicable after conclusion of the
hearing.
(c) The arbitrators shall not be bound by the rules of
evidence or civil procedure, but rather may consider such writings and
oral presentations as reasonable businessmen would use in the conduct
of their day-to-day affairs, and may require the parties to submit
some or all of their presentation orally or in written form as the
arbitrators may deem appropriate. It is the intention of the parties
to limit live testimony and cross-examination to the extent necessary
to insure a fair hearing to the parties on the matters submitted to
arbitration, and to provide neither party more than five (5) complete
business days to present its position. The parties have included the
foregoing provisions limiting the scope and extent of the arbitration
with the intention of providing for prompt, economic and fair
resolution of any dispute submitted to arbitration.
(d) The arbitrators shall have the discretion to award
the costs of arbitration, arbitrators' fees and the respective
attorneys' fees of each party to the party who the arbitrators
determine, in their sole discretion, to have prevailed in the dispute.
Judgment upon the award entered by the arbitrators may be entered in
any court having jurisdiction thereof. The arbitrators shall make
their award in accordance with applicable law and based on the
evidence presented by the parties, and at the request of either party
at the start of the arbitration shall include in their award findings
of fact and conclusions of law both in law and equity which would be
available in a court having jurisdiction over the parties and over the
subject matter of the dispute. Such powers shall include, but not be
limited to, the power to require specific performance.
(e) The arbitration agreement set forth herein shall not
limit a court from granting a temporary restraining order or
preliminary injunction in order to preserve the status quo of the
parties pending arbitration. Further the arbitrator(s) shall have
power to enter such orders by way of interim award, and they shall be
enforceable in court.
21.3 Except as herein otherwise specifically provided, this
Agreement shall be binding upon and inure to the benefit of the parties and
their legal representatives, heirs, administrators, executors, successors and
assigns.
21.4 Wherever from the context it appears appropriate, each term
stated in either the singular or the plural shall include the singular and the
plural, and pronouns stated in either the masculine, the feminine or the neuter
gender shall include the masculine, feminine and neuter.
21.5 Captions contained in the Agreement are inserted only as a
matter of convenience and in no way define, limit or extend the scope or intent
of this Agreement or any provisions thereto.
21.6 If any provision of this Agreement, or the application of such
provision to any person or circumstance, shall be held invalid, the remainder
of this Agreement, or the
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application of such provision to persons or circumstances other than those to
which it is held invalid, shall not be affected hereby.
21.7 This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same instrument.
21.8 This Agreement may be translated from English to Japanese. In
the event any conflict or ambiguity exists as a result of, or in connection
with, such translation, the original English version shall govern.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
this 18th day of August, 1995.
WALBRO TUCSON CORP.
By:
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Its:
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IWAKI DIECAST USA, INC.
By:
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Its:
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SCHEDULE A
TO GENERAL PARTNERSHIP AGREEMENT
OF
TUCSON PRECISION PRODUCTS
CAPITAL PARTICIPATING
PARTNERS CONTRIBUTION PERCENTAGE
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Walbro Tucson Corp. $450,000 60%
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Iwaki Diecast U.S.A., Inc. $300,000 40%
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A-1