EXHIBIT 3.48
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
BETWEEN
BLACK BEAUTY RESOURCES, INC.
AND
THOROUGHBRED, L.L.C.
FOR
EAGLE COAL COMPANY
JANUARY 1, 1999
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT (this "Agreement") is
made and entered into as of the 1st day of January, 1999 by and between (i)
BLACK BEAUTY RESOURCES, INC., an Indiana corporation ("BBR") and (ii)
THOROUGHBRED, L.L.C., a Delaware limited liability company ("Thoroughbred") (BBR
and Thoroughbred are hereinafter collectively referred to as the "Partners" and
each individually as a "Partner"). For purposes of this Agreement, the term
"Partner" shall include any party then acting in such capacity in accordance
with the terms of this Agreement.
RECITALS:
A. BBR, Thoroughbred and The Pittsburg & Midway Coal Mining Co.
("P&M"; P&M, BBR and Thoroughbred are herein referred to collectively as the
"Original Partners") formed a partnership pursuant to the Indiana Uniform
Partnership Act (the "IUPA") known as "Eagle Coal Company" (the "Partnership")
pursuant to a Partnership Agreement dated July 25, 1996 (the "Original
Partnership Agreement").
B. BBR has acquired P&M's interest in the Partnership. Thoroughbred and
BBR now desire to set out in this Agreement the respective rights, duties and
liabilities of the Partners with respect to the Partnership following such
acquisition by BBR.
NOW, THEREFORE, in consideration of the Recitals and the mutual
covenants and undertakings set forth herein, BBR and Thoroughbred agree as
follows:
1
ARTICLE 1
FORMATION AND ADMISSION
1.1 CONTINUATION. The Partners do hereby continue the general
partnership formed pursuant to the IUPA pursuant to the Original Partnership
Agreement and known as Eagle Coal Company, for the purposes and term set out in
this Agreement.
1.2 NAME AND INSIGNIA. The Partnership shall do business under the
name "Eagle Coal Company" and, where appropriate, may describe itself as "A
Partnership of Black Beauty Resources, Inc. and Thoroughbred, LLC" ("Partnership
Description"). This name shall be registered in Indiana pursuant to applicable
Indiana law and in such other states as the Partnership may do business. The
Partners shall execute, and the Partnership shall file, such certificates of
assumed name as shall be required by law.
(a) BBR agrees that the name "Black Beauty" may be used
by the Partnership in connection with its business. The use of the name "Black
Beauty" and logo of BBR shall be limited to business documentation of the
Partnership, and, where appropriate, to its marketing publications and on or in
connection with the products or services to be sold or rendered by the
Partnership.
(b) Unless approved in writing by Thoroughbred, the
Partnership shall not be permitted at any time to use the logo or any other
emblem used by Thoroughbred or its Affiliates to identify it or its business,
assets or products or to use any other indicia which might be confused with any
such logo or other emblem or which might indicate a connection with Thoroughbred
or its Affiliates.
(c) If the Partnership is terminated either in accordance
with any of the provisions of Article 10 hereof or by the sale by a Partner of
its Partnership Interest to any person other than an Affiliate (as defined in
Section 11.2 hereof), the Partnership shall make no further
2
use of the privileges made available by such former Partner pursuant to this
Section 1.2 unless specifically authorized by such former Partner.
1.3 PRINCIPAL OFFICE. The principal office of the Partnership
shall initially be at 000 X. Xxxxx Xxx., Xxxxxxxxxx, Xxxxxxx. The principal
office may hereafter from time to time be moved to such other place as may be
designated by the Partnership Committee (which committee is described in Section
9.1 hereof). The books and records of the Partnership shall be maintained at the
Partnership's principal place of business.
1.4 TERM. The term of the Partnership shall continue until
December 31, 2100, unless sooner terminated as herein provided or pursuant to
law.
1.5 PROPERTY OWNERSHIP. All assets and property owned by the
Partnership, whether real or personal, tangible or intangible, shall be held in
the name of the Partnership unless otherwise determined by the Partnership
Committee.
ARTICLE 2
PURPOSE
The Partnership is formed to (i) enter into and perform under a
Contract Termination Agreement with Exxon Coal USA, Inc. ("Exxon") pursuant to
which Exxon will agree to terminate its rights under a Coal Sale and Purchase
Agreement between Exxon and PSI Energy, Inc. ("PSI"), (ii) enter into and
perform under a Coal Supply Agreement among the Partnership, PSI and Black
Beauty Coal Company and (iii) take any actions related to any of the foregoing,
including, without limitation, obtaining financing necessary to accomplish the
foregoing. The purposes of the Partnership shall not be extended, by implication
or otherwise, beyond the purposes set forth in this Article 2 without the
approval of the Partnership Committee.
3
ARTICLE 3
CAPITAL CONTRIBUTIONS
3.1 CAPITAL CONTRIBUTIONS.
(a) Contemporaneously with the execution of the Original
Partnership Agreement, the Original Partners contributed to the capital of the
Partnership the sum of $3,000.00 (the "Initial Capital Contributions").
(b) BBR owns a two-thirds (2/3) interest in the
Partnership and Thoroughbred owns a one-third (1/3) interest in the Partnership
and the terms of this Agreement (the "Ownership Interests") shall be construed
consistent with the stated Ownership Interests of the Partners.
3.2 DEBT; ADDITIONAL CAPITAL CONTRIBUTIONS.
(a) It is contemplated by the Partners that the
Partnership shall borrow from whatever source funds sufficient to support the
purposes set out in Article 2. As among the Partners, BBR shall be responsible
for two-thirds (2/3) of all Partnership indebtedness, and Thoroughbred shall be
responsible for one-third (1/3) of all Partnership indebtedness unless and to
the extent the Partners otherwise agree in writing. No Partner shall be
obligated by this Agreement to obtain financing on behalf of the Partnership,
should the Partnership be unable on its own to obtain such financing.
(b) No Partner shall be required to make additional
capital contributions to the Partnership. If any additional capital
contributions to the Partnership are approved by the Partnership Committee, such
contributions shall be in cash unless otherwise approved by the Partnership
Committee.
4
3.3 INTEREST ON CAPITAL CONTRIBUTIONS. No Partner shall be
entitled to interest on any capital contributions made to the Partnership.
3.4 WITHDRAWAL OF CAPITAL. No Partner shall be entitled to
withdraw any part of its capital contributions to the Partnership, or receive
any distributions from the Partnership, except as provided in this Agreement. No
Partner shall be entitled to demand or receive any property from the Partnership
other than cash, except as otherwise expressly provided for herein.
3.5 CAPITAL ACCOUNTS. There have been established on the books of
the Partnership a capital account ("Capital Account") for each Partner which has
been maintained in accordance with the Original Partnership Agreement. It is the
intention of the Partners that such Capital Account be maintained in accordance
with the provisions of Treas. Reg. Section 1.704-l (b)(2)(iv), and this
Agreement shall be so construed. Accordingly, such Capital Account shall
initially be credited with the initial capital contribution of the Partner, and
shall thereafter be increased by (i) any cash or the fair market value of any
property contributed by such Partner (net of any liabilities assumed by the
Partnership or to which the contributed property is subject), and (ii) the
amount of all net income (whether or not exempt from tax) allocated to such
Partner hereunder, and decreased by (i) the amount of all net losses allocated
to such Partner hereunder (including expenditures described in section
705(a)(2)(B) of the Internal Revenue Code of 1986, as amended ("Code"), or
treated as such an expenditure by reason of Treas. Reg. Section 1.704-1
(b)(2)(iv)(i)), and (ii) the amount of cash, and the fair market value of
property (net of any liabilities assumed by such Partner or to which the
distributed property is subject) distributed to such Partner. If a Partner
transfers all or any portion of such Partner's interest in the Partnership in
accordance with the terms of this Agreement, the Capital Account of the
transferor shall become the Capital Account of the transferee to the extent of
the Partnership interest transferred. BBR has succeeded to the Capital Account
of P&M.
5
ARTICLE 4
ACCOUNTING
4.1 BOOKS AND RECORDS. The Partnership Committee shall cause the
Partnership to maintain full and accurate books and records at the Partnership's
principal place of business, showing all receipts and expenditures, assets and
liabilities, net income or loss, and all other records necessary for recording
the Partnership's business and affairs, including those sufficient to record the
allocations and distributions to the Partners provided for in this Agreement.
Such books and records shall be maintained in accordance with generally accepted
accounting principles; provided that, adequate records concerning tax
allocations shall be simultaneously maintained by the Partnership. Such books
and records shall be open to the inspection and examination of each Partner by
its duly authorized representatives at all reasonable times.
4.2 FISCAL YEAR. The fiscal year of the Partnership shall be the
calendar year ("Fiscal Year").
4.3 REPORTS.
(a) Within 90 days after the close of each Fiscal Year of
the Partnership, the Partnership shall furnish to each Partner a report of the
business and operations of the Partnership during such Fiscal Year. Unless
otherwise agreed to by the Partnership Committee, such report shall contain
financial statements prepared by the Partnership which are audited by the
certified public accountants employed by the Partnership. Any financial
statement submitted pursuant to this Section 4.3(a) shall be deemed correct,
binding and conclusive upon the Partners unless objection thereto is made by a
Partner within 45 days after the statement is received by such Partner.
(c) Within 10 business days after the close of each
calendar month, the Partnership shall furnish to each Partner a report of the
business and operations of the Partnership
6
for such calendar month. Unless otherwise agreed to by the Partnership
Committee, such report shall contain unaudited financial statements prepared by
the Partnership, be in such form as the Partnership Committee may require and
shall include a balance sheet as of the end of such calendar month, a statement
of the net income or net loss of the Partnership for such calendar month and
such other information as in the judgment of the Partnership Committee shall be
reasonably necessary for the Partners to be advised of the results of the
Partnership's operations and its financial condition.
(c) Each Fiscal Year the Partnership Committee shall
establish the date by which the Chief Executive Officer shall submit to the
Partnership Committee an annual budget and a business plan for the next
succeeding Fiscal Year of the Partnership as well as longer term business plans
for the Partnership which are requested by the Partners. The date for submission
established by the Partnership Committee shall accommodate the budgeting process
of all Partners; provided that, the Partnership shall have at least 60 days
advance notice from the Partners of the date for submission of the budget and
business plans. All budgets and business plans required to be submitted by the
Chief Executive Officer to the Partnership Committee pursuant to this Section
4.3(c) shall be approved, or modified and then approved, by the Partnership
Committee, and the Chief Executive Officer shall thereafter conduct the business
of the Partnership in accordance with the annual budget, business plan and
delegation of authority approved by the Partnership Committee, unless otherwise
directed by the Partnership Committee. Any Partner may designate in the budget
capital projects which must be specifically approved by the Partnership
Committee prior to the commencement of expenditures for such project.
4.4 TAX RETURNS. The Partnership Committee shall cause all
required federal, state and local partnership income, franchise, property and
other tax returns, including information returns, to be filed with the
appropriate office of the relevant taxing jurisdiction or agency. In order to
accommodate the following provision regarding review of drafts of the Federal
and state income tax returns of the Partnership, the Partnership shall seek each
year a three month extension of the date on which such returns must be filed.
With respect to the Federal and state
7
income tax returns of the Partnership, the Partnership shall submit to each
Partner, or, with the consent of each Partner, make available for review, drafts
of the proposed returns, including the related work papers, books, records and
any other documents used in the preparation of such returns, as soon as
possible, but by no later than April 30 of each year, to permit review and
approval of such returns by each Partner prior to filing. All expenses incurred
in connection with such tax returns and information returns, as well as for the
reports referred to in Section 4.3 hereof, shall be expenses of the Partnership.
4.5 PARTNER'S REQUEST FOR ADDITIONAL INFORMATION. The Chief
Executive Officer shall also furnish to any Partner such other reports of the
Partnership's operations and conditions as may reasonably be requested by any of
the Partners.
4.6 TAX MATTERS PARTNER. BBR shall be the Tax Matters Partner for
the Partnership as defined in Section 6231 (a) of the Internal Revenue Code of
1986, as amended (the "Code"). The Tax Matters Partner shall not take any action
in such capacity without first notifying, and receiving the concurrence of, the
other Partner.
ARTICLE 5
BANK ACCOUNTS AND EXCESS FUNDS
5.1 BANK ACCOUNTS. All funds of the Partnership shall be deposited
in its name into such checking or savings accounts, time certificates or
short-term money market funds as shall be designated by the Partnership
Committee. Withdrawals therefrom shall be made upon such signature or signatures
(or other authorization form) as determined by the Partnership Committee.
5.2 INVESTMENT OF EXCESS FUNDS. The Partnership may invest excess
funds not required in the Partnership's business, and not required to be
distributed pursuant to the terms of
8
this Agreement, in short-term United States Government obligations maturing
within 1 year or in other securities approved by the Partnership Committee.
ARTICLE 6
ALLOCATION OF NET INCOME AND LOSS
6.1 NET INCOME AND NET LOSS.
(a) The net income and net loss of the Partnership for
each Fiscal Year shall be allocated 1/3 to Thoroughbred and 2/3 to BBR.
(b) For Federal, state and local income tax purposes
only, depreciation (cost recovery) and cost depletion deductions to which the
Partnership is entitled with respect to the assets of the Partnership and gains
and losses from sales or other dispositions of assets of the Partnership shall
be determined based upon the provisions of section 704(c) of the Code with
respect to that portion of assets which was contributed by a Partner. All such
allocations shall be made in accordance with the "traditional method" (within
the meaning of Treas. Reg. Section 1.704-3(b)
(c) For Federal, state and local income tax purposes
only, percentage depletion shall be allocated pursuant to Section 6.1 (a)
hereof.
6.2 ALLOCATION OF EXCESS NONRECOURSE LIABILITIES. For purposes of
section 752 of the Code and the regulations thereunder, the excess nonrecourse
liabilities of the Partnership, within the meaning of Treas. Reg Section 1.
752-3 (a)(3), if any, shall be allocated proportionately to each Partner.
6.3 ALLOCATIONS IN EVENT OF TRANSFER. In the event of the transfer
of a Partner's interest (in accordance with and subject to the provisions of
this Agreement) in the Partnership at any time other than at the end of a Fiscal
Year, or the admission of a new Partner at any time
9
other than the end of a Fiscal Year, the periods before and after such transfer
or admission shall be treated as separate fiscal years, and the Partnership's
net income, net loss and credits for each of such deemed separate fiscal years
shall be allocated in accordance with the Partners' respective percentage
interests in the Partnership for each of such deemed separate fiscal years.
ARTICLE 7
DISTRIBUTIVE SHARES AND FEDERAL INCOME TAX ELECTION
7.1 DISTRIBUTIVE SHARES. For purposes of Subchapter K of the Code,
the distributive shares of the Partners of each item of Partnership taxable
income, gains, losses, deductions or credits for any Fiscal Year shall be in the
same proportions as their respective shares of the net income or loss of the
Partnership allocated to them pursuant to Section 6.1 hereof. Notwithstanding
the foregoing, to the extent not inconsistent with the allocation of gain
provided for in Sections 6.1(a) and 6.1(b) hereof, gain recognized by the
Partnership which represents ordinary income by reason of recapture of
depreciation, cost recovery or depletion deductions for Federal income tax
purposes shall be allocated to the Partner to whom such depreciation, cost
recovery or depletion deduction to which such recapture relates was allocated.
7.2 ELECTIONS. Any and all elections required or permitted to be
made by the Partnership under the Code, including the election provided for in
section 754 of the Code, shall be made in accordance with the decisions of the
Partnership Committee.
7.3 PARTNERSHIP TREATMENT. The Partnership shall be treated as a
partnership for purposes of Federal, state and local income tax and other taxes,
and the Partners shall not take any position or make any election, in a tax
return or otherwise, inconsistent with such treatment.
10
ARTICLE 8
DISTRIBUTIONS
8.1 NET CASH FLOW. For purposes of this Agreement, the term "Net
Cash Flow" for any period shall mean the excess, if any, of (a) the sum of (i)
the gross receipts (excluding loan proceeds) of the Partnership for such period
plus (ii) any funds released by the Partnership Committee from previously
established reserves referred to in (b)(v) of this Section 8.1 over (b) the sum
of (i) all cash operating expenses paid by the Partnership for such period,
including, but not by way of limitation, salaries, taxes, interest, insurance
premiums, royalties, rentals, utilities and fees, (ii) all cash capital
expenditures paid for such period for maintenance or replacement of existing
Partnership operations, (iii) all amounts paid by the Partnership in such period
on account of amortization of the principal of any debts or liabilities of the
Partnership and (iv) reasonable reserves to maintain Partnership finances in
compliance with financing covenants, as shall be determined from time to time by
the Partnership Committee. Notwithstanding the foregoing, to the extent that any
of the payments described in (b)(i), (ii) or (iii) above are paid from capital
contributions, from loan proceeds or from previously established reserves, such
payments shall not be taken into account in determining Net Cash Flow for such
period.
8.2 DISTRIBUTION OF NET CASH FLOW. The Net Cash Flow for all
Fiscal Years shall be distributed at such time or times as shall be determined
by the Partnership Committee; provided that, unless otherwise agreed to by all
Partners, the Net Cash Flow for each Fiscal Year, to the extent not previously
distributed, shall be distributed within 90 days following the close of each
Fiscal Year. It is the intention of the Partners that the Net Cash Flow be
distributed quarterly if the Partnership Committee deems such quarterly
distribution prudent. All such distributions of Net Cash Flow shall be
distributed 2/3 to BBR and 1/3 to Thoroughbred.
8.3 PROPERTY DISTRIBUTIONS. If any property of the Partnership,
other than cash, is distributed by the Partnership to a Partner (in connection
with the liquidation of the Partnership or otherwise), then the fair market
value of such property shall be used for purposes of
11
determining the amount of such distribution. The fair market value of the
property distributed shall be agreed to by the Partners; provided that, if the
Partners cannot so agree, the issue shall be submitted to arbitration as
provided in Article 15 hereof.
ARTICLE 9
PARTNERSHIP MANAGEMENT
9.1 PARTNERSHIP COMMITTEE.
(a) The Partnership shall be managed by a committee (the
"Partnership Committee") comprised of representatives of the Partners. The
Partnership Committee shall have authority over all Partnership actions,
including, but not limited to, the "Major Decisions" set forth on Exhibit "9.1"
to this Agreement.
(b) The regular members of the Partnership Committee
shall consist of three representatives (herein "Representatives") of each
Partner. Each Partner shall designate in writing to the other Partners such
Partner's Representatives, and each Partner agrees to fill any vacancies within
15 days. Representatives may also be employees of the Partnership. By written
notice, each Partner may designate up to three alternate Representatives to act
in the absence of its regular Representatives. The Representatives shall serve
for indefinite terms at the pleasure of the appointing Partner and may be
removed by such Partner at any time and for any reason. Notwithstanding that
each Partner appoints three Representatives to the Partnership Committee, with
regard to any action or decision by the Partnership Committee, the
Representatives appointed by each Partner shall cast in the aggregate only one
vote with respect to all such actions or decisions. Any action taken by the
Partnership (through its officers or employees, including the Chief Executive
Officer) in compliance with the direction or decision of the Partnership
Committee shall be binding upon the Partnership and each Partner.
12
(c) All Partnership Committee actions shall require the
approval of all Partners acting through their appointed Representatives. An
action of the Partnership Committee shall be by a resolution adopted at a
Partnership Committee meeting or, without a meeting, by a written consent signed
by at least one Representative of each Partner. The Secretary of the Partnership
Committee and any Assistant Secretary may execute certificates setting forth
actions taken by the Partnership Committee or which reflect delegation of
authority by the Partnership Committee to employees of the Partnership.
(d) Meetings of the Partnership Committee shall be held
at least quarterly. Meetings of the Partnership Committee shall also be held
upon call by any member of the Partnership Committee. Unless waived by at least
one Representative of each Partner, the calling of a meeting of the Partnership
Committee shall require a minimum of three (3) days' notice. At least one
Representative of each Partner must be present to constitute a quorum and
convene a meeting of the Partnership Committee. Each Partner may invite to the
meetings of the Partnership Committee such attorneys and advisors as such
Partner deems appropriate. Meetings of the Partnership Committee may, if at
least one Representative of each Partner consents, be held by telephone
conferences in which each participating Representative can hear all other
participating Representatives, or in such other manner as shall be agreed to by
the Representatives. Unless otherwise agreed by at least one Representative of
each Partner, all meetings shall be held at the principal office of the
Partnership.
(e) The Partnership Committee is authorized to adopt
rules concerning the conduct of the affairs of the Partnership Committee and the
Partnership.
(f) The chair of the Partnership Committee (who shall be
a Representative of one of the Partners) shall rotate among the Partners, with
the same person acting as chair of the "Partnership Committee" of Black Beauty
Coal Company acting as chair of the Partnership Committee under this Agreement.
The Partnership Committee shall appoint a Secretary and one or more Assistant
Secretaries to keep complete minutes of the proceedings and decisions of the
13
Partnership Committee and take such other actions as may be authorized under
this Agreement or by the Partnership Committee.
(g) No Partner shall have any right, power or obligation
to exercise any control over the hiring of miners or over the work force of the
Partnership, including, but not limited to, any employment benefits or other
terms and conditions of employment for the employees of the Partnership, and all
such matters are delegated to the management employees of the Partnership.
Thoroughbred and BBR shall take no part in, and shall have no right, power or
obligation with respect to, any matter relating to the hiring of employees of
the Partnership.
9.2 CHIEF EXECUTIVE OFFICER.
(a) The Partnership Committee shall select an individual
to be the Chief Executive Officer for the Partnership (the "Chief Executive
Officer"). The initial Chief Executive Officer shall be Xxxxxx X. Xxxxxxxxxx.
Upon the Chief Executive Officer's ceasing to so act for any reason, a
replacement Chief Executive Officer shall be elected by the Partnership
Committee.
(b) Within the scope of authority delegated by the
Partnership Committee to the Chief Executive Officer, day to day control and
management of the business of the Partnership shall be vested in the Chief
Executive Officer; provided that, the Chief Executive Officer shall be subject
to control and direction at all times by the Partnership Committee. The Chief
Executive Officer may not take any action on behalf of the Partnership if
authority for such action is not delegated (either specifically or generally) to
the Chief Executive Officer by the Partnership Committee.
(c) The Chief Executive Officer may be removed upon the
decision of the Partnership Committee to remove the Chief Executive Officer,
subject to any employment contract between the Partnership and the Chief
Executive Officer. Further, unless otherwise
14
agreed to by the Partnership Committee, the term of office of the Chief
Executive Officer shall be at the pleasure of the Partnership Committee, except
that the term of office of the initial Chief Executive Officer shall extend
until the expiration date of the term of office of the Chief Executive Officer
of Black Beauty Coal Company, on which date the term of office of the current
Chief Executive Officer shall automatically terminate. Any extension or renewal
of the term of office of any Chief Executive Officer shall require the approval
of the Partnership Committee. The decision of the Partnership Committee not to
renew or not to extend the term of any Chief Executive Officer shall not alter
the Partnership's obligations under any employment contract approved by the
Partnership Committee. The Chief Executive Officer may delegate responsibility
and grant authority to other employees of the Partnership, subject to the
limitations on the authority of the Chief Executive Officer set put herein and
actions or directives from the Partnership Committee.
9.3 SERVICE AGREEMENTS; COMPENSATION. To the extent and for the
period that it is not practicable or economic to include in the staff of the
Partnership personnel capable of providing certain management and staff services
required by the Partnership, the Partnership, through the Partnership Committee,
may enter into appropriate service agreements with BBR and/or Thoroughbred for
such services. The Partnership Committee shall establish policies as to the use
of BBR's and Thoroughbred's services. Further, the Partnership, through the
Partnership Committee, may contract with any Partner for the temporary
assignment of one or more employees of any Partner to the Partnership. Such
loaned employees shall work for the Partnership for the period of the temporary
assignment by the Partner, but shall remain employees of the assigning Partner
and shall be paid by the assigning Partner, although the Partnership shall
reimburse to the assigning Partner the cost of such employee. Except with regard
to service agreements and loaned employees described above, no Partner shall be
entitled to compensation for services rendered to the Partnership.
Representatives on the Partnership Committee shall receive no compensation for
acting as Representatives on the Partnership Committee. The Partnership may, on
terms approved by the Partnership Committee, enter into
15
employment agreements with the Chief Executive Officer and other senior
management of the Partnership.
9.4 RELATED PARTY TRANSACTIONS. The fact that one of the Partners
is directly or indirectly interested in, or connected with, any person, firm or
corporation employed by the Partnership to render or perform a service, or to or
from whom the Partnership may purchase, sell or lease property, shall not
prohibit the Chief Executive Officer from causing the Partnership to employ such
person, firm or corporation, or from otherwise dealing with him or it, provided
(i) it is on terms no less advantageous to the Partnership than are available
from an unrelated third party and (ii) the Chief Executive Officer has received
approval of each such transaction in advance from the Partnership Committee if
the proposed transaction is material and is other than in the ordinary course of
business.
9.5 ACTS BY PARTNERS. No Partner shall take, or commit the
Partnership to take, any action, either in its own name in respect of the
Partnership or in the name of the Partnership, unless the Partnership Committee
has approved the same.
ARTICLE 10
DISSOLUTION AND LIQUIDATION
10.1 CONTINUANCE. The Partnership shall continue until its
expiration as provided in Section 1.4 hereof, or until it is earlier dissolved
by law or by the mutual consent of the Partners in writing or in accordance with
the provisions of this Article 10.
10.2 EVENTS CAUSING DISSOLUTION. The Partnership shall, as provided
below, dissolve upon, but not before, the first to occur of the following:
16
(a) Proceedings are commenced by or against either of the
Partners for any relief under any bankruptcy or insolvency law, or any law
relating to the relief of debtors, readjustment of indebtedness, reorganization,
arrangement or extension and such proceedings have not been dismissed, nullified
or otherwise rendered ineffective within 60 days after such proceedings have
commenced; or
(b) A decree or order of a court having jurisdiction in
the premises for the appointment of a receiver, liquidator, trustee or assignee
in bankruptcy or insolvency of any of the Partners, or of a substantial part of
its property, or for the winding-up or liquidation of its affairs, has been
entered, and such decree or order has remained in force undischarged for a
period of 60 days; or
(c) Any Partner shall make a general assignment for the
benefit of creditors; or
(d) The sale, condemnation, taking by eminent domain or
other disposition of all or substantially all of the assets of the Partnership
and the sale and/or collection of any evidence of indebtedness received in
connection therewith; or
(e) The conclusion of the term of the Partnership under
Section 1.4 hereof; or
(f) The withdrawal by a Partner from the Partnership
without the written consent of the other Partners; or
(g) The breach by a Partner of any of the covenants
contained herein, and, if such breach is remediable, such Partner fails to
remedy the breach within 45 days after written notice from either of the other
Partners to remedy such breach or, in the case of a dispute as to
17
the existence or occurrence of such breach, within 45 days after a final
determination (through arbitration or allowed judicial proceedings) that there
has been a breach; or
(h) The transfer (directly, indirectly or by operation of
law) of greater than a 50% equity interest in a Partner, except as specifically
allowed under Section 11.2 hereof; or
(i) The dissolution of Black Beauty Coal Company.
10.3 ELECTION FOLLOWING EVENT CAUSING DISSOLUTION. Unless required
by applicable law, the occurrence of any event under Section 10.2 hereof, other
than under Sections 10.2(d) and 10.2(e) hereof, shall not require the winding up
of the Partnership if the Partners not initiating or causing the event to occur
(the "Electing Partners") make the election provided for in Section 10.4 hereof.
Such election to pursue an alternative to winding up of the Partnership must be
made by the Electing Partners within 60 days of the Electing Partners' becoming
actually aware of the occurrence of the event causing dissolution. If (i) such
election is not made by written notice to the other Partner within the time
required, (ii) the event under Section 10.2(d) hereof occurs, or (iii) the event
under Section 10.2(e) hereof occurs, then the provisions of Section 10.5 hereof
regarding liquidation and winding up of the affairs of the Partnership shall
govern.
10.4 ALTERNATIVE TO LIQUIDATION. To avoid the winding up of the
Partnership as provided in Section 10.3 hereof, the Electing Partners, if
allowed by applicable law, may elect (for events other than events under Section
10.2(d) or 10.2(e) hereof) to have the Partnership continue as if such event had
not occurred; provided that, any waiver shall not be deemed to require such a
waiver in regard to any future or other event. In addition, any Partner may at
any time invoke the Buy-Sell provisions of Article 16 of this Agreement.
18
10.5 LIQUIDATION AND WINDING UP UPON DISSOLUTION. If the
Partnership is dissolved and if the Electing Partners do not make the election
provided for in Section 10.4 hereof, the Partnership shall be wound up and
liquidated in accordance with the requirements of law and the following
provisions:
(a) The right to wind up the Partnership's affairs and to
supervise its liquidation shall be exercised jointly by all Partners (the
"Liquidators").
(b) Upon dissolution, the Liquidators shall ensure that
an account is taken as soon as practicable of all property, assets and
liabilities of the Partnership.
(c) Each Partner shall pay to the Partnership all amounts
owed by it to the Partnership, together with such Partner's share of
contributions required by law and this Agreement to be made by the Partners for
the payment of liabilities.
(d) The assets and property of the Partnership or the
proceeds of any sale thereof, together with contributions received pursuant to
Section 10.5(c) hereof, shall be applied by the Liquidators in accordance with
Section 10.6 hereof.
10.6 DISTRIBUTIONS UPON DISSOLUTION. Upon the dissolution of the
Partnership, the properties of the Partnership to be sold shall be liquidated in
an orderly fashion, and the proceeds thereof and any other property remaining
shall be distributed in kind as soon as practical, as follows:
First: To the payment and discharge of all of the
Partnership's debts and liabilities (other than to
the Partners), to the necessary expenses of
liquidation, to a cash reserve for the completion of
the reclamation obligations of the Partnership and to
the establishment of a cash reserve which the
Partnership Committee
19
determines to create for unmatured and/or contingent
liabilities and obligations of the Partnership.
Second: To the payment and discharge of all of the
Partnership's debts and liabilities to Partners,
pro-rata in accordance with their respective unpaid
principal balances.
Third: To the Partners, pro rata in accordance with their
respective Capital Accounts on the date of
distribution (after adjustment for all items of
income and expense through that date).
If, upon the liquidation of the Partnership, or upon the liquidation of the
partnership interest of a Partner (in each case determined as provided in Treas.
Reg. Section 1.704-l(b)(2)(ii)(g)), after crediting all income upon sale of the
Partnership's assets which have been sold, and after making all allocations
provided for herein, a Partner (the Partner whose partnership interest has been
liquidated, if applicable) has a negative Capital Account, such Partner shall be
obligated to contribute to the Partnership at or before the later to occur of
(i) the close of the Partnership's taxable year, or (ii) 90 days following such
liquidation, an amount equal to such negative Capital Account for distribution
in accordance with the terms of this Agreement.
ARTICLE 11
ASSIGNMENT AND TRANSFERS TO AFFILIATES
11.1 ASSIGNMENT OF PARTNER'S INTEREST. Except as provided in this
Agreement, a Partner may not withdraw, nor sell, assign, transfer, pledge, grant
a security interest in, encumber or otherwise dispose of, all or any part of its
interest in the Partnership. Any Partner may grant a security interest in its
right to receive distributions from the Partnership in connection with a
financing by such Partner. Any attempted withdrawal or transfer not permitted by
the terms of this Agreement shall be null and void ab initio and is of no force
and effect.
20
11.2 TRANSFER TO AFFILIATES. With the prior written consent of the
other Partners, a Partner ("Transferring Partner") may sell, assign, transfer or
dispose of all, or a portion, of its interest in the Partnership to any of its
Affiliates as defined below; provided that, the other Partners
("Non-Transferring Partners") shall not unreasonably withhold consent thereto if
the Transferring Partner: (i) enters into a guarantee of the liabilities and
obligations of its Affiliate; (ii) indemnifies and holds harmless the
Non-Transferring Partners, in form and substance satisfactory to the
Non-Transferring Partners, against all costs and obligations of any nature
whatsoever, including, without limitation, obligations under the Code and the
Employee Retirement Income Security Act of 1974, as amended from time to time,
such that the Non-Transferring Partners shall be in the same position as it
would have been in if no such transfer had occurred, and (iii) satisfies the
Non-Transferring Partners that such transfer will not result in a termination of
the Partnership for Federal income tax purposes under Section 708(b) of the
Code. Any Affiliate to which such right, title and interest shall be sold,
assigned, transferred or disposed of shall execute a copy of this Agreement and
such other documents as are necessary to assume all the duties, liabilities and
obligations of the Transferring Partner concerning the Partnership. Thereupon,
the Affiliate shall be a Partner in succession to the Transferring Partner, and
the Transferring Partner shall cease to have any right, title or interest in, or
duties, liabilities or obligations in respect of, the Partnership to the extent
of any such transfer, except as provided above in this Section 11.2 or which may
arise by operation of law. For purposes of this Agreement, the term "Affiliate"
shall mean any individual, corporation, partnership or other entity which,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, another individual, corporation,
partnership or other entity. For purposes of this Agreement the interest of any
Affiliate assignee(s) of a Partner shall be aggregated with such Partner and the
original named Partner and all Affiliate assignees of such Partner shall be
treated as a single Partner.
21
ARTICLE 12
RELATIONSHIP WITH PARTNERSHIP
12.1 INFORMATION. Subject to any applicable restriction of law, all
Partners shall be fully and currently informed of the activities of the
Partnership. To the extent that there are any applicable laws or regulations
which would have the effect of limiting the right of a Partner to be so
informed, the other Partners shall use all reasonable efforts to obtain waivers
thereof in favor of the Partnership and the Partner so limited and, failing the
obtaining of such waivers, the Partners shall make such arrangements as shall be
practicable to preserve to the Partnership the benefits of the contracts or
projects to which any secrecy agreements or laws or regulations relate. Each
Partner shall not, except as required by law and except for disclosure to its
attorneys, accountants, and Affiliates (who shall be bound by the
confidentiality provisions of this Agreement), divulge to any person any
confidential or proprietary information concerning the business of the
Partnership.
12.2 GOOD FAITH OF PARTNERS AND AFFILIATES. Each of the Partners
shall act in good faith with respect to the Partnership in any matter which
involves the interests of any of its Affiliates. Without derogating from the
obligations of a Partner and its Affiliates to the Partnership and the other
Partners, a Partner shall not subordinate the interests of the Partnership to
the separate interests of itself or its Affiliates.
ARTICLE 13
SCOPE OF PARTNERSHIP
13.1 NATURE OF OBLIGATIONS AMONG PARTNERS. Except as otherwise
provided in this Agreement, a Partner shall not act for, or assume any
obligation or responsibility on behalf of, any other Partner or the Partnership.
Each Partner hereby acknowledges, as among the Partners and the Partnership, a
personal responsibility for its percentage share of the liabilities and
22
obligations of the Partnership incurred in accordance with the terms of this
Agreement, except as otherwise expressly provided in this Agreement. In
furtherance of the foregoing, if a Partner, pursuant to a final judgment of a
court of applicable jurisdiction, pays any amount on behalf or for the account
of the Partnership with respect to (i) any liability, obligation, undertaking,
damage or claim for which the Partnership shall or may, pursuant to this
Agreement or other contract or applicable law, be liable or responsible, or (ii)
making good any loss or damage sustained by, or paying any duty, cost, claim or
damage incurred by, the Partnership (such items referenced in clauses (i) and
(ii) above called "Liabilities"), then the Partnership shall reimburse such
Partner for the amount so paid by that Partner. If the Partnership fails fully
to reimburse the paying Partner, each of the other Partners (a "Reimbursing
Partner") shall indemnify the paying Partner by paying to it an amount necessary
to cause the Reimbursing Partner to have incurred one-third of the excess of (x)
the aggregate payments by the paying Partner as to such Liabilities over (y) the
aggregate reimbursement, if any, which the paying Partner has received from the
Partnership as to such payments. For purposes of this Article 13, all
Liabilities arising as a result of the insufficiency of any reserve established
in connection with the dissolution of the Partnership shall in each case be
deemed to be Liabilities of the Partnership.
13.2 INDEMNIFICATION.
(a) The Partnership shall indemnify, defend and hold
harmless each Partner and its employees, officers, directors and agents (the
"Other Indemnified Persons") from and against all loss, cost, liability and
expense which may be imposed upon or reasonably incurred by such Partner or
Other Indemnified Persons, including reasonable attorneys' fees and
disbursements and reasonable settlement payments, in connection with any claim,
action, suit or proceeding or threat thereof, made or instituted in which such
Partner or Other Indemnified Persons may be involved or be made a party by
reason of such Partner's being a Partner, or by reason of any action alleged to
have been taken or omitted by such Partner in such capacity, or by such Other
Indemnified Persons acting on behalf of such Partner or the Partnership, if such
Partner or Other Indemnified Person was acting in good faith and with reasonable
care in what it
23
reasonably believed to be its scope of authority set forth in this Agreement and
in the best interests of the Partnership.
(b) Nothing in this Section 13.2 shall be construed to
require the Partnership to reimburse, defend, indemnify or hold harmless any
Partner or Other Indemnified Persons with respect to any loss, cost, liability
or expense in any circumstance in which this Agreement requires a Partner to
reimburse, defend, indemnify or hold harmless any other Partner or the
Partnership.
(c) Each Partner shall indemnify and hold harmless the
Partnership and each other Partner, and the Other Indemnified Persons, from and
against all loss, cost, liability and expense which may be imposed upon or
reasonably incurred by the Partnership, such other Partner, or Other Indemnified
Persons, including reasonable attorneys' fees and disbursements and reasonable
settlement payments, in connection with any claim, action, suit or proceeding or
threat thereof arising out of any breach by such indemnifying Partner of its
obligations and agreements under this Agreement.
(d) Promptly after receipt by a person or entity
indemnified under any provision of this Agreement (the "Indemnified Party") of
notice of the commencement of any action against the Indemnified Party, such
Indemnified Party shall give notice to the person or persons or entity or
entities obligated to indemnify the Indemnified Party pursuant to the provisions
of this Agreement (the "Indemnifying Party"). The Indemnifying Party shall be
entitled to participate in the defense of the action and, to the extent that it
may elect in its discretion by written notice to the Indemnified Party, to
assume control of the defense and/or settlement of such action; provided,
however, that (i) both the Indemnifying Party and the Indemnified Party must
consent and agree to any settlement of any such action, except that it the
Indemnifying Party has reached a bona fide settlement agreement with the
plaintiff(s) in any such action and the Indemnified Party does not consent to
such settlement agreement, such settlement agreement shall act as an absolute
maximum limit on the indemnification obligation of the
24
Indemnifying Party, and (ii) if the defendants in any such action include both
the Indemnifying Party and the Indemnified Party and if the Indemnified Party
shall have reasonably concluded that there are legal defenses available to it
which are in conflict with those available to the Indemnifying Party, then the
Indemnified Party shall have the right to select separate counsel to assert such
legal defenses and otherwise to participate in the defense of such action on its
own behalf, and the fees and disbursements of such separate counsel shall be
included in the amount which the Indemnified Party is entitled to recover under
the terms and subject to the conditions of this Agreement.
ARTICLE 14
GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Indiana. The Partners agree that if any
litigation occurs between the Partners regarding the Partnership, such action
shall be maintained only in the United States District Court for the Southern
District of Indiana, subject to applicable jurisdictional limitations. If due to
jurisdictional limitations, such action cannot be brought in the Southern
District of Indiana, such action may be maintained in any other Federal district
court in Indiana, or in an appropriate state court in Indiana.
ARTICLE 15
ARBITRATION
Any claim or dispute between the Partners which arises out of or
relates to this Agreement shall be arbitrable; provided that no matter requiring
the approval of the Partnership Committee shall be arbitrable. Further, any
Partner may bring an action in law or in equity for an injunction against a
violation of this Agreement pending resolution of the dispute by arbitration.
All such arbitrable matters shall be governed solely by Exhibit "15" hereto. The
pendency of any arbitration proceeding shall stay any right of a Partner to take
any action in regard to the other
25
Partners which is based upon a claim involved in the matter being arbitrated,
but such stay shall not affect the obligations of the parties hereunder to
continue with performance of this Agreement except to the extent of the matter
being arbitrated.
ARTICLE 16
BUY-SELL PROVISIONS
16.1 GENERAL BUY-SELL. If, under Section 16.1 of the Third Amended
and Restated Partnership Agreement of Black Beauty Coal Company dated January,
1999, as amended, (the "Coal Company Buy-Sell Provisions"), the ("Non-Initiating
Partners") elect to purchase the interest of the "Initiating Partner", as those
terms are defined in the Coal Company Buy-Sell Provisions, the Non-Initiating
Partners (herein the "Purchasing Partners") shall have the right and obligation
to purchase all right, title and interest of the Initiating Partner (herein the
"Selling Partner") in the Partnership. The closing of such purchase shall occur
contemporaneously with the closing under the Coal Company Buy-Sell Provisions.
The Purchasing Partners shall at the closing pay to the Selling Partner an
amount equal to the Selling Partner's capital account as determined under this
Agreement and shall indemnify the Selling Partner and any guarantor of the
Selling Partner's obligations from and against all liability and obligations
which the Selling Partner and any guarantor of the Selling Partner's obligations
may have under any Guaranty Agreements which the Selling Partner and any
guarantor of the Selling Partner's obligations shall have executed in support of
then outstanding indebtedness or obligations of the Partnership. If, under
Section 16.3 of the Third Amended and Restated Partnership Agreement of Black
Beauty Coal Company referenced above, as amended, (the "Thoroughbred Purchase
Provisions"), Thoroughbred is obligated to purchase the interest of BBR,
Thoroughbred shall have the obligation to purchase all right, title and interest
of BBR in the Partnership. The closing of such purchase shall occur
contemporaneously with the closing under the Thoroughbred Purchase Provisions.
Thoroughbred shall at the closing pay to BBR an amount equal to the BBR's
capital account as determined under this Agreement and shall indemnify the BBR
from and against all
26
liability and obligations which BBR may have under any Guaranty Agreements which
BBR shall have executed in support of then outstanding indebtedness or
obligations of the Partnership.
ARTICLE 17
NOTICES
17.1 ADDRESSES. All notices, consents, elections, requests,
reports, demands and other communications hereunder shall be in writing and
shall be personally delivered or mailed by registered or certified, first-class
mail, postage prepaid, or sent by attested facsimile transmission or by a
reputable overnight courier service such as Federal Express.
to BBR:
Black Beauty Resources, Inc.
000 Xxxxx Xxxxx Xxx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chairman
to Thoroughbred:
Thoroughbred, L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000-0000
or to such other address or to such other person as a Partner shall have last
designated by notice to the other Partner.
17.2 EFFECTIVE DATE. All notices, consents, elections, requests,
reports and other documents authorized or required to be given pursuant to this
Agreement shall be effective as of the date received by the recipient or
addressee for purposes of calculating the time within which the other Partner is
obligated to respond. If a Partner refuses to accept delivery of any notice sent
in accordance with Section 17.1 hereof, such Partner shall nevertheless be
deemed to have received such notice for purposes of this Section 17.2 on the
date such refusal first occurred.
27
ARTICLE 18
MISCELLANEOUS
18.1 BINDING ON SUCCESSORS. Except as otherwise provided in this
Agreement, this Agreement shall be binding upon and inure to the benefit of the
Partners and their successors and assigns.
18.2 AMENDMENTS. This Agreement shall not be amended or modified
except by a written instrument executed by all Partners.
18.3 WAIVER AND CONSENT. No consent or waiver, express or implied,
by a Partner to or of any breach or default by the other Partners in the
performance of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other Partners of the same or any other obligation of such Partners
hereunder. Failure by any Partner to complain of any act or failure to act of
the other Partners or to declare any such other Partner in default, irrespective
of how long such failure continues, shall not constitute a waiver by such
Partner of its rights hereunder.
18.4 LIMITATION ON RIGHT TO PURCHASE PARTNERSHIP INTEREST.
Notwithstanding anything in this Agreement to the contrary, the right of a
Partner to purchase the Partnership Interest of the other Partners shall cease
20 years and 11 months after the death of the last survivor of the descendants
living as of the date hereof of Xxxxxx X. X. Xxxx, immediate past President of
the United States of America.
18.5 WAIVER OF DISSOLUTION UNDER THE UNIFORM PARTNERSHIP ACT. Any
dissolution of the Partnership shall occur only as provided in Article 10
hereof, and each Partner hereby waives and renounces its rights under the IUPA
to seek a court decree of dissolution, to seek the
28
appointment of a liquidator of the Partnership, and to seek a partition of any
Partnership property.
18.6 RELATIONSHIP OF THE PARTNERS. Nothing herein shall be
construed to authorize a Partner to act as general agent for the other Partners.
18.7 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 intent and purpose of this Agreement.
18.8 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
18.9 AGREEMENT IN COUNTERPARTS. This Agreement may be executed in
as many counterparts as may be deemed necessary and convenient. Each counterpart
when so executed shall be deemed an original, but all counterparts shall
constitute one and the same instrument.
18.10 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto relative to the Partnership. Exhibits 9.1 and 15 are
incorporated into this Agreement by reference.
29
IN WITNESS WHEREOF, the parties hereto have duly caused the execution
of this Agreement by their duly authorized officers, as of the day and year
first above written.
BLACK BEAUTY RESOURCES, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Title: President
THOROUGHBRED, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Title: Vice President
30
EXHIBIT LIST
9.1 Major Decisions
15 Arbitration
EXHIBIT "9.1"
MAJOR DECISIONS
1. Any change in, addition to, or exclusion from, the purposes of the
Partnership, or the setting up or substantial alteration or divestment
of any major business activity or activities of the Partnership.
2. The approval of, and any material change in, the annual budget and
business plan of the Partnership.
3. Any specific capital project or capital expenditure not covered by an
approved budget and business plan, or any decision requiring the
Partners to make additional capital contributions to the Partnership.
4. Any contract or other commitment which cannot be cancelled by the
Partnership without penalty and requiring, or potentially requiring,
the expenditure of more than $25,000 or having, or potentially having,
a material impact upon the business of the Partnership, except
contracts or other commitments in respect of which authority to commit
the Partnership shall have been approved in an annual budget and
business plan or is delegated to the Chief Executive Officer by general
or specific action of the Partnership Committee.
5. Any contract or arrangement between the Partnership, on the one hand,
and one Partner or an Affiliate of such Partner, on the other hand, if
such arrangement is subject to Partnership Committee approval under
Section 9.4 of the Agreement.
6. The commencement or settlement of litigation or the settlement of any
claim or environmental proceeding involving or potentially involving
$25,000 or more in value at issue plus costs.
7. The appointment of any person as Chief Executive Officer or the removal
or dismissal of any person holding that office; or the establishment of
salary and employee benefits for the Chief Executive Officer; or the
approval of any contract of employment for the Chief Executive Officer.
8. The appointment of any person to, or the removal or dismissal of any
person from, a senior managerial position with the Partnership; the
designation of which positions constitute senior managerial positions;
or the establishment of salaries and employee benefits for the holders
of such positions.
9. Any borrowing by the Partnership, other than the incurrence of trade
payables in the ordinary course of business, the imposition of any
mortgage or other encumbrance on assets of the Partnership for any
financing transaction, including any incurrence of a
contingent liability with respect thereto and any lease commitment
which is either noncancelable or only cancelable at a penalty; other
than a loan by a Partner to the Partnership or the incurrence of
liabilities approved in an annual budget and business plan. Also, any
decision by the Partnership to pre-pay any long term indebtedness of
the Partnership.
10. Any sale or other disposal of one or more capital assets of the
Partnership having an aggregate value on the books of the partnership
in excess of $100,000 in any one year.
11. Any matter relating to company, corporate or partnership titles, names
or trade names, designations, descriptions, designs, emblems or
insignia used or to be used by the Partnership.
12. Adoption or amendment of pension or other employee benefit plans.
13. Approval of all significant tax returns of the Partnership before
filing.
14. The approval of any labor contract (other than the applicability of the
Jobs MOU pursuant to the Consent and Release of even date) or the
settlement of any significant work stoppage.
15. Questions of Business ethics.
16. Any merger, consolidation, dissolution, winding-up or any sale of all
or a substantial portion of the assets of the Partnership, and the
decision as to whether any of the Partnership assets are to be
distributed to the Partner "in kind" in connection with any dissolution
or winding-up of the business of the Partnership.
17. Acquisition by the Partnership of any interest in any corporation,
partnership joint venture or other unincorporated association.
18. The determination whether the Partnership should join any industrial
bargaining group or trade association having similar functions.
EXHIBIT 15
ARBITRATION AGREEMENT
I. MATTERS SUBJECT TO ARBITRATION
Any claim or dispute between any of the Partners which arises out of or
relates to that certain Amended and Restated Partnership Agreement
between BBR and Thoroughbred dated February, 1999 ("Partnership
Agreement"), other than certain matters excluded under Article XV shall
be arbitrable. The Partners hereby agree that, as to all arbitrable
claims or disputes, these provisions provide the exclusive remedy (ies)
and bar any court proceeding on the same question; provided that, any
Partner may pursue any judicial remedy in any court having jurisdiction
to compel arbitration or to enforce or appeal any decision, award,
remedy or sanction of the arbitration panel ("Panel") pursuant to
Article VIII, X or XI hereof. Unless prohibited by applicable law, the
Panel shall decide whether a claim or dispute is arbitrable under the
Agreement.
II. CHOICE OF FORUM AND LAW
A. Choice of Forum
Unless otherwise agreed in writing by the Partners, the
arbitration and all meetings and hearings relative thereto
shall be held in Evansville, Indiana.
B. Choice of Law
All decisions, awards, orders, proceedings and procedures
pursuant to this Agreement shall be governed, as a matter of
contract, by Articles I through XVIII. Where such a proceeding
or procedure is not addressed by this Agreement, the Federal
Arbitration Act as presently in effect shall apply, as a
matter of contract. To the extent not in conflict with either
this Agreement or
the Federal Arbitration Act, the law of the State of Indiana,
including its substantive law, shall apply to such decisions,
awards, orders, proceedings and procedures.
III. ARBITRATORS
A. Number and Method of Selection
Three arbitrators shall comprise the Panel for any proceeding
or procedure under this Agreement. The Partner invoking
arbitration shall include in the notice thereof a list of the
names, business addresses, and affiliations of three neutral
arbitrators acceptable to it. Upon receipt of that notice,
each of the other Partners, in their respective answers
thereto shall include, as provided in Article VI.A, the names,
business addresses and affiliations of three neutral
arbitrators acceptable to it. Upon receipt of that answer, the
Partner invoking arbitration shall contact the other Partners,
and they shall attempt to mutually select three neutral
arbitrators. Upon request by any Partner, the Partners shall
participate in interviewing each proposed arbitrator. If the
Partners fail to agree on the selection of one or more
arbitrators within 14 days from the date the Partner invoking
the arbitration receives the other Partners' answers, then any
Partner may refer the selection of those Panel members not so
selected to a judge of the Federal District Court for the
Southern District of Indiana, Evansville Division. When the
three arbitrators are finally selected, they shall promptly
notify each Partner of their respective mailing addresses and
affiliations.
B. Minimum Qualification
The Panel shall consist of at least one arbitrator who, at the
time of his/her selection, is an attorney currently licensed
to actively practice in at least one state or is a retired
federal or state judge.
C. Selection of Chair
The Panel shall be chaired by an attorney/judge who meets the
minimum qualification in Article III.B. If more than one Panel
member is such an attorney/judge, a majority of the Panel
shall determine which attorney/judge shall chair the Panel.
D. Vacancies
If any Panel member is unable or unwilling to continue to
serve at any time prior to the issuance of the Panel's
decision and award, the remaining two Panel members shall
mutually select a replacement. Upon their failure to make that
selection within 7 days of such vacancy, any Partner may
request a judge of the Federal District Court for the Southern
District of Indiana, Evansville Division, to select that
replacement.
E. Compensation
Whoever selects an arbitrator shall determine, at the time of
selection, that arbitrator's compensation. The compensation of
the arbitrators shall be borne equally by the Partners, unless
otherwise apportioned by the Panel as provided in Article XI.
F. Oath
At the Panel's first meeting, and in any event before
proceeding with the preliminary hearing described in Article
VI.C, each arbitrator shall take the oath of office, which
shall be in the form of the "Arbitrator's Oath" set forth in
the American Arbitration Association's then "Notice of
Appointment."
X. Xxxxxx
The Panel shall have the powers stated in this Agreement, as
well as any power reasonably necessary to exercise or
implement any such stated powers. All powers of the Panel
shall be exercised by a majority of the Panel.
H. No Liability to Any Partner
The Partners hereby agree that no arbitrator shall be liable
to any Partner for any act or omission in connection with any
arbitration, proceeding or procedure conducted under, or any
decision, award or order with respect to, this Agreement.
IV. USE AND COMPENSATION OF CONSULTANTS
Whenever the Panel desires, it may use one or more consultants to
enable it to more clearly understand any technical, financial or
scientific matters related to any claim or dispute at issue; provided
that, the cost thereof shall not exceed an amount previously agreed to
in writing by the Partners. In making its decision and award, the Panel
may fully or partially use, or may disregard, any information or report
prepared or developed by any such consultant. The cost of all
consultants shall be borne equally by the Partners, unless otherwise
awarded by the Panel as provided in Article XI.
V. REPRESENTATION BY COUNSEL
Any Partner, at its sole election, may be represented by counsel of its
choice at any and all times during the arbitration.
VI. PROCEDURES
A. Commencement
Any Partner may invoke arbitration by notifying the other
Partner, within one year of the date the claim or dispute
first arose. The date such notice is mailed shall be the
effective date the arbitration is invoked for all purposes of
this Agreement. In addition to listing its three proposed
neutral arbitrators in that notice as required by Article
III.A, the notice shall state with reasonable specificity each
claim or dispute and the relief sought. Within 20 days of the
receipt of the notice, the receiving Partner shall send its
written answer thereto by certified mail, return receipt
requested, to the other Partner. Each answer shall include the
list of that answering Partner's three proposed neutral
arbitrators and a reasonably specific statement of its view of
each such claim or dispute, including all defenses, offsets,
counterclaims, and any relief sought which arise out of or
relate to each such claim or dispute.
B. Closed Hearings
All proceedings under this Agreement, including the
preliminary and final hearings, shall be closed to the public,
including, without limitation, the print and electronic media,
unless otherwise agreed to in writing by the Partners.
C. Preliminary Hearing
1. Setting the Hearing; Prehearing Statement
Following the selection of the third member of the
Panel and receipt of the other Partner's answer, the
Panel shall set a date, time and place for a
preliminary hearing and shall so notify the Partners
in writing.
Such notice shall be submitted to each Partner within
10 days of the date the third member of the Panel is
selected. The preliminary hearing shall occur no
sooner than 14 days and no later than 28 days from
the date such notice is received by each Partner. Not
later than 2 days prior to the commencement of the
preliminary hearing, each Partner shall submit a copy
of its proposed prehearing report to each Panel
member and to the other Partner. Each prehearing
statement shall identify:
a. every claim or dispute to be arbitrated;
b. every legal issue involved in the
arbitration;
c. every relevant fact and legal issue which
can be stipulated;
d. each witness that Partner intends to call at
the final hearing, a summary of that
testimony, and each document that Partner
intends to offer into evidence at that
hearing, but such matter shall be subject to
revision as a result of any second
preliminary hearing requested by a Partner
and deemed warranted and scheduled by the
Panel; and
e. all discovery that Partner intends to
undertake in accordance with Article VII.
A Partner may amend its proposed prehearing report at
the preliminary hearing. After the close of the last
preliminary hearing, any change to a proposed
prehearing report shall be within the Panel's
discretion; provided that, no such change shall be
permitted by the Panel less than 15 days prior to the
commencement of the final
hearing, or at any time without prior written notice
to, and an opportunity to object by, the Partners.
2. Panel's Duties at Preliminary Hearing
The Panel shall perform the following tasks,
seriatim, at the preliminary hearing:
a. require each Panel member, if not previously
sworn, to take the oath of office;
b. identify every claim or dispute to be
arbitrated;
c. identify every stipulated fact and issue of
law;
d. identify the discovery each Partner intends
to undertake and establish a date for its
completion in accordance with Article VII,
which date shall not be less than 20 days
nor more than 60 days from the date of the
Panel's initial preliminary hearing report;
e. determine the matters in Article VI.C.3
relative to the Partners' final hearing
briefs;
f. set the date, place, time and duration for
the final hearing, which shall be consistent
with Article IX.B and which date shall not
be less than 30 days nor more than 60 days
from the date discovery is required to be
completed as provided in Article VI.C.2.d;
g. establish an agenda for the final hearing;
and
h. issue its initial or final preliminary
hearing report, as the case may be.
Any objection to the Panel's actions on any of these
tasks shall be raised by a Partner at the preliminary
hearing, followed by notice to the Panel and the
other Partner within 5 days after the conclusion of
that hearing, failing which such Partner shall be
conclusively deemed to have waived any objection
thereto. If, on motion by a Partner, the Panel
believes a second preliminary hearing is warranted,
the Panel may schedule such a hearing so long as that
hearing does not increase by more than 10 days what
otherwise would have been the duration of the entire
arbitration procedure under this Agreement had no
second preliminary hearing ever been held.
Within 15 days from the completion of the last
preliminary hearing, the Panel shall send a written
copy of the Panel's final preliminary hearing report
to each Partner by certified mail, return receipt
requested. This report shall contain the Panel's
decisions with respect to tasks a. through h. in
Article VI.C.2. The Panel may amend this report, but
no such amendment shall occur less than 15 days prior
to the commencement of the final hearing, or at the
time without prior written notice to, and a
reasonable opportunity to object by, each Partner.
3. The Partners' Final Hearing Briefs
Each Partner shall submit to the Panel and to the
other Partner its final hearing brief on or before
the date set by the Panel in its final preliminary
hearing report, which date shall be no later than 20
days prior to the commencement of the final hearing.
In its final
preliminary hearing report, the Panel shall determine
what this brief shall address and shall establish a
page limitation therefor, but, unless mooted by the
second preliminary hearing, each brief shall:
a. identify all witnesses, by name, address,
title and affiliation, that Partner intends
to call at the final hearing;
b. contain a summary in reasonable detail of
the nature of each such witness' testimony;
and
c. include by way of attachment a photocopy of
each document that Partner intends to
introduce at the final hearing.
Any witness not so identified shall not be permitted
to testify at the final hearing, and any photocopy of
a document not so attached shall not be admitted into
evidence at that hearing. Within 7 days of its
receipt of each other Partner's final hearing brief,
each Partner shall submit to the Panel and to the
other Partner an amendment to its final hearing
brief, which shall contain all objections that
Partner has to the authenticity of any of the
photocopied documents attached to the other Partners'
final hearing briefs. Any such photocopied document
not so objected to shall be deemed authenticated for
purposes of the final hearing.
VII. DISCOVERY AND SUBPOENAS
If there are material facts in dispute, any Partner may pursue any
method of discovery permitted by the Federal Rules of Civil Procedure,
notwithstanding Rule 81(a)(3) thereof; provided that, in no event shall
the duration of all discovery, including all discovery requests and
responses, exceed the time established by the Panel pursuant to Article
VI.C.2.d. Discovery costs may be awarded by the Panel as provided in
Article XI. The Panel at any time may issue subpoenas for the
attendance of witnesses and the production
of books, records, documents and other evidence for any proceeding or
procedure under this Agreement. The Panel may issue a discovery order
to reasonably protect a Partner's competitive and confidential
information.
VIII. INTERLOCUTORY POWERS OF PANEL
A. Decisions
The Panel may decide any matter in advance of the final
hearing, including, without limitation, any matter which may
be dispositive of the claim or dispute being arbitrated.
B. Hearings and Sanctions
Notwithstanding anything in this Agreement to the contrary, if
a Partner fails to fully and timely comply with this Agreement
or with any reasonable order of the Panel, the Panel may hold
a hearing on the default. The defaulting Partner shall be
notified by the Panel of the date, time, location and nature
of that hearing and of the sanctions the Panel may impose.
Such notice shall be sent not less than 10 days prior to the
commencement of the hearing. If the defaulting Partner fails
to appear at that hearing, the Panel may conduct an ex parte
hearing, then or later, which it deems desirable to remedy
such default. Following any such ex parte hearing, the Panel
shall notify each Partner in writing of its decision and
award. Such award shall be consistent with Articles X and XI.
IX. FINAL HEARING
A. Final Prehearing Order
Not later than 15 days prior to the commencement of the final
hearing, the Panel shall submit a copy of its final prehearing
order to each Partner. The final prehearing order shall:
1. resolve any matter not finalized in the Panel's final
preliminary hearing report, as originally issued or
amended; and
2. finalize each of the matters set forth in the
Partners' final hearing briefs, as originally
submitted or amended.
B. Procedure
The final hearing shall occur in one continuous session over a
period not to exceed 5 days, with no recess in excess of 15
hours except for Saturdays, Sundays and Holidays. The Panel
shall conduct the final hearing in accordance with its final
prehearing order. A transcript and an electronic recording
shall be made of all testimony and proceedings at the final
hearing. The Panel shall arrange for a reporter to make such a
transcript and recording. Except as provided in the last
paragraph of Article VI.C.3, the Panel shall consider all
evidence presented by a Partner which is relevant to any claim
or dispute being arbitrated and which is not unduly
repetitious of any previous evidence presented by that
Partner. No other rules of evidence shall apply. The Panel
chair shall administer the oath to each witness before the
witness testifies. The Panel may require that each Partner
submit a short opening and/or closing brief. At the close of
all evidence, the Partners shall be given a reasonable period,
but not to exceed 3 days, in which to make one final attempt
to settle all claims and disputes being arbitrated before the
Panel issues its decision and award as provided in Article X.
Only evidence offered and admitted at the final hearing shall
be considered by the Panel in reaching its decision and award.
X. THE PANEL'S DECISION AND AWARD
Not later than 14 days after the completion of the final hearing, the
Panel shall submit to each Partner a copy of its written decision and
award on each arbitrated claim and dispute. The decision and award
shall be concise, and shall include findings of fact, conclusions of
law, and a reasoned decision. It also shall include the remedies in
Article XI which are awarded, including the time and method for payment
of all awards. All members of the Panel shall sign the decision and
award. However, if a Panel member dissents in whole or in part from the
decision and award, that member shall so indicate by appropriate
notation thereon or by a separate signed, written dissenting opinion
attached thereto within that same 14-day period. The decision and award
shall be final, and judgment may be entered thereon in any court having
jurisdiction thereof. Where required by applicable law, the decision
and award shall be acknowledged, and a copy of the oaths of each Panel
member shall be attached thereto.
XI. REMEDIES
The Panel may grant, award, modify or vacate any remedy deemed
appropriate, including, without limitation, specific performance,
damages, costs and expenses of the arbitration proceeding, and pre- and
post-decision and award interest. The Panel shall not award any
punitive damages. The actual damages, the costs and expenses of the
arbitration proceeding, and interest shall be separately identified in
the Panel's decision and award. The Panel may apportion such damages,
costs, expenses and interests between or among the Partners as it deems
equitable.
XII. COMMUNICATIONS BETWEEN THE PARTNERS AND THE PANEL
No oral communications between a Partner and any Panel member shall
occur unless the other Partner is present during that communication.
Written communication between a
Partner and any Panel member is permissible only if the other Partners
and all other Panel members timely receive a copy of such written
communication.
XIII. NOTICES
All notices and correspondence from any member of the Panel to a
Partner, or from a Partner to the other Partners or to any member of
the Panel, shall be in writing and shall be sent by certified mail,
return receipt requested. If given to a Partner, such notice and
correspondence shall be sent to the addressee's mailing address stated
in Section 17.1 of the Partnership Agreement or to such address as
otherwise designated. If given to a Panel member, it shall be sent to
the mailing address provided by that member to the Partners as provided
in Article III.A. Except for the one-year deadline for invoking
arbitration in Article VI.A, and except as otherwise may be provided in
this Agreement, all notices and correspondence shall be effective and
deemed delivered when received by the addressee or any employee or
agent thereof.
XIV. COMPUTATION OF TIME LIMITS
All time limits set forth in this Agreement include Saturdays, Sundays
and Holidays, except where the last day falls on one of those days. In
that event, such time limit shall be extended to include the next
weekday immediately following that last day which is not a Saturday,
Sunday or Holiday.
XV. WAIVER
If a Partner participates in any arbitration proceeding or procedure
with actual or constructive knowledge that any provision or requirement
of this Agreement has not been complied with, and fails to timely
object thereto in writing to the Panel, that Partner shall be deemed to
have waived the right to object to such noncompliance.
XVI. APPEAL
Any appeal of the Panel's decision and award to any court having
jurisdiction thereof shall be governed exclusively by this Article XVI.
A. Time for Appeal
No such appeal from the Panel's decision and award shall be
timely unless filed with the clerk of the court on or before
the 15th day following the date of the appealing Partner's
receipt of that decision and award; provided that, if the
appeal is predicated on corruption or fraud, it shall be made
on or before the 15th day following the first date such
grounds are known or should have been known.
B. Grounds for Appeal
1. Vacation
The Panel's decision and award shall be vacated only
if:
a. it was procured by corruption, fraud or
other undue means; or
b. there was partiality or misconduct by two or
more Panel members, which substantially
prejudiced the appealing Partner; or
c. the Panel exceeded its powers under this
Agreement, which substantially prejudiced
the appealing Partner; or
d. the Panel failed to follow some of the
procedures in this Agreement, including,
without limitation, those in Article VI, or
failed to meet some of the time limits set
forth in this Agreement, and that failure
substantially prejudiced the appealing
Partner.
2. Modification
The Panel's decision and award shall be modified only
if:
a. there was an evident material miscalculation
of figures contained in the decision and
award, or an evident material mistake in the
description of any person, thing or property
referred to therein; or
b. the decision and award included a matter not
submitted to the Panel, but such
modification shall apply only to that
matter; or
c. the reason for the modification is to give
full force and effect to the Panel's
decision and award.
XVI. SURVIVAL OF THE TERMS AND CONDITIONS
The terms and conditions of this Agreement shall survive the
termination or expiration of the Partnership Agreement to the extent
necessary for their complete enforcement and for the full protection of
the Partner in whose favor they run.
XVII. SEVERABILITY
If any portion of this Agreement is unenforceable for any reason, the
remainder of this Agreement shall be severed from such portion, and, as
severed, shall be binding on and enforceable against the Partners;
provided that, if Article VII is unenforceable in whole or
in substantial part, this Agreement shall automatically terminate and
shall be unenforceable against the Partners.
