Exhibit 10.1
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AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
MOBILE SATELLITE VENTURES LP
November 12, 2004
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TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS...................................................................2
Section 1.1 Definitions.........................................................2
Section 1.2 Headings............................................................8
Section 1.3 Interpretation......................................................8
ARTICLE II CONTINUATION AND TERM..........................................................8
Section 2.1 Continuation........................................................8
Section 2.2 Name................................................................9
Section 2.3 Term................................................................9
Section 2.4 Registered Agent and Office.........................................9
Section 2.5 Principal Place of Business.........................................9
Section 2.6 Qualification in Other Jurisdictions................................9
Section 2.7 Agreement...........................................................9
ARTICLE III PURPOSE AND POWERS OF THE PARTNERSHIP.........................................9
Section 3.1 Purpose.............................................................9
Section 3.2 Powers of the Partnership...........................................9
Section 3.3 Limitations on Partnership Powers...................................9
ARTICLE IV CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS....................................10
Section 4.1 Capital Contributions..............................................10
Section 4.2 Status of Capital Contributions....................................10
Section 4.3 Limited Partnership Interest.......................................11
Section 4.4 Capital Accounts...................................................11
ARTICLE V PARTNERS.......................................................................11
Section 5.1 Powers of Limited Partners.........................................11
Section 5.2 No General Partner Liability.......................................12
Section 5.3 Actions of the Limited Partners....................................12
Section 5.4 Partition..........................................................12
Section 5.5 Withdrawal.........................................................12
Section 5.6 Removal of the General Partner by Limited Partners.................12
Section 5.7 Bankruptcy, Resignation, Withdrawal, Etc. of General Partner.......12
ARTICLE VI MANAGEMENT....................................................................12
Section 6.1 Management by the General Partner..................................12
Section 6.2 Restrictions.......................................................13
Section 6.3 General Partner's Time.............................................13
Section 6.4 No Liability; Indemnity............................................13
Section 6.5 Reliance by Third Parties..........................................13
Section 6.6 General Authority..................................................14
Section 6.7 Limited Liability..................................................14
Section 6.8 Special Purpose Provision..........................................14
Section 6.9 Grant of Power of Attorney.........................................14
Section 6.10 Terms of Grant.....................................................14
Section 6.11 Separate Form......................................................15
ARTICLE VII ALLOCATIONS..................................................................15
Section 7.1 Profits and Losses.................................................15
Section 7.2 Special Allocations................................................16
Section 7.3 Allocation Rules...................................................17
Section 7.4 Section 704(c) of the Code.........................................18
Section 7.5 Uncertainties in Allocations and Distributions.....................18
ARTICLE VIII DISTRIBUTIONS...............................................................18
Section 8.1 Distributions......................................................18
Section 8.2 Distributions to Pay Taxes.........................................19
Section 8.3 Dissolution........................................................19
Section 8.4 Withholding Taxes..................................................19
Section 8.5 Limitations on Distribution........................................19
Section 8.6 Capital Proceeds...................................................20
ARTICLE IX TRANSFERS; PARTNERSHIP REGISTRATION RIGHTS....................................20
Section 9.1 Incorporation of Section 8 of the Stockholders' Agreement..........20
Section 9.2 Partnership Registration Rights....................................20
ARTICLE X BOOKS AND RECORDS..............................................................20
Section 10.1 Books, Records and Financial Statements............................20
Section 10.2 Accounting Method..................................................21
Section 10.3 Audit..............................................................22
ARTICLE XI TAX MATTERS...................................................................22
Section 11.1 Tax Matters Partner................................................22
Section 11.2 Election...........................................................23
Section 11.3 Taxation as Partnership............................................23
ARTICLE XII LIABILITY, EXCULPATION AND INDEMNIFICATION...................................23
Section 12.1 Liability..........................................................23
Section 12.2 Exculpation........................................................23
Section 12.3 Indemnification....................................................24
Section 12.4 Expenses...........................................................25
Section 12.5 Insurance..........................................................25
Section 12.6 Outside Businesses.................................................25
ARTICLE XIII DISSOLUTION, LIQUIDATION AND TERMINATION....................................26
Section 13.1 Dissolution........................................................26
Section 13.2 Notice of Dissolution..............................................26
Section 13.3 Liquidation........................................................26
Section 13.4 Termination........................................................26
Section 13.5 Claims of the Limited Partners.....................................26
ARTICLE XIV AMENDMENTS...................................................................27
Section 14.1 Amendments.........................................................27
ARTICLE XV MISCELLANEOUS.................................................................27
Section 15.1 Further Assurances.................................................27
Section 15.2 Notices............................................................27
Section 15.3 Failure to Pursue Remedies.........................................28
Section 15.4 Cumulative Remedies................................................28
Section 15.5 Binding Effect.....................................................28
Section 15.6 Severability.......................................................28
Section 15.7 Counterparts.......................................................28
Section 15.8 Integration........................................................28
Section 15.9 Confidentiality....................................................28
Section 15.10 Governing Law; Consent to Jurisdiction.............................29
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
MOBILE SATELLITE VENTURES LP
THIS LIMITED PARTNERSHIP AGREEMENT OF MOBILE SATELLITE VENTURES LP
(the "Partnership"), dated as of November 12, 2004, is entered into by and
among Mobile Satellite Ventures GP Inc., a Delaware corporation (the "General
Partner"), and each of the limited partners whose names are set forth on the
Schedule of Limited Partners attached as Schedule I hereto (each individually,
a "Limited Partner," and collectively, together with any Additional Limited
Partners (as hereinafter defined) hereafter admitted to the Partnership in
accordance with this Agreement, the "Limited Partners" and together with the
General Partner, the "Partners.").
WHEREAS, Motient Corporation, a Delaware corporation, as sole member,
formed a limited liability company (the "LLC") pursuant to the Delaware
Limited Liability Company Act (6 Del. C. ss. 18-101, et seq., the "LLC Act")
by filing a Certificate of Formation on June 16, 2000 with the Secretary of
State of Delaware and entering into a limited liability company operating
agreement dated as of June 16, 2000; and
WHEREAS, the operating agreement of the LLC was amended and restated
effective as of June 29, 2000 by a certain First Amended and Restated Limited
Liability Company Agreement (the "LLC Agreement"); and
WHEREAS, the members of the LLC and the General Partner approved the
conversion of the LLC to a Delaware limited partnership in accordance with the
terms and conditions set forth in the LLC Agreement and pursuant to Section
18-216 of the LLC Act and Section 17-217 of the Delaware Act, whereupon the
members of the LLC and certain other Persons (as hereinafter defined) became
Limited Partners of the Partnership and Mobile Satellite Ventures GP Inc. was
admitted as general partner of the Partnership; and
WHEREAS, the General Partner, executed, delivered and filed (or
caused to be delivered and filed) the Certificate of Conversion and the
Certificate of Limited Partnership pursuant to the terms of Section 17-204 of
the Delaware Act on November 26, 2001; and
WHEREAS, certain of the parties hereto are parties to that certain
Limited Partnership Agreement of the Partnership, dated as of November 26,
2001, as amended on August 21, 2003 and April 2, 2004 (the "November 2001
Partnership Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the November
2001 Partnership Agreement to, among other things, (i) provide that the
Partnership shall have one class of limited partnership interests; (ii)
eliminate all provisions relating to the class A preferred units of limited
partnership of the Partnership; and (iii) make certain other changes as
provided herein.
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Partners hereby agree as
follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. Unless the context otherwise requires, the
terms defined in this Article I shall, for the purposes of this Agreement,
have the meanings herein specified.
"Additional Limited Partner" means a Person admitted to the
Partnership as a Limited Partner pursuant to Section 8.4 of the Stockholders'
Agreement.
"Adjusted Capital Account" means, with respect to any Limited
Partner, the balance in such Limited Partner's Capital Account, increased by
such Limited Partner's share of the Minimum Gain and "partner nonrecourse debt
minimum gain" (as defined in Treasury Regulations Section 1.704-2(i)(2)).
"Adjusted Capital Account Deficit" means, with respect to any Limited
Partner, the deficit balance, if any, in such Limited Partner's Capital
Account as of the end of the relevant Fiscal Year, after giving effect to the
following adjustments:
(i) Credit to such Capital Account any amounts which such
Limited Partner is obligated to restore or is deemed to be obligated
to restore pursuant to the penultimate sentences of Treasury
Regulations xx.xx. 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in
Treasury Regulations ss. 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Treasury Regulations ss. 1.704-1(b)(2)(ii)(d)
and shall be interpreted consistently therewith.
"Affiliate" means with respect to a specified Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with, the specified Person. As used in this definition, the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
"Agreement" means this Amended and Restated Limited Partnership
Agreement of the Partnership, as amended, modified, supplemented or restated
from time to time.
"Ancillary Agreements" has the meaning set forth in the Investment
Agreement.
"Bankruptcy" means, with respect to any Person, such Person shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors, or any proceeding shall be instituted
by or against such Person seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but
not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of sixty (60) days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for it, or for any substantial part of its property) shall occur; or
such Person shall take any action to authorize any of the actions set forth
above.
"Capital Account" means, with respect to any Limited Partner, the
account maintained for such Limited Partner in accordance with the provisions
of Section 4.4 hereof.
"Capital Contribution" means, with respect to any Limited Partner,
any contributions made to the Partnership pursuant to Section 4.1 hereof by
such Limited Partner with respect to the Limited Partnership Interest in the
Partnership now or hereafter held or purchased by such Limited Partner.
"Capital Event" means (a) a sale, transfer, or other disposition of
all or substantially all the assets of the Partnership or (b) any dissolution
and liquidation of the Partnership.
"Capital Proceeds" means the proceeds received (or in the case of a
distribution of the Partnership in kind deemed received if the property were
sold for its Gross Asset Value) by the Partnership from a Capital Event but
excluding any amounts reasonably determined by the General Partner to be
necessary to provide a reasonable reserve for working-capital needs or any
other contingencies of the Partnership.
"Certificate of Conversion" means the Certificate of Conversion of
the Partnership and any and all amendments thereto and restatements thereof
filed with the office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act.
"Certificate of Limited Partnership" means the Certificate of Limited
Partnership of the Partnership and any and all amendments thereto and
restatements thereof filed on behalf of the Partnership with the office of the
Secretary of State of the State of Delaware pursuant to the Delaware Act.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any corresponding federal tax statute enacted after the date of
this Agreement. A reference to a specific section (ss.) of the Code refers not
only to such specific section but also to any corresponding provision of any
federal tax statute enacted after the date of this Agreement, as such specific
section or corresponding provision is in effect on the date of application of
the provisions of this Agreement containing such reference.
"Competing Businesses" has the meaning set forth in Section 12.6 of
this Agreement.
"Confidential Information" has the meaning set forth in Section 15.9
of this Agreement.
"Control Party" means (i) an Affiliate that has direct or indirect
majority voting control of a Limited Partner, or (ii) an Affiliate that has a
majority of its voting interests held, directly or indirectly, by a Limited
Partner or by Persons that have direct or indirect voting control of a Limited
Partner.
"Covered Person" means any Limited Partner, any Affiliate of a
Limited Partner or any officers, directors, representatives, shareholders,
partners, employees, representatives or agents of a Limited Partner or their
respective Affiliates, or any directors, officers, shareholders, partners,
employees, representatives or agents of the Partnership or its Affiliates or
any liquidating trustee under Section 13.3.
"Delaware Act" means the Delaware Revised Uniform Limited Partnership
Act, 6 Del. C. ss. 17-101, et seq., as amended from time to time.
"Depreciation" means, for each Fiscal Year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such Fiscal Year or other period;
provided, however, that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such Fiscal
Year or other period, Depreciation shall be an amount that bears the same
ratio to such beginning Gross Asset Value as the federal income tax
depreciation, amortization or other cost recovery deduction with respect to
such asset for such Fiscal Year or other period bears to such beginning
adjusted tax basis; and provided further, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such Fiscal
Year or other period is zero, Depreciation shall be determined with reference
to such beginning Gross Asset Value using any reasonable method selected by
the General Partner.
"Fiscal Year" means (i) the period commencing upon the formation of
the Partnership and ending on December 31, 2001, (ii) any subsequent twelve
(12) month period commencing on January 1 and ending on December 31, or (iii)
any portion of the period described in clause (ii) of this sentence for which
the Partnership is required to allocate Profits, Losses and other items of
Partnership income, gain, loss or deduction pursuant to Article VII hereof.
"General Partner" has the meaning set forth in the opening paragraph
of this Agreement.
"Gross Asset Value" means, with respect to any asset, such asset's
adjusted basis for federal income tax purposes, except as follows:
(i) the initial Gross Asset Value of any asset contributed
by a Limited Partner to the Partnership shall be the gross fair
market value of such asset, as agreed to by the contributing Limited
Partner and the General Partner;
(ii) the Gross Asset Value of all Partnership assets shall
be adjusted to equal their respective gross fair market values, as
determined in good faith by the General Partner, as of the following
times: (a) the acquisition of an additional interest in the
Partnership by any new or existing Limited Partner or any other
adjustment in the Percentage Interests of the Limited Partners; (b)
the distribution by the Partnership to a Limited Partner of more than
a de minimis amount of Partnership assets as consideration for such
Limited Partner's Limited Partnership Interest; and (c) the
liquidation of the Partnership within the meaning of Treasury
Regulations ss. 1.704-1(b)(2)(ii)(g); and
(iii) the Gross Asset Value of any Partnership asset
distributed to any Limited Partner shall be the gross fair market
value of such asset on the date of distribution, as determined by the
General Partner.
If the Gross Asset Value of an asset has been determined or adjusted pursuant
to clause (i) or (ii) above, such Gross Asset Value shall thereafter be
adjusted by the Depreciation taken into account with respect to such asset for
purposes of computing Profits and Losses.
"Initial Public Offering" means the closing of a firm commitment
underwritten public offering of equity interests in the Partnership or its
successor.
"Investors" means each Limited Partner listed on Schedule I hereto as
an Investor, each other Person admitted as an Investor after the date hereof
and, subject to Section 8.2(i) of the Stockholders' Agreement, any Person
acquiring all or part of the Limited Partnership Interest of an Investor that
is admitted as a Limited Partner as provided herein.
"Investment Agreement" means that certain First Amended and Restated
Investment Agreement, dated as of August 8, 2003, among the MSV LP, Motient
Corporation, TMI Communications Delaware, Limited Partnership and the
investors named therein, as amended, restated, supplemented or revised from
time to time.
"Limited Investor" means Xxxx Ventures VII, LLC and its Affiliates
that may own Limited Partnership Interests.
"Limited Partner" has the meaning set forth in the opening paragraph
of this Agreement.
"Limited Partnership Interest" means a Limited Partner's aggregate
rights in the Partnership in accordance with this Agreement and the Delaware
Act, including such Limited Partner's right to share in the Profits and Losses
of the Partnership and right to receive distributions of the Partnership's
assets.
"LLC" has the meaning set forth in the first "Whereas" clause.
"LLC Act" has the meaning set forth in the first "Whereas" clause.
"LLC Agreement" has the meaning set forth in the second "Whereas"
clause.
"Minimum Gain" has the meaning set forth in Treasury Regulations
xx.xx. 1.704-2(b)(2) and 1.704-2(d).
"November 2001 Partnership Agreement" has the meaning set forth in
the fifth "Whereas" clause.
"Partner" has the meaning set forth in the opening paragraph of this
Agreement.
"Parent Transfer/Drag Along Agreement" means that certain Second
Amended and Restated Parent Transfer/Drag Along Agreement, dated as of the
date hereof, by and among the Partnership and the parent entities and their
respective subsidiaries named therein.
"Partnership" has the meaning set forth in the opening paragraph of
this Agreement.
"Percentage Interest" means with respect to any Limited Partner, the
ratio (expressed as a percentage) of the Units actually held by such Limited
Partner as of the date of determination to the aggregate Units actually held
by all Limited Partners on such date, and shall be reflected on Schedule I in
accordance with Section 2.1(d). For purposes of voting and providing consents
under this Agreement and for purposes of Section 8 of the Stockholders'
Agreement, but not, for the avoidance of doubt, for purposes of distributions
of cash or tax and other economic rights under this Agreement, "Percentage
Interests" means, with respect to each Limited Partner, the ratio (expressed
as a percentage) of the Units held by such Limited Partner as of the date of
determination to all Units held by all Limited Partners.
"Person" means any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
or other legal entity or organization.
"Pledge Agreement" means that certain Pledge and Guarantee Agreement,
dated as of November 26, 2001, by and among TMI Communications and Company,
Limited Partnership, TMI Communications Delaware, Limited Partnership and the
other parties thereto, as amended, supplemented or revised from time to time.
"Profits" and "Losses" means, for each Fiscal Year an amount equal to
the Partnership's taxable income or loss for such Fiscal Year, determined in
accordance with ss. 703(a) of the Code (but including in taxable income or
loss, for this purpose, all items of income, gain, loss or deduction required
to be stated separately pursuant to ss. 703(a)(1) of the Code), with the
following adjustments:
(i) any income of the Partnership exempt from federal income
tax and not otherwise taken into account in computing Profits or
Losses pursuant to this definition shall be added to such taxable
income or loss;
(ii) any expenditures of the Partnership described in ss.
705(a)(2)(B) of the Code (or treated as expenditures described in ss.
705(a)(2)(B) of the Code pursuant to Treasury Regulations ss.
1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in
computing Profits or Losses pursuant to this definition shall be
subtracted from such taxable income or loss;
(iii) in the event the Gross Asset Value of any Partnership
asset is adjusted in accordance with clause (ii) or (iii) of the
definition of "Gross Asset Value" above, the amount of such
adjustment shall be taken into account as gain or loss from the
disposition of such asset for purposes of computing Profits or
Losses;
(iv) gain or loss resulting from any disposition of any
asset of the Partnership with respect to which gain or loss is
recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the asset disposed of,
notwithstanding that the adjusted tax basis of such asset differs
from its Gross Asset Value; and
(v) in lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable
income or loss, there shall be taken into account Depreciation for
such Fiscal Year or other period, computed in accordance with the
definition of "Depreciation" above.
Any items of income, gain, deduction and loss included within Profits and
Losses shall be determined in a manner consistent with Section 704(b) of the
Code and the Treasury Regulations thereunder.
"Required Majority" means Limited Partners holding at least a
majority of the Percentage Interests held by the Limited Partners entitled to
vote on any matter as of the date of determination.
"Regulatory Allocations" has the meaning set forth in Section 7.2(f).
"Stockholders' Agreement" means the Stockholders' Agreement by and
among General Partner and the Limited Partners.
"Tax Matters Partner" has the meaning set forth in Section 11.1.
"Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"Unit" means a unit of interest in the partnership with the rights
and privileges specified herein for Units and representing a Percentage
Interest equal to one divided by the number Units then held by all Limited
Partners.
"Voting Agreement" means that certain Voting Agreement, dated as of
the date of this Agreement, by and among Spectrum Space IV Parallel, Inc.,
Spectrum Space Equity Investors IV, Inc., Spectrum Space IV Managers, Inc.,
Columbia Space (QP), Inc., Columbia Space (AI), Inc., Columbia Space Partners,
Inc., Telcom Satellite Ventures II, Inc., Telcom Satellite Ventures Inc., TMI
Communications Delaware, Limited Partnership, and MSV Investors, LLC.
Section 1.2 Headings. The headings and subheadings in this Agreement
are included for convenience and identification only and are in no way
intended to describe, interpret, define or limit the scope, extent or intent
of this Agreement or any provision hereof.
Section 1.3 Interpretation. Throughout this Agreement, nouns,
pronouns and verbs shall be construed as masculine, feminine, neuter, singular
or plural, whichever shall be applicable. All references herein to "Articles",
"Sections" and clauses shall refer to corresponding provisions of this
Agreement, unless otherwise specified.
ARTICLE II
CONTINUATION AND TERM
Section 2.1 Continuation.
(a) The Partnership shall continue as a limited partnership under and
pursuant to the provisions of the Delaware Act and the Partners agree that the
rights, duties and liabilities of the Partners shall be as provided in the
Delaware Act, except as otherwise provided herein.
(b) As of the date hereof, the Partnership shall have one class of
limited partnership interests and such class of interests shall be designated
as "Units."
(c) Mobile Satellite Ventures GP Inc. shall act as the general
partner of the Partnership until such time as a Person is admitted as a
successor to the General Partner or as an additional general partner.
(d) The name and mailing address of each Limited Partner, the number
of Units issued to such Limited Partner, the Percentage Interests represented
thereby, and the amount of each Limited Partner's Capital Account as of the
date of this Agreement is listed on Schedule I attached hereto. The General
Partner shall update Schedule I from time to time as necessary to reflect
accurately the information therein, including updates to reflect new issuances
of Limited Partnership Interests or assignments and transfers of all or any
part of a Limited Partner's Limited Partnership Interest, in each case, in
accordance with this Agreement and the Investment Agreement and indicating the
name and address of such new Limited Partner, transferee or assignee along
with an accurate description of the Limited Partnership Interest so issued
transferred or assigned, including whether such new Limited Partner,
transferee or assignee has been or will be admitted to the Partnership as a
substituted Limited Partner or an Additional Limited Partner, as the case may
be, and provide copies of the same to the Partners. Any amendment or revision
to Schedule I made in accordance with this Agreement and the Investment
Agreement shall not be deemed an amendment to this Agreement. Any reference in
this Agreement to Schedule I shall be deemed to be a reference to Schedule I
as amended and in effect from time to time.
Section 2.2 Name. The name of the limited partnership formed by this
Agreement and by the filing of the Certificate of Conversion and the
Certificate of Limited Partnership is "Mobile Satellite Ventures LP." The
business of the Partnership may be conducted upon compliance with all
applicable laws under any other name designated, from time to time, by the
General Partner.
Section 2.3 Term. The term of the Partnership commenced on the date
of the filing of the certificate of formation of the LLC in the office of the
Secretary of State of the State of Delaware and shall continue until dissolved
in accordance with this Agreement, or if sooner, in accordance with the
Delaware Act.
Section 2.4 Registered Agent and Office. The Partnership's registered
agent and office in Delaware shall be CT Corporation System, Xxxxxxxxxx,
Xxxxxxxx, 00000. At any time, the General Partner may designate another
registered agent and/or registered office, provided such new designation shall
not adversely affect any Partner.
Section 2.5 Principal Place of Business. The principal place of
business of the Partnership shall be at 00000 Xxxxxxxxx Xxxxxxxxx, Xxxxxx,
Xxxxxxxx 00000. At any time, the General Partner may change the location of
the Partnership's principal place of business.
Section 2.6 Qualification in Other Jurisdictions. The General Partner
shall cause the Partnership to be qualified, formed or registered under
assumed or fictitious name statutes or similar laws in any jurisdiction in
which the Partnership transacts business in which such qualification,
formation or registration is required or desirable.
Section 2.7 Agreement. This Agreement completely amends, restates and
supersedes the November 2001 Partnership Agreement.
ARTICLE III
PURPOSE AND POWERS OF THE PARTNERSHIP
Section 3.1 Purpose. The Partnership is formed for the object and
purpose of, and the nature of the business to be conducted and promoted by the
Partnership is, engaging in any lawful act or activity in which limited
partnerships may be engaged under the Delaware Act and engaging in any and all
activities necessary, convenient, desirable or incidental to the foregoing.
Section 3.2 Powers of the Partnership. The Partnership shall have the
power and authority to take any and all actions necessary, appropriate,
proper, advisable, convenient or incidental to or for the furtherance of the
purposes set forth in Section 3.1.
Section 3.3 Limitations on Partnership Powers. Notwithstanding the
foregoing provisions of Section 3.2, the Partnership shall not do business in
any jurisdiction that would jeopardize the limitation on liability afforded to
the Limited Partners under the Delaware Act or this Agreement in such
jurisdiction or elsewhere.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
Section 4.1 Capital Contributions.
(a) The General Partner shall not be required to make any Capital
Contribution to the capital of the Partnership, shall have no Capital Account
and shall not acquire a Percentage Interest or any Units, but shall
nonetheless be obligated to serve as the general partner of the Partnership
pursuant to Section 17-401(a) of the Delaware Act.
(b) Capital Contributions shall be paid in the manner provided in the
Investment Agreement or a subscription agreement, as the case may be. Subject
to Section 8.1 of the Stockholders' Agreement, the Partnership may admit
Persons as Limited Partners and issue Units and Limited Partnership Interests
to such Persons without obligating such Persons to make Capital Contributions.
(c) No Limited Partner shall be required or permitted to contribute
additional capital to the Partnership except that, subject to the pre-emptive
rights and other applicable provisions of Section 8 of the Stockholders'
Agreement incorporated herein, a Limited Partner shall be permitted to make
additional Capital Contributions pursuant to a subscription agreement approved
by the General Partner and the Required Majority.
Section 4.2 Status of Capital Contributions.
(a) Except as otherwise provided in this Agreement, no Limited
Partner shall demand or receive a return of its Capital Contribution and no
return of a Limited Partner's Capital Contribution shall be made hereunder if
such distribution would violate applicable state law. Under circumstances
requiring a return of any Capital Contribution, no Limited Partner shall have
the right to demand or receive property other than cash, except as may be
specifically provided in this Agreement.
(b) No Limited Partner shall receive any interest, salary or drawing
with respect to its Capital Contribution or its Capital Account or for
services rendered on behalf of the Partnership or otherwise in its capacity as
a Limited Partner, except as otherwise specifically provided in this
Agreement. Nothing herein shall preclude any Limited Partner from serving the
Partnership in another capacity, including as an employee, contractor or
consultant, or otherwise dealing with the Partnership in its individual
capacity and receiving compensation or consideration therefor.
(c) Except as otherwise provided herein or by applicable state law,
the Partners shall be liable only to make Capital Contributions as provided in
Section 4.1, and no Partner shall be required to lend any funds to the
Partnership nor to make any additional Capital Contributions. No Partner shall
have any personal liability for the repayment of any Capital Contribution of
any other Limited Partner.
Section 4.3 Limited Partnership Interest. A Limited Partnership
Interest shall for all purposes be personal property. A Limited Partner has no
interest in specific Partnership property.
Section 4.4 Capital Accounts.
(a) An individual Capital Account shall be established and maintained
for each Limited Partner. Each Limited Partner's Capital Account as of the
date of this Agreement is reflected on Schedule I hereto.
(b) The Capital Account of each Limited Partner shall be maintained
in accordance with the following provisions:
(i) to such Limited Partner's Capital Account there shall be
credited such Limited Partner's Capital Contribution, such Limited
Partner's distributive share of Profits and items of gross income and
gain and the amount of any Partnership liabilities that are assumed
by such Limited Partner or that are secured by any Partnership assets
distributed to such Limited Partner;
(ii) to such Limited Partner's Capital Account there shall
be debited the amount of cash and the Gross Asset Value of any
Partnership assets distributed to such Limited Partner pursuant to
any provision of this Agreement, such Limited Partner's distributive
share of Losses and items of gross deduction and loss and the amount
of any liabilities of such Limited Partner that are assumed by the
Partnership or that are secured by any property contributed by such
Limited Partner to the Partnership; and
(iii) in determining the amount of any liability for
purposes of this Subsection 4.4(b), there shall be taken into account
ss. 752(c) of the Code and any other applicable provisions of the
Code and the Treasury Regulations.
ARTICLE V
PARTNERS
Section 5.1 Powers of Limited Partners. Except as otherwise
specifically provided by this Agreement or required by the Delaware Act, no
Person other than the General Partner, including any Limited Partner acting in
its capacity as such, (a) shall have any right to "participate in the control
of the business" of the Partnership as such phrase is construed under Section
17-303(b) of the Delaware Act, (b) shall have the power to be an agent of the
Partnership or (c) shall take any action or exercise any right with respect to
the Partnership not permitted to be taken or exercised by a Limited Partner
pursuant to this Agreement and Section 17-303 of the Delaware Act. In no event
shall any Person, other than the General Partner, have any right, power or
authority (1) to transact any business in the name of the Partnership, (2) to
act for, or on behalf of, the Partnership or (3) to bind the Partnership, such
powers being vested solely and exclusively in the General Partner.
Section 5.2 No General Partner Liability. The General Partner shall
have no personal liability for the repayment of the Capital Contributions of
the Limited Partners.
Section 5.3 Actions of the Limited Partners. Any action of the
Partnership requiring the consent or approval of the Limited Partners, or any
percentage thereof, shall be taken by a consent in writing signed by Limited
Partners holding not less than the Percentage Interests necessary to take such
action pursuant to this Agreement.
Section 5.4 Partition. Each Limited Partner waives any and all rights
that it may have to maintain an action for partition of the Partnership's
property.
Section 5.5 Withdrawal. A Limited Partner may not withdraw from the
Partnership prior to the dissolution and winding up of the Partnership except
as set forth in this Agreement or the Investment Agreement. A Limited Partner
attempting to resign in violation of this Agreement shall not be entitled to
receive any distribution and shall not otherwise be entitled to receive the
fair value of its Limited Partnership Interest except as otherwise expressly
provided for in this Agreement. The withdrawal of any Limited Partner for any
reason shall not result in the dissolution of the Partnership.
Section 5.6 Removal of the General Partner by Limited Partners. A
Required Majority of the Limited Partners may at any time effect the removal
of the General Partner with or without cause by delivering to the General
Partner a notice of removal, such removal to become effective as provided in
such notice of removal.
Section 5.7 Bankruptcy, Resignation, Withdrawal, Etc. of General
Partner. After the resignation, withdrawal, dissolution, Bankruptcy or
insolvency of the General Partner which would otherwise result in the
dissolution of the Partnership by operation of law, the Partnership will be
dissolved, unless, within ninety (90) days after the date of such resignation,
withdrawal, dissolution, Bankruptcy, or insolvency, the Required Majority
agree in writing to continue the business of the Partnership and to the
appointment, effective as of the date of withdrawal or removal, of one or more
successor General Partners.
ARTICLE VI
MANAGEMENT
Section 6.1 Management by the General Partner. Except as otherwise
expressly provided herein and subject to the restrictions contained in
Sections 5.1, 5.6. 5.7, 6.2 and 6.6 hereof, management of the Partnership and
control of its business shall be vested solely in the General Partner. Except
for situations in which the approval of the Limited Partners is required by
this Agreement, the Investment Agreement or by non-waivable provisions of
applicable law, the General Partner shall have the exclusive right, power and
discretion to manage, operate and control the Partnership, to do all things
necessary or appropriate to carry on its business and purposes, including but
not limited to, the right to incur and satisfy obligations relating to the
formation and operation of the Partnership, and to exercise all rights and
powers conferred upon the General Partner by the Delaware Act, in each case
subject to the terms and conditions set forth in this Agreement.
The General Partner shall have the power to delegate authority to the
officers and such other employees, agents and representatives of the
Partnership as it may from time to time deem appropriate and in accordance
with this Agreement. Any delegation of authority by the General Partner to
take any action must be approved by the General Partner in the same manner as
would be required for the General Partner to take such action directly.
Unless authorized to do so by this Agreement or by the General
Partner, no attorney-in-fact, employee, Limited Partner or other agent of the
Partnership shall have any power or authority to bind the Partnership in any
way, to pledge its credit or to render it liable monetarily for any purpose.
Section 6.2 Restrictions.
(a) Notwithstanding the grant of authority to the General Partner
under Section 6.1 hereof, without the prior written consent of the Required
Majority of the disinterested Limited Partners, the General Partner shall not
permit or cause the Partnership to enter into transactions with its Limited
Partners or Affiliates of its Limited Partners except as otherwise permitted
in the Investment Agreement, this Agreement or the Ancillary Agreements.
(b) Any vacancy in the position of General Partner shall be filled by
the affirmative written consent of the Required Majority.
Section 6.3 General Partner's Time. The General Partner shall devote
all of its time to the affairs of the Partnership.
Section 6.4 No Liability; Indemnity. Neither the General Partner nor
any of its officers, directors, employees or agents shall be liable,
responsible or accountable to the Partnership or any Partner for any act or
omission performed or omitted pursuant to the authority granted to it
hereunder or by law, or for any claim, loss, cost, damage, liability, demand
or expense (including, without limitation, attorneys' fees), resulting from
the performance of their duties hereunder in accordance with the requirements
of this Agreement; provided, however, that any such Person shall be liable,
accountable and responsible for their willful misconduct. The Partnership
shall indemnify the General Partner, its officers, directors, employees and
agents and hold them harmless from any claim, loss, cost, damage, liability,
demand or expense (including, without limitation, attorneys' fees and
disbursements), incurred or sustained by them by reason of any act performed
by them, or any omission by them for or on behalf of the Partnership and in
furtherance of its interest, consistent with the requirements of this
Agreement, but this indemnity shall not require the Partners to make any
Capital Contribution therefor; provided, however, such indemnity shall not
extend to the willful misconduct of any such Person.
Section 6.5 Reliance by Third Parties. Third parties dealing with the
Partnership may rely conclusively upon the power and authority of the General
Partner to act as set forth herein and shall not be required to inquire into
or ascertain the authority of the General Partner so to act.
Section 6.6 General Authority. The General Partner shall, except as
otherwise provided in this Agreement, have all the rights and powers and shall
be subject to all the restrictions and liabilities of a general partner in a
limited partnership under the Delaware Act.
Section 6.7 Limited Liability. Performance of one or more of the acts
described in Article V and this Article VI with respect to the Partners shall
not in any way impose any personal liability on any Limited Partner. No
Partner or, in the appropriate case, former Partner shall be liable for any
debts or obligations of the Partnership in excess of its Capital Contributions
(subject to the obligation of a Limited Partner of the Partnership under the
Delaware Act to repay any funds wrongfully distributed to it). All
undistributed cash, which would otherwise be distributed to the Limited
Partners, shall be available to creditors to satisfy the debts and obligations
of the Partnership prior to the time of actual distribution.
Section 6.8 Special Purpose Provision. The General Partner, and any
additional or substitute General Partner of the Partnership, may not be an
individual and shall at all times have as its sole purpose to act as the
General Partner of the Partnership, and shall be engaged in no other business
or have any other purpose. Any General Partner of the Partnership (a) shall
have organizational documents which conform in all material respects to the
organizational documents of the initial General Partner, and (b) shall be
owned by the Limited Partners pro rata in accordance with their Percentage
Interests from time to time, excluding for this purpose, any Limited Investor.
Section 6.9 Grant of Power of Attorney. Each Limited Partner, by its
execution hereof, hereby irrevocably makes, constitutes and appoints the
General Partner as its true and lawful attorney-in-fact, with power and
authority in its name, place and stead, to make, execute, sign, acknowledge
and file on behalf of such Limited Partner and on behalf of the Partnership:
(a) Such amendments to the Certificate of Limited Partnership as the
General Partner shall reasonably deem necessary or desirable consistent with
this Agreement;
(b) All papers which may be deemed necessary or desirable by the
General Partner to effect the termination of the Partnership after its
dissolution as provided in this Agreement; and
(c) All such other instruments, documents and certificates which may
from time to time be required or permitted by the laws of any state, the
United States of America, or any political subdivision or agency thereof, to
effectuate, implement, continue and defend the valid and subsisting existence,
rights and property of the Partnership as a limited partnership and its power
to carry out its purposes as set forth in this Agreement; provided, however,
that any decisions other than administrative ones shall first have been
approved by the applicable approvals as provided herein.
Section 6.10 Terms of Grant. The foregoing appointment in Section
6.9:
(a) Is irrevocable and shall be deemed to be a special power coupled
with an interest in recognition of the fact that the General Partner will be
relying upon such power of attorney to act as contemplated by this Agreement
in such execution, acknowledgment and filing and such other actions by the
General Partner on behalf of the Limited Partners and the Partnership;
(b) Shall survive the dissolution or Bankruptcy of any Limited
Partner granting the same and the transfer, by operation of law or otherwise,
by any Limited Partner of the whole or any part of its interest in and to the
Partnership, its capital, Profits or Losses hereunder; and
(c) May be exercised by the General Partner on behalf of any Limited
Partner by a facsimile signature of the General Partner, as attorney-in-fact
for such Limited Partner.
Section 6.11 Separate Form. The foregoing appointment is self
operative but, in confirmation thereof, each Limited Partner hereby agrees to
execute, acknowledge and deliver to the General Partner, promptly upon request
therefor by the General Partner, a power of attorney in recordable form
satisfactory to the General Partner evidencing the foregoing appointment.
ARTICLE VII
ALLOCATIONS
Section 7.1 Profits and Losses.
(a) Except as otherwise set forth in Section 7.1(b) or Section 7.2
hereof, Profits, Losses and items of income, gain, deduction and loss of the
Partnership for each Fiscal Year shall be allocated among all Persons who were
Limited Partners during such Fiscal Year in a manner that will, as nearly as
possible, cause the Adjusted Capital Account balance of each Limited Partner
(as computed for purposes of section 704(b) of the Code) at the end of such
Fiscal Year to be equal to the sum of the amounts of cash or the Gross Asset
Value of other property distributable to such Limited Partner pursuant to
Article VIII hereof at such time assuming that all the remaining assets of the
Partnership were sold for their Gross Asset Values, all debts of the
Partnership were paid according to their terms (with any nonrecourse debt for
U.S. Federal income tax purposes deemed paid in amounts not in excess of the
Gross Asset Value of the property securing such nonrecourse debt) and the cash
or other property received therefrom was distributed to the Limited Partners
in accordance with the priorities set forth in Article VIII hereof.
(b) Notwithstanding Section 7.1(a), Losses allocated pursuant to
Section 7.1(a) to any Limited Partner for any Fiscal Year shall not exceed the
maximum amount of Losses that may be allocated to such Limited Partner without
causing such Limited Partner to have an Adjusted Capital Account Deficit at
the end of such Fiscal Year. Any Losses in excess of the limitation in this
Section 7.1(b) shall be specially allocated solely to the other Limited
Partners in accordance with the priorities in Article VIII hereof to the
maximum extent permitted by this Section 7.1(b). In addition, Profits shall be
allocated to reverse any Losses specially allocated pursuant to the preceding
sentence in inverse order to those special loss allocations.
(c) An allocation of Profits or Losses to a Limited Partner shall be
treated as an allocation to such Limited Partner of the same share of each
item of income, gain, loss and deduction that is taken into account in
computing such Profits or Losses, as the case may be.
Section 7.2 Special Allocations. The following special allocations
shall be made in the following order:
(a) Minimum Gain Chargeback. If there is a net decrease in Minimum
Gain (determined as provided in Treasury Regulations xx.xx. 1.704-2(d) and
1.704-2(g)) during any Fiscal Year, certain items of income and gain,
including gross income or gain, shall be allocated to the Limited Partners in
the amounts and manner described in Treasury Regulations ss. 1.704-2(f). This
Section 7.2(a) is intended to comply with the minimum gain chargeback
requirement relating to partnership non-recourse liabilities (as defined in
Treasury Regulations ss. 1.704-2(f)) and shall be so interpreted.
(b) Partner Non-recourse Debt Minimum Gain Chargeback. If there is a
net decrease in Minimum Gain attributable to partner non-recourse debt
(determined pursuant to Treasury Regulations ss. 1.704-2(i)) during any Fiscal
Year, certain items of income and gain, including gross income or gain, shall
be allocated as quickly as possible to those Limited Partners which had a
share of the Minimum Gain attributable to the partner non-recourse debt (such
share determined pursuant to Treasury Regulations ss. 1.704-1(i)(5)) in the
amounts and manner described in Treasury Regulations ss. 1.704-2(i) and (j).
This Section 7.2(b) is intended to comply with the minimum gain chargeback
requirement relating to partner non-recourse debt set forth in Treasury
Regulations ss. 1.704-2(i)(4)) and shall be so interpreted.
(c) Allocation of Non-recourse Deductions. Deductions attributable to
obligations with respect to which a Limited Partner bears the economic risk of
loss within the meaning of Treasury Regulation ss. 1.704-2(b)(4) shall be
allocated to the Limited Partner or Limited Partners that bear the economic
risk of loss for such debt in accordance with the requirements of Treasury
Regulation ss. 1.704-2(i)(1). "Nonrecourse Deductions" (as such term is
defined in Treasury Regulations xx.xx. 1.704-2(b)(1) and 1.704-2(c)) of the
Partnership shall be allocated to the Limited Partners in proportion to their
Percentage Interests.
(d) Qualified Income Offset. In the event any Limited Partner
unexpectedly receives any adjustments, allocations or distributions described
in Treasury Regulations ss. 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of
Partnership income and gain (consisting of a pro rata portion of each item of
Partnership income, including gross income, and gain for such year) shall be
specially allocated to such Limited Partner in an amount and manner sufficient
to eliminate, to the extent required by the Treasury Regulations, the Adjusted
Capital Account Deficit of such Limited Partner as quickly as possible,
provided that an allocation pursuant to this Section 7.2(d) shall be made if
and only to the extent that such Limited Partner would have an Adjusted
Capital Account Deficit after all other allocations provided for in this
Article VII have been tentatively made as if this Section 7.2(d) were not in
the Agreement.
(e) Gross Income Allocation. In the event any Limited Partner has a
deficit Capital Account at the end of any Fiscal Year that is in excess of the
sum of (i) the amount such Limited Partner is obligated to restore and (ii)
the amount such Limited Partner is deemed to be obligated to restore pursuant
to the penultimate sentences of Treasury Regulations xx.xx. 1.704-2(g)(1) and
1.704-2(i)(5), such Limited Partner shall be specially allocated items of
Partnership income and gain (consisting of a pro rata portion of each item of
Partnership income, including gross income, and gain for such year) in the
amount of such excess as quickly as possible, provided that an allocation
pursuant to this Section 7.2(e) shall be made if and only to the extent that
such Limited Partner would have a deficit Capital Account in excess of such
sum after all other allocations provided for in this Article VII have been
tentatively made as if Section 7.2(d) above and this Section 7.2(e) were not
in the Agreement.
(f) Regulatory Allocations. The allocations set forth in Section
7.2(a)-(e) hereof (the "Regulatory Allocations") are intended to comply with
certain requirements of the Treasury Regulations. It is the intent of the
Limited Partners that, to the extent possible, all Regulatory Allocations
shall be offset either with other Regulatory Allocations or with special
allocations of other items of Partnership income, gain, loss or deduction
pursuant to this Section 7.2(f). Therefore, the General Partner shall make
such offsetting special allocations of Partnership income, gain, loss and
deduction in whatever manner it determines appropriate, so that, after such
offsetting allocations are made, each Limited Partner's Capital Account
balance is, to the extent possible, equal to the Capital Account balance such
Limited Partner would have if the Regulatory Allocations were not part of the
Agreement and all Partnership items were allocated pursuant to Section 7.1. In
exercising its discretion, the General Partner shall take into account how
future Regulatory Allocations pursuant to Sections 7.2(a) and (b) hereof that,
although not yet made, are likely to offset other Regulatory Allocations
previously made under Section 7.2(c) hereof.
(g) Section 754 Adjustment. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to ss. 734(b) or 743(b)
of the Code is required, pursuant to Treasury Regulations ss.
1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital
Accounts, the amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis), and such gain or loss
shall be specially allocated to the Limited Partners in a manner consistent
with the manner in which their Capital Accounts are required to be adjusted
pursuant to such regulation.
Section 7.3 Allocation Rules.
(a) For purposes of determining the Profits, Losses or any other
items allocable to any period, Profits, Losses and any such other items shall
be determined on a daily, monthly or other basis, as determined by the General
Partner using any method that is permissible under ss. 706 of the Code and the
Treasury Regulations thereunder.
(b) Except as otherwise provided in this Agreement, all items of
Partnership income, gain, loss, deduction and any other allocations not
otherwise provided for shall be divided among the Limited Partners in the same
proportions as they share Profits and Losses for the Fiscal Year in question.
(c) The Limited Partners are aware of the income tax consequences of
the allocations made by this Article VII and hereby agree to be bound by the
provisions of this Article VII in reporting their shares of Partnership income
and loss for income tax purposes.
Section 7.4 Section 704(c) of the Code.
(a) In accordance with ss. 704(c) of the Code and the Treasury
Regulations thereunder, income, gain, loss and deduction with respect to any
property contributed to the capital of the Partnership shall, solely for
income tax purposes, be allocated among the Limited Partners so as to take
account of any variation between the adjusted basis of such property to the
Partnership for federal income tax purposes and its initial Gross Asset Value.
The Limited Partners acknowledge that the Gross Asset Values as of the date of
this Agreement shall be established by the General Partner in accordance with
Treasury Regulations ss. 1.704-1(b)(2)(iv)(f) to reflect the Capital Accounts
as shown on Schedule I hereto.
(b) In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to the definition of "Gross Asset Value" contained in
Section 1.1 hereof, subsequent allocations of income, gain, loss and deduction
with respect to such asset shall take account of any variation between the
adjusted basis of such asset for federal income tax purposes and its Gross
Asset Value in the same manner as under ss. 704(c) of the Code and the
Treasury Regulations thereunder.
(c) Allocations pursuant to this Section 7.4 shall be calculated by
the General Partner using the traditional method under Code Section 704(c) and
the Treasury Regulations promulgated thereunder.
Section 7.5 Uncertainties in Allocations and Distributions. In the
event there is an ambiguity regarding the application of this Article VII or
Article VIII to a particular transaction, the income and expense from such
transaction shall be allocated among the Limited Partners, and distributions
of cash in respect of such transaction shall be made, in such proportions that
the General Partner, in its reasonable discretion, deems equitable,
practicable and consistent with this Agreement, the regulations under the Code
and other applicable law; provided, however, that no such allocation or
distribution by the General Partner shall discriminate against any Limited
Partner.
ARTICLE VIII
DISTRIBUTIONS
Section 8.1 Distributions. Except as otherwise provided in Section
8.2, Section 8.6 and Section 13.3 below, the Partnership shall make
distributions of cash to the Limited Partners in proportion to their
respective Percentage Interests at such time or times and in such amounts as
the General Partner may determine in its sole discretion.
Section 8.2 Distributions to Pay Taxes. Prior to March 15 of the next
following Fiscal Year, the General Partner shall distribute to the Limited
Partners an amount sufficient for the Limited Partners out of cash available
therefor to pay their tax liabilities which arise in respect of their shares
of cumulative net taxable income and gain of the Partnership for such Fiscal
Year, determined as set forth below by the General Partner, prior to the
making of any distributions pursuant to Sections 8.1 and 8.6 hereof. Any funds
distributed pursuant to this Section 8.2 shall reduce the amount that a
Limited Partner would otherwise receive pursuant to Sections 8.1 and 8.6. For
purposes of this Section 8.2, the amount of tax distributions made to a
Limited Partner for any Fiscal Year shall be equal to the excess, if any, of
(i) the product of (A) the excess, if any, of (I) its cumulative share of net
taxable income or gain for the current Fiscal Year and all prior Fiscal Years
over (II) its cumulative share of net taxable loss and deduction for all prior
Fiscal Years and (B) the sum of the highest rate of Canadian or United States
federal, state, provincial and local tax imposed on any Limited Partner
calculated, with respect to a Limited Partner that is a pass-through entity
(for Canadian or United States tax purposes), based on the type of taxpayer
which the beneficial owners of interests in such pass-through entity are for
such year with respect to items of the same character as such net income and
gain, taking into account the deductibility or creditability of federal,
state, provincial and local taxes for Canadian or United States federal income
tax purposes and based on such reasonable assumptions as the General Partner
determines in good faith to be appropriate (such assumptions not to include
the effect of any net operating losses or any other similar tax benefits
available to a Limited Partner), over (ii) the amount of any distributions
made to such Limited Partner pursuant to this Section 8.2 in a prior Fiscal
Year.
Section 8.3 Dissolution. Upon the dissolution and winding up of the
Partnership, the assets of the Partnership shall be distributed to the Limited
Partners as provided in Section 13.3 below.
Section 8.4 Withholding Taxes. All amounts withheld pursuant to the
Code or any provision of any state, local or foreign tax law with respect to
any payment, distribution or allocation to the Limited Partners shall be
treated as amounts distributed to the Limited Partners pursuant to this
Article VIII for all purposes of this Agreement. The Partnership is authorized
to withhold from distributions and to pay over to any federal, state, local or
foreign government any amounts required to be so withheld pursuant to the Code
or any provision of any other federal, state, local or foreign law and shall
allocate such amounts to those Limited Partners with respect to which such
amounts were withheld. Each Limited Partner shall indemnify the Partnership
and each of the Partners against any losses (including, without limitation,
any tax penalties and interest) incurred by reason of any failure by the
Partnership to make adequate deduction or withholding from any distribution
made to such Partner.
Section 8.5 Limitations on Distribution. Notwithstanding any
provision to the contrary contained in this Agreement, the Partnership shall
not make a distribution to the Limited Partners if such distribution in the
aggregate would violate Section 17-607 of the Delaware Act or other applicable
law.
Section 8.6 Capital Proceeds. Following the receipt by the
Partnership of Capital Proceeds, a portion of such Capital Proceeds sufficient
for each Limited Partner to pay its tax liabilities which arise in respect of
the Capital Event giving rise to such Capital Proceeds, determined as set
forth in Section 8.2 above, shall be distributed to the Limited Partners
pursuant to Section 8.2 above. If the General Partner, in its sole discretion,
determines that the Partnership shall distribute any remaining Capital
Proceeds, such Capital Proceeds shall be distributed among the Limited
Partners as follows:
(a) First, to pay the creditors of the Partnership (including, for
the avoidance of doubt, any Limited Partners who may also be creditors of the
Partnership, but only to the extent of the indebtedness owed to such
creditors); and
(b) Second, to the Limited Partners in a manner to cause the
cumulative prior and current Capital Proceeds distributed to each of the
Limited Partners to be in the same relative proportions as the Limited
Partners' respective Percentage Interests.
ARTICLE IX
TRANSFERS; PARTNERSHIP REGISTRATION RIGHTS
Section 9.1 Incorporation of Section 8 of the Stockholders'
Agreement. The provisions of Section 8 of the Stockholders' Agreement are
hereby incorporated by reference in their entirety in this Agreement. No
Limited Partner is a party to any other agreement, other than the
Stockholders' Agreement, the Investment Agreement, the Pledge Agreement, the
Parent Transfer/Drag Along Agreement and the Voting Agreement with respect to
the transfer or disposition of voting rights with respect to any Units.
Section 9.2 Partnership Registration Rights. Upon an Initial Public
Offering, the Partnership shall grant to each of the Limited Partners
customary registration rights in the securities of the Partnership
commensurate with such Limited Partner's Percentage Interest, provided, that
such rights shall not be exercisable in connection with the Initial Public
Offering itself and further provided that such registration rights shall be
subject to the provisions of any underwriting agreement entered into by the
Partnership with respect to such Initial Public Offering.
ARTICLE X
BOOKS AND RECORDS
Section 10.1 Books, Records and Financial Statements.
(a) At all times during the continuance of the Partnership, the
General Partner shall maintain separate books of account for the Partnership
that shall show a true and accurate record of all costs and expenses incurred,
all charges made, all credits made and received and all income derived in
connection with the operation of the Partnership business, in accordance with
generally accepted accounting principles consistently applied to the extent
not inconsistent with this Agreement. Such books of account, together with a
copy of this Agreement and of the Certificate of Limited Partnership, shall at
all times be maintained at the principal place of business of the Partnership
(or at the place of business of the Person to whom the duty to maintain these
books has been delegated in accordance herewith and identified in writing to
the Limited Partners) and shall be open to inspection and examination at
reasonable times by each Limited Partner and its duly authorized
representative for any purpose reasonably related to such Limited Partner's
interest as a Limited Partner of the Partnership.
(b) The General Partner shall prepare and maintain, or cause to be
prepared and maintained, the books of account of the Partnership. The
following financial information, which shall be certified to by an independent
certified public accountant, shall be transmitted by the General Partner to
each Limited Partner no later than three (3) months after the close of each
Fiscal Year of the Partnership:
(i) balance sheet of the Partnership as of the beginning and
close of such Fiscal Year; and
(ii) statement of Partnership profits and losses for such
Fiscal Year.
(c) The General Partner shall also prepare and maintain, or cause to
be prepared and maintained, such records and information as shall be necessary
to assist the Limited Partners in preparing and filing tax returns and other
filings pertaining to tax matters. The following information shall be
transmitted by the General Partner to each Limited Partner no later than six
(6) months after the close of each Fiscal Year of the Partnership (except
that, if requested by a Limited Partner for purposes of such Limited Partner's
tax filing, the General Partner will use its reasonable best efforts to
furnish such information to such Limited Partner within four (4) months of the
close of the Fiscal Year of the Partnership):
(i) statement of such Limited Partner's Capital Account as
of the close of such Fiscal Year, and changes therein during such
Fiscal Year; and
(ii) statement indicating such Limited Partner's share of
each item of Partnership income, gain, loss, deduction or credit for
such Fiscal Year for income tax purposes.
(d) For any Limited Partner that is (X) a company required to file
reports with the Securities and Exchange Commission (the "SEC") pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934, or a consolidated
subsidiary of such a company (such Limited Partner, a "Public Limited
Partner") and (Y) required by the SEC's rules and regulations as in effect
from time to time to file audited financial statements of the Partnership with
the SEC, the General Partner shall transmit the following financial
information to such Public Limited Partner, which information shall be
certified to by an independent certified public accountant, no later than
fifteen (15) days before the date on which such Public Limited Partner's
annual report on Form 10-K (or an equivalent report) is required to be filed
by such Public Limited Partner with the SEC:
(i) balance sheet of the Partnership as of the beginning and
close of such Fiscal Year; and
(ii) statement of Partnership profits and losses for such
Fiscal Year.
In addition, in any such case the General Partner will also prepare,
or cause to be prepared, audited financial statements of the Partnership
(including footnotes) meeting applicable requirements of the SEC's rules and
regulations with respect to financial statements to be included in reports
filed with the SEC, and will deliver such audited financial statements to the
Public Limited Partner no later than fifteen (15) days before the date such
Public Limited Partner is required to file the Partnership's audited financial
statements with the SEC.
(e) Within three (3) months after the close of each Fiscal Year, the
General Partner shall send to each Limited Partner a Form K-1 tax statement or
any successor form thereto.
(f) The General Partner shall prepare, or cause to be prepared, such
other statements as it deems necessary or advisable.
(g) To the extent any Public Limited Partner is required to include
audited financial statements of the Partnership in such Public Limited
Partner's filings with the SEC, the General Partner will cooperate with such
Public Limited Partner and its accountants in resolving any questions
regarding such financial statements. In this regard, the General Partner will
afford such Public Limited Partner and its accountants reasonable access to
the Partnership's books and records, and will make the Partnership's officers
and employees available to such Public Limited Partner and its accountants
during normal business hours. The General Partner will also use its reasonable
best efforts to cause representatives of the Partnership's auditors to make
themselves available during normal business hours to address questions
regarding the Partnership's financial statements and/or the audit report
thereon, by such Public Limited Partner and/or its accountants.
Section 10.2 Accounting Method. For both financial and tax reporting
purposes and for purposes of determining profits and losses, the books and
records of the Partnership shall be kept on the accrual method of accounting
applied in a consistent manner and shall reflect all Partnership transactions
and be appropriate for the Partnership's business.
Section 10.3 Audit. The financial statements of the Partnership shall
be audited at the end of each Fiscal Year by an independent certified public
accountant selected by the General Partner, with such audit to be accompanied
by a report of such accountant containing its opinion. The cost of such audits
will be an expense of the Partnership. A copy of any such audited financial
statements and accountant's report will be made available for inspection by
the Limited Partners.
ARTICLE XI
TAX MATTERS
Section 11.1 Tax Matters Partner. The "Tax Matters Partner" of the
Partnership for purposes of ss. 6231(a)(7) of the Code shall be the General
Partner. The Tax Matters Partner and shall have the power to manage and
control, on behalf of the Partnership, any tax audit or administrative
proceeding at the Partnership level with the Internal Revenue Service relating
to the determination of any item of Partnership income, gain, loss, deduction
or credit for federal income tax purposes; provided, however, that the Tax
Matters Partner shall not settle any tax audit or administrative proceeding
without the consent of a majority in interest of the affected Limited
Partners. The Tax Matters Partner shall be fully indemnified by the
Partnership for all expenses incurred by the Tax Matters Partner with respect
to any such tax audit or administrative proceeding. The Tax Matters Partner
may be replaced by the holders of a Required Majority of the Limited
Partnership Interests.
Section 11.2 Election. Upon the reasonable request of any Limited
Partner, the Tax Matters Partner shall make, or take all reasonable efforts to
revoke, an election on behalf of the Partnership, in accordance with ss. 754
of the Code, so as to adjust the basis of Partnership property in the case of
a distribution of property within the meaning of ss. 734 of the Code, and in
the case of a transfer of a Partnership interest within the meaning of ss. 743
of the Code. Each Limited Partner shall, upon request of the Tax Matters
Partner, supply the information necessary to give effect to such an election.
Section 11.3 Taxation as Partnership. The Partners intend that the
Partnership will be treated as a partnership for U.S. federal income tax
purposes and, to the extent permitted under applicable law, all other income
tax purposes and the Partner will take such action, as is reasonably requested
by the General Partner, to make all elections and perform all acts as are
necessary to have the Partnership treated as such.
ARTICLE XII
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 12.1 Liability.
(a) Except as otherwise provided by the Delaware Act, the debts,
obligations and liabilities of the Partnership, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of
the Partnership, and no Covered Person shall be obligated personally for any
such debt, obligation or liability of the Partnership solely by reason of
being a Covered Person.
(b) Except as otherwise expressly required by law, a Limited Partner,
in its capacity as Limited Partner, shall have no liability in excess of (a)
the amount of its Capital Contributions and its obligations hereunder to make
Capital Contributions, (b) its share of any assets and undistributed profits
of the Partnership, (c) its obligation to make other payments expressly
provided for in this Agreement, and (d) the amount of any distributions
wrongfully distributed to it as determined under the Delaware Act.
Section 12.2 Exculpation.
(a) No Covered Person shall be liable to the Partnership or any other
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed, or omitted to be performed, by such Covered Person in good
faith on behalf of the Partnership and in a manner reasonably believed to be
within the scope of authority conferred on such Covered Person by this
Agreement, except that a Covered Person shall be liable for any such loss,
damage or claim incurred by reason of such Covered Person's willful
misconduct, fraud, gross negligence or breach of this Agreement.
(b) A Covered Person shall be fully protected in relying in good
faith upon the records of the Partnership and upon such information, opinions,
reports or statements presented to the Partnership by any Person as to matters
the Covered Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Partnership, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to Limited Partners might properly be paid.
Section 12.3 Indemnification.
(a) To the fullest extent permitted by applicable law, each Covered
Person shall be entitled to indemnification from the Partnership for any loss,
damage, claim or liability incurred by such Covered Person by reason of any
act or omission performed, or omitted to be performed, by such Covered Person
in good faith on behalf of the Partnership and within the scope of authority
conferred on such Covered Person by this Agreement, except that no Covered
Person shall be entitled to be indemnified in respect of any loss, damage,
claim or liability incurred by such Covered Person by reason of willful
misconduct, fraud, gross negligence or breach of this Agreement with respect
to such acts or omissions; provided, however, that any indemnity under this
Section 12.3 shall be provided out of and to the extent of Partnership assets
only, and no Covered Person shall have any personal liability on account
thereof.
(b) If any claim shall be asserted against a Covered Person, in
respect of which such Covered Person proposes to demand indemnification under
this Section 12.3 from the Partnership, such Covered Person shall notify the
General Partner to that effect with reasonable promptness after such
assertion, and the General Partner on behalf of the Partnership shall have the
right to assume the entire control of the defense or settlement of any such
claim, through its own attorneys and at its expense, and in connection
therewith, such Covered Person shall cooperate fully to make available to the
Partnership and the General Partner all information under its control relating
thereto.
(c) All rights to indemnification provided herein shall survive the
termination of this Agreement and the withdrawal, removal or insolvency of any
Partner; provided, that a claim for indemnification hereunder is made by or on
behalf of the Covered Person seeking such indemnification prior to the time
distribution in liquidation of the assets of the Partnership is made pursuant
to Article XIII.
(d) The Partnership may enter into indemnity contracts with Covered
Persons and adopt written procedures pursuant to which arrangements are made
for the advancement of expenses and the funding of obligations under Section
12.4 and containing such other procedures regarding indemnification as are
appropriate.
Section 12.4 Expenses. To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by a Covered Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Partnership prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Partner of an
undertaking by or on behalf of the Covered Person to repay such amount if it
shall be determined that the Covered Person is not entitled to be indemnified
as authorized in Section 12.3 hereof.
Section 12.5 Insurance. The Partnership may purchase and maintain
insurance, to the extent and in such amounts as the General Partner shall deem
advisable, on behalf of Covered Persons and such other Persons as the General
Partner shall determine, against any liability that may be asserted against or
expenses that may be incurred by any such Person in connection with the
activities of the Partnership or such indemnities, regardless of whether the
Partnership would have the power to indemnify such Person against such
liability under the provisions of this Agreement.
Section 12.6 Outside Businesses. The parties acknowledge that Covered
Persons have and may in the future have investments in other businesses that
may be similar to or competitive with the Partnership (collectively,
"Competing Businesses") independent of their investments in the Partnership.
By virtue of its rights under this Section, no Covered Person shall have any
obligation to the Partnership to refrain from making investments in Competing
Businesses, or otherwise engaging in any commercial activity; and neither the
Partnership nor any other Covered Person shall have any right hereunder with
respect to any such investments or activities undertaken by such Covered
Person. Without limitation of the foregoing, this Agreement shall not be
deemed to restrict the rights of each Covered Person to engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Partnership, and the Partnership and the other Covered Persons shall have no
rights or expectancy by virtue of such Covered Person's relationships with the
Partnership, this Agreement or otherwise in and to such independent ventures
or the income or profits derived therefrom; and the pursuit of any such
venture, even if such investment is in a Competing Business, shall not be
deemed wrongful or improper hereunder. No Covered Person shall be obligated to
present any particular investment opportunity to the Partnership even if such
opportunity is of a character that, if presented to the Partnership, could be
pursued by the Partnership, and Covered Persons shall continue to have the
right to take for their own respective account or to recommend to others any
such particular investment opportunity. The provisions of this Section 12.6
shall in no way limit or eliminate (i) Covered Persons' duties,
responsibilities and obligations with respect to any proprietary information
of the Partnership, including any applicable duty not to disclose or use such
proprietary information improperly or obtain therefrom an improper personal
benefit, or (ii) Covered Persons' obligations under the Investment Agreement
or any agreement, instrument or obligations (other than this Agreement).
ARTICLE XIII
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution. The Partnership shall be dissolved and its
affairs shall be wound up upon the first to occur of any of the following:
(a) consent of Limited Partners holding the Percentage Interests
equal to at least eighty percent (80%); or
(b) the occurrence of any of the events set forth in Section 5.7 and
the failure of the Required Majority to agree to continue the Partnership as
set forth therein; or
(c) the entry of a decree of judicial dissolution under Section
17-802 of the Delaware Act.
Section 13.2 Notice of Dissolution. Upon the dissolution of the
Partnership, the General Partner shall promptly notify the Limited Partners of
such dissolution.
Section 13.3 Liquidation. Upon dissolution of the Partnership, the
General Partner or, if such dissolution has occurred in accordance with
Section 13.1(b), the Required Majority shall appoint a liquidating trustee who
shall immediately commence to wind up the Partnership's affairs; provided,
however, that a reasonable time shall be allowed for the orderly liquidation
of the assets of the Partnership and the satisfaction of liabilities to
creditors so as to enable the Limited Partners to minimize the normal losses
attendant upon a liquidation. The Limited Partners shall continue to share
Profits and Losses during liquidation in the same proportions, as specified in
Article VII hereof, as before liquidation. The proceeds of liquidation shall
be distributed, as realized, in accordance with the provisions of Article VIII
hereof.
Section 13.4 Termination. The Partnership shall terminate when all of
the assets of the Partnership have been distributed in the manner provided for
in this Article XIII, and the Certificate of Limited Partnership shall have
been canceled in the manner required by the Delaware Act.
Section 13.5 Claims of the Limited Partners. The Limited Partners and
former Limited Partners shall look solely to the Partnership's assets for the
return of their Capital Contributions, and if the assets of the Partnership
remaining after payment of or due provision for all debts, liabilities and
obligations of the Partnership are insufficient to return such Capital
Contributions, the Limited Partners and former Limited Partners shall have no
recourse against the Partnership or any other Partner.
ARTICLE XIV
AMENDMENTS
Section 14.1 Amendments. Any amendments to this Agreement or any
waivers or consents hereunder, shall be adopted and be effective as an
amendment hereto or waiver or consent hereunder only if approved by the
Required Majority and, if such amendment, waiver or consent would adversely
affect the particular rights and interests of any Limited Partner
disproportionately to the adverse effects of such action on the rights and
interests of other Limited Partners, such action shall also require the
consent of such Limited Partner; provided, however, that no provision of this
Agreement which establishes a class vote and/or minimum Percentage Interest
required to take any action shall be amended in any respect which would reduce
such voting requirement, unless such amendment is approved by such Limited
Partners holding at least the Percentage Interest that would have been
required to take the action permitted to be taken under the provision to be
amended.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Further Assurances. The Partners shall cooperate with
each other and the Partnership and shall promptly execute, acknowledge and
deliver any assurances, approvals or documents reasonably requested by a
Limited Partner that is necessary for the requesting Partner or the
Partnership to satisfy its obligations hereunder or obtain the benefits
contemplated hereby.
Section 15.2 Notices. All notices provided for in this Agreement
shall be in writing, duly signed by the party giving such notice, and shall be
delivered personally, sent by a nationally recognized overnight courier,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Partnership, at the Partnership's mailing address
set forth below:
Mobile Satellite Ventures LP
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: General Counsel
(b) If given to the General Partner, at the General Partner's mailing
address set forth below:
Mobile Satellite Ventures GP Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to each Limited Partner as set forth in clause (c) below.
(c) If given to any Limited Partner, at the address set forth on
Schedule I hereof (or as modified from time to time by a Limited Partner upon
written notice to the General Partner).
Notices delivered personally to an addressee or sent by overnight
courier shall be deemed to have been given upon such delivery. Notices sent by
telecopier shall be deemed to have been given upon confirmation by telecopy
answerback (provided that the sending of any such notice is followed promptly
by the mailing of the original of such notice). Notices mailed by registered
or certified mail shall be deemed to have been given upon the expiration of
five (5) days after such notice has been deposited in the mail.
Section 15.3 Failure to Pursue Remedies. The failure of any party to
seek redress for violation of, or to insist upon the strict performance of,
any provision of this Agreement shall not prevent a subsequent act, which
would have originally constituted a violation from having the effect of an
original violation. No waiver of any breach of any of the terms of this
Agreement shall be effective unless such waiver is in writing and signed by
the Partner against whom such waiver is claimed.
Section 15.4 Cumulative Remedies. The rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
Section 15.5 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of all of the parties and, to the extent permitted by
this Agreement, their successors, legal representatives and assigns.
Section 15.6 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted.
Section 15.7 Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if all parties hereto had
signed the same document. All counterparts shall be construed together and
shall constitute one instrument.
Section 15.8 Integration. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
thereof and supersedes all prior agreements and understandings pertaining
thereto.
Section 15.9 Confidentiality. Each Partner acknowledges that in the
course of the formation, and during the operation, of the Partnership it has
or shall receive confidential and proprietary information concerning the
assets, business plans, intellectual property rights and operations of the
Partnership and the other Partners and Affiliates of such Persons
("Confidential Information"). Each Partner agrees that the Confidential
Information is a valuable asset of the Partnership or its owner, as the case
may be and its public disclosure or use outside of the Partnership's
activities without the prior consent of the Partnership and/or the relevant
Partner would cause substantial harm to the Partnership, such disclosing
Partner or other Person. Therefore, each Partner agrees to treat all
Confidential Information received by it with the amount of care that a
reasonable business person would use to protect to its own valuable and
proprietary confidential information and shall not disclose any Confidential
Information to any Person who does not have a contractual obligation with the
Partnership to keep such Confidential Information confidential or does not
have the right to have such Confidential Information disclosed to it under an
agreement with the Partnership. In addition, each Partner shall not
personally, and shall not permit other Persons (including its Affiliates) to
utilize Confidential Information for any purpose other than for the benefit of
the Partnership.
Notwithstanding the foregoing, a Partner may disclose Confidential
Information to its Affiliates, professional advisors, lenders and investors if
such Persons have agreed for the benefit of the Partnership, to comply with
the provision of this Section 15.9.
As used herein, "Confidential Information" shall not include
information (i) that has become generally available to the public through no
fault of the receiving Person, (ii) to the minimum extent necessary in order
to comply with any law, order, regulation, ruling or other governmental
request pursuant to subpoena or government order, provided that in the event a
receiving Person is subject to such a subpoena or order, it shall notify in
writing the General Partner of such event, and shall cooperate with any
reasonable request or efforts by the General Partner to take reasonable
legally permissible actions to limit the scope of disclosure required in order
for such Person to comply with such subpoena or order and (iii) as may be
required or appropriate in response to any report, statement or testimony
submitted to any municipal, state or national (including foreign regulatory
bodies having or claiming to have jurisdiction over such Person).
Section 15.10 Governing Law; Consent to Jurisdiction This Agreement
and the rights of the parties hereunder shall be interpreted in accordance
with the laws of the State of Delaware, and all rights and remedies shall be
governed by such laws without regard to principles of conflict of laws. Each
party agrees that, in connection with any legal suit or proceeding arising
with respect to this Agreement, it shall submit to the non-exclusive
jurisdiction of the United States District Courts for the District of Delaware
and the Southern District of New York or the applicable Delaware or New York
state court and agrees to venue in such courts.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
MOBILE SATELLITE VENTURES GP INC.
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Secretary
TMI COMMUNICATIONS DELAWARE, LIMITED
PARTNERSHIP
By: 3924505 CANADA INC.,
Its General Partner
By: /s/ Xxxx XxXxxxxxx
----------------------------------
Name: Xxxx XxXxxxxxx
Title: President
TELCOM SATELLITE VENTURES II, INC.
By: /s/ Xxx X. Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
Title: VP and General Counsel
TELCOM SATELLITE VENTURES, INC.
By: /s/ Xxx X. Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
Title: VP and General Counsel
SPECTRUM SPACE EQUITY INVESTORS IV, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV PARALLEL, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV MANAGERS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE EQUITY INVESTORS IV-II, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV PARALLEL II, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPECTRUM SPACE IV MANAGERS II, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (QP) II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (AI) II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE PARTNERS II, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (QP), INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE (AI), INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
COLUMBIA SPACE PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
MOTIENT VENTURES HOLDING INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: EVP and COO
MSV INVESTORS, LLC
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CEO
BY EXECUTING THIS AGREEMENT, XXXX VENTURES VII, LLC HEREBY ACCEPTS THE
OBLIGATIONS OF A LIMITED PARTNER AND ACKNOWLEDGES THAT ITS RIGHTS AS A LIMITED
PARTNER ARE LIMITED AS SET FORTH IN SECTION 5 OF THE SUBSCRIPTION AGREEMENT
DATED NOVEMBER 2, 2001 BETWEEN MOBILE SATELLITE VENTURES LLC AND XXXX VENTURES
VII, LLC AND SECTION 5 THEREOF IS HEREBY INCORPORATED BY REFERENCE INTO THIS
AGREEMENT WITH RESPECT TO XXXX VENTURES VII, LLC, ITS SUCCESSORS AND ASSIGNS:
XXXX VENTURES VII, LLC
By: /s/ Xxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Member