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EXHIBIT 12
LIMITED PARTNERSHIP AGREEMENT
OF
CTR FAMILY ASSOCIATES, L.P.
THE INTERESTS OF THIS PARTNERSHIP HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE TRANSFERRED OR ASSIGNED
IN VIOLATION OF THE PROVISIONS THEREOF.
IN ADDITION, TRANSFERS OF THE INTERESTS OF
THIS PARTNERSHIP ARE RESTRICTED AS PROVIDED
IN THIS AGREEMENT.
Dated as of November 14, 1996
Prepared by:
XXXXX, DAY, XXXXXX & XXXXX
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TABLE OF CONTENTS
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1. DEFINITIONS................................................................................... 1
1.1 "Act"................................................................................ 1
1.2 "Agreement".......................................................................... 1
1.3 "Applicable NACCO Class A Closing Price Average"..................................... 1
1.4 "Arbitrable Dispute"................................................................. 1
1.5 "Authorized Transferee".............................................................. 1
1.6 "Call Notice"........................................................................ 1
1.7 "Call Option"........................................................................ 1
1.8 "Capital Account".................................................................... 2
1.9 "Capital Contributions".............................................................. 2
1.10 "Certificate"........................................................................ 2
1.11 "Charitable Organization"............................................................ 2
1.12 "Code"............................................................................... 2
1.13 "Entity"............................................................................. 2
1.14 "Fair Market Value".................................................................. 2
1.15 "Family Holder"...................................................................... 2
1.16 "Family Group"....................................................................... 3
1.17 "Family Member"...................................................................... 3
1.18 "Final Appraiser".................................................................... 3
1.19 "Final Valuation".................................................................... 3
1.20 "First Appraised Value".............................................................. 3
1.21 "General Partnership Interest"....................................................... 3
1.22 "General Partner(s)"................................................................. 3
1.23 "Independent Appraiser".............................................................. 4
1.24 "Initial Appraiser".................................................................. 4
1.25 "Initial Limited Partners"........................................................... 4
1.26 "Initial Value"...................................................................... 4
1.27 "Limited Partner".................................................................... 4
1.28 "Limited Partnership Interest"....................................................... 4
1.29 "Managing Partner"................................................................... 4
1.30 "NACCO".............................................................................. 4
1.31 "NACCO Class A Shares"............................................................... 4
1.32 "NACCO Class B Shares"............................................................... 4
1.33 "NACCO Stockholders' Agreement"...................................................... 4
1.34 "NACCO Restated Certificate"......................................................... 5
1.35 "Net Operating Cash Flow"............................................................ 5
1.36 "Net Income" or "Net Loss"........................................................... 5
1.37 "Objecting Party".................................................................... 5
1.38 "O.C.G.A."........................................................................... 5
1.39 "Offered Interests".................................................................. 5
1.40 "Option Interests"................................................................... 5
1.41 "Original Holders"................................................................... 5
1.42 "Outside Partner".................................................................... 5
1.43 "Outstanding Remaining Interests".................................................... 5
1.44 "Partner(s)"......................................................................... 6
1.45 "Partner Appraised Value"............................................................ 6
1.46 "Partnership"........................................................................ 6
1.47 "Partnership Interest"............................................................... 6
1.48 "Partnership Percentage"............................................................. 6
1.49 "Person"............................................................................. 7
1.50 "Partnership Property"............................................................... 7
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1.51 "Proportionate Part"................................................................. 8
1.52 "Purchase Price"..................................................................... 8
(a) Initial Value............................................................... 8
(b) Appraised Value............................................................. 8
(c) Mutually Agreed Upon Purchase Price......................................... 8
(d) Cooperation with Appraisers................................................. 9
1.53 "Purchase Right"..................................................................... 9
1.54 "Qualified Fiduciary"................................................................ 9
1.56 "Seller's Notice".................................................................... 9
1.57 "Selling Partner".................................................................... 9
1.58 "Starting Date"...................................................................... 9
1.59 "Transfer"........................................................................... 9
1.60 "Valuation Notice"................................................................... 10
2. FORMATION, NAME, PURPOSES, POWERS AND TERM.................................................... 10
2.1 Formation............................................................................ 10
2.2 Name and Principal Place of Business................................................. 10
2.3 Purposes and Powers.................................................................. 10
2.4 Term................................................................................. 11
2.5 Registered Agent..................................................................... 12
2.6 Required Records..................................................................... 12
3. REPRESENTATIONS AND WARRANTIES................................................................ 12
3.1 Validity of Agreement................................................................ 12
3.2 No Violation of Material Instruments................................................. 12
4. CAPITAL....................................................................................... 13
4.1 Initial Contributions................................................................ 13
4.2 Additional Contributions............................................................. 13
4.3 Capital Accounts..................................................................... 14
4.4 Allocation of Net Income and Net Loss................................................ 14
4.5 Distributions........................................................................ 15
5. MANAGEMENT.................................................................................... 16
5.1 Management of Partnership Business................................................... 16
5.2 Management of Partnership Property Consisting of
NACCO Class B Stock.................................................................. 17
5.3 Election of Managing Partner......................................................... 17
5.4 Compensation of Managing Partner..................................................... 18
5.5 Tax Matters.......................................................................... 18
5.6 Limitation of Liability.............................................................. 19
5.7 Right to Indemnification............................................................. 19
6. BOOKS, AUDITS AND FISCAL MATTERS.............................................................. 20
6.1 Partnership Books.................................................................... 20
6.2 Fiscal Year.......................................................................... 20
7. TRANSFER OF PARTNERSHIP INTERESTS............................................................. 20
7.1 Securities Laws...................................................................... 20
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7.2 Restriction on Transfers............................................................. 21
7.3 Unrestricted Transfers............................................................... 21
7.4 Purchase Right....................................................................... 21
7.5 Call Options to Purchase Partnership Interests....................................... 22
7.6 Allocation of Offered Interests / Option
Interests............................................................................ 23
(a) Allocation to Original Holders of Offered
Interests................................................................... 23
(b) Allocation among Family Groups.............................................. 24
(c) Allocation to the Partnership............................................... 25
(d) Allocation of Partnership Interests among
Family Group Members................................................................. 25
7.7 Terms of Sale........................................................................ 26
7.8 Closing.............................................................................. 27
7.9 Legal Requirements................................................................... 27
8. CODE SECTION 754 ELECTION..................................................................... 27
9. DISSOLUTION................................................................................... 27
9.1 Dissolution and Termination.......................................................... 27
9.2 Continuation of Business............................................................. 28
10. POWER OF ATTORNEY............................................................................. 28
10.1 Grant of Power....................................................................... 28
10.2 Irrevocable Nature................................................................... 29
10.3 Further Assurances - Power of Attorney............................................... 29
10.4 Transfer of Partnership Interests.................................................... 29
11. GENERAL PROVISIONS............................................................................ 29
11.1 Obtaining Partner Approvals of Partnership
Actions.............................................................................. 29
11.2 Arbitration.......................................................................... 30
11.3 Notices.............................................................................. 30
11.4 Waiver of Right to Partition......................................................... 30
11.5 Binding Effect....................................................................... 30
11.6 Headings............................................................................. 30
11.7 Entire Agreement..................................................................... 30
11.8 Governing Law........................................................................ 31
11.9 Counterparts......................................................................... 31
11.10 Pronouns............................................................................. 31
11.11 Remedies Cumulative.................................................................. 31
11.12 Further Assurances................................................................... 31
11.13 Severability......................................................................... 31
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CTR FAMILY ASSOCIATES, L.P.
LIMITED PARTNERSHIP AGREEMENT
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THIS LIMITED PARTNERSHIP AGREEMENT is made and entered into as
of the 14th day of November, 1996, by and among XXXXXX MANAGEMENT, INC., a
Georgia corporation, as General Partner, and the Persons set forth on SCHEDULE
A, as amended from time to time, as Limited Partners. In consideration of the
mutual promises, covenants and agreements set forth herein, the Partners hereby
agree as follows:
1. DEFINITIONS. The following terms used in this Agreement shall, unless
otherwise expressly provided herein or the context indicates otherwise, have
the meanings set forth below.
1.1 "ACT" means the Georgia Revised Uniform Limited Partnership Act as
set forth in Chapter 14-9 of the O.C.G.A., as the same is presently in effect
and may be hereafter amended.
1.2 "AGREEMENT" means this Limited Partnership Agreement, as it may be
amended from time to time.
1.3 "APPLICABLE NACCO CLASS A CLOSING PRICE AVERAGE" shall mean the
average of the closing prices of the NACCO Class A Shares on the New York Stock
Exchange (or on the principal national securities exchange or automated
quotation system of national securities dealers on which the NACCO Class A
Shares may then be traded) on the five trading dates preceding the relevant
Starting Date as reported in The Wall Street Journal (or, if such periodical is
not then published, the most comparable periodical then being published).
1.4 "ARBITRABLE DISPUTE" means any dispute arising in connection with
this Agreement.
1.5 "AUTHORIZED TRANSFEREE" shall mean any Family Member of a Family
Group who (a) is a "Permitted Transferee" under Article FOURTH, Section 4 of the
NACCO Restated Certificate, (b) is a "Participating Stockholder" under Section
1.12 of the NACCO Stockholders Agreement, and (c) has executed and delivered to
the Partnership a counterpart of this Agreement agreeing to be subject to the
restrictions and obligations of a Partner hereunder and to hold all Partnership
Interest then owned or later acquired by such Family Member in accordance with
the terms of this Agreement.
1.6 "CALL NOTICE" shall have the meaning set forth in Section 7.5(a).
1.7 "CALL OPTION" shall have the meaning set forth in Section 7.5.
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1.8 "CAPITAL ACCOUNT" means, with respect to any Partner, the Capital
Account established for such Partner pursuant to Section 4.3.
1.9 "CAPITAL CONTRIBUTIONS" means, for each Partner, the amount of
cash, promissory notes and the value of any property (other than cash), as
determined by agreement of the Partners, by independent appraisal, or as
otherwise provided in this Agreement, contributed from time to time to the
Partnership by a Partner.
1.10 "CERTIFICATE" means the Certificate of Limited Partnership of the
Partnership in substantially the form required by the Act, to be executed
together with this Agreement and filed pursuant to the Act.
1.11 "CHARITABLE ORGANIZATION" means any organization contributions to
which are deductible for federal income, estate or gift tax purposes. A
Charitable Organization shall be an Outside Partner unless prior to the Transfer
of Shares to such Charitable Organization, the Managing Partner has designated
such Charitable Organization as eligible to be considered a Family Member, in
which event a Charitable Organization so designated shall, with respect to the
Partnership Interests transferred to it by any Partner, be considered a Family
Member of and a member of the Family Group of such Partner.
1.12 "CODE" means the Internal Revenue Code of 1986, as amended.
References to specific sections of the Code shall be deemed to include
references to corresponding provisions of any succeeding internal revenue law of
the United States of America.
1.13 "ENTITY" means any general partnership, limited partnership,
corporation, limited liability corporation, joint venture, estate, trust,
business trust or association.
1.14 "FAIR MARKET VALUE" means the price at which the subject
Partnership Interests would change hands between a willing buyer and a willing
seller, neither being under any compulsion to buy or sell and both being
reasonably informed of the relevant factors and in light of the circumstances
and prospects surrounding the business of the Partnership. A determination of
the Fair Market Value of the subject Partnership Interests shall take into
consideration appropriate discounts for lack of marketability and minority
interest related to such Partnership Interests, but will not take into
consideration the affect of any liquidity provided by the provisions of Section
7.4.
1.15 "FAMILY HOLDER" shall mean a Partner who is, and only so long as
such Partner is, an Initial Limited Partner or a Family Member.
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1.16 "FAMILY GROUP" shall mean an Initial Limited Partner and his
Family Members so long as such Initial Limited Partner or any such Family
Members own any Partnership Interests.
1.17 "FAMILY MEMBER" shall mean the spouse or surviving spouse of an
Initial Limited Partner, any descendant of an Initial Limited Partner, a spouse
or surviving spouse of any such descendant, or any Qualified Fiduciary.
Notwithstanding anything to the contrary contained herein:
(a) the surviving spouse of an Initial Limited Partner or of a
descendent of an Initial Limited Partner shall cease to be a Family Member upon
the remarriage of such person to other than an Initial Limited Partner or
descendent of an Initial Limited Partner; and
(b) the spouse of an Initial Limited Partner or of a
descendent of an Initial Limited Partner shall cease to be a Family Member upon
legal separation, divorce or dissolution of such spouse's marriage to said
Initial Limited Partner or descendent; and
(c) a Qualified Fiduciary shall cease to be a Family Member
from and after any event or lapse of time which causes such fiduciary to no
longer qualify as a Qualified Fiduciary as defined in Section 1.54.
1.18 "FINAL APPRAISER" shall have the meaning set forth in Section
1.52(b).
1.19 "FINAL VALUATION" shall have the meaning set forth in Section
1.52(b).
1.20 "FIRST APPRAISED VALUE" shall have the meaning set forth in
Section 1.52(b).
1.21 "GENERAL PARTNERSHIP INTEREST" means any Partnership Interest
which is directly traceable to and is derived from a capital contribution to the
Partnership for an interest in the Partnership as a general Partner. The holder
of a General Partnership Interest shall have all of the rights and obligations
of a General Partner under this Agreement to the extent such Person's
Partnership Interests constitute General Partnership Interests.
1.22 "GENERAL PARTNER(S)" means XXXXXX MANAGEMENT, INC. (to the extent
that it holds a General Partnership Interest), and any successor in interest to
the business and assets of XXXXXX MANAGEMENT, INC., and any additional General
Partners admitted pursuant to the terms of this Agreement and their successors
and assigns as permitted by this Agreement. Any successor or assign of a General
Partner's Partnership Interest who is admitted as a Partner pursuant to this
Agreement shall become a General Partner to the extent of such successor assign
holds General Partnership
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Interests. A Partner may own both Limited Partnership Interests and General
Partnership Interests. A Partner's acquisition of a General Partnership Interest
shall not convert such Partner's Limited Partnership Interests into General
Partnership Interests. A Partner's acquisition of a Limited Partnership Interest
shall not convert such Partner's General Partnership Interests into Limited
Partnership Interests.
1.23 "INDEPENDENT APPRAISER" shall have the meaning set forth in
Section 1.48.
1.24 "INITIAL APPRAISER" shall have the meaning set forth in Section
1.52(b).
1.25 "INITIAL LIMITED PARTNERS" means Xxxxxx X. Xxxxxx, Xx., Xxxxx X.
Xxxxxx, Xxxxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx.
1.26 "INITIAL VALUE" shall have the meaning set forth in Section
1.52(a).
1.27 "LIMITED PARTNER" means any of the Initial Limited Partners, any
additional Limited Partners admitted pursuant to the terms of this Agreement,
and their successors and assigns to the extent they hold Limited Partnership
Interests.
1.28 "LIMITED PARTNERSHIP INTEREST" means any Partnership Interest
which is directly traceable to and is derived from a capital contribution to the
Partnership for an interest in the Partnership as a Limited Partner. The holder
of a Limited Partnership Interest shall have all of the rights and obligations
of a Limited Partner under this Agreement to the extent such Person's
Partnership Interests constitute Limited Partnership Interests.
1.29 "MANAGING PARTNER" means the Person or Persons Elected Managing
Partner pursuant to Section 5.3 hereof, or any Person or Persons substituted
therefor or succeeding thereto.
1.30 "NACCO" means NACCO Industries, Inc., a Delaware corporation.
1.31 "NACCO CLASS A SHARES" means shares of Class A Common Stock, par
value $1.00 per share, of NACCO.
1.32 "NACCO CLASS B SHARES" means shares of Class B Common Stock, par
value $1.00 per share, of NACCO.
1.33 "NACCO STOCKHOLDERS' AGREEMENT" means the Stockholders' Agreement
dated as of March 15, 1990 by and among the Participating Stockholders, NACCO
and Ameritrust Company National Association, a national banking association, as
depository, as amended from time to time.
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1.34 "NACCO RESTATED CERTIFICATE" means the Restated Certificate of
Incorporation of NACCO, as amended from time to time.
1.35 "NET OPERATING CASH FLOW" means the net cash flow to the
Partnership resulting from ownership and operation of the Partnership Property,
plus any other items of income received in cash by the Partnership less (i) all
debts and expenses paid in the operation of the Partnership, (ii) less any
reserves which the Managing Partner deems reasonably necessary for the operation
of the Partnership, and (iii) less all proceeds which are (A) received by the
Partnership from the Transfer of Partnership Property, and (B) used to purchase
other Partnership Property.
1.36 "NET INCOME" or "NET LOSS" means the net income or net loss (as
appropriate) of the Partnership for a particular calendar year or interim period
of less than twelve (12) complete months, as determined in accordance with
accounting principles consistently applied on a cash basis (unless applicable
laws shall require use of the accrual method). Such determination shall include,
without limitation, depreciation, amortization, accelerated cost recovery, and
other deductions or credits against tax allowed by the Code. Net Income or Net
Loss is a financial accounting concept and, to the extent of changes in value
following any in kind Capital Contribution, is also intended to be a tax
accounting concept (to the maximum extent that financial and tax accounting
concepts may overlap). The determination of Net Income or Net Loss shall not
take into account special allocations required by Section 704(c) of the Code
with respect to any in kind Capital Contribution.
1.37 "OBJECTING PARTY" shall have the meaning set forth in Section
1.52(a).
1.38 "O.C.G.A." means the OFFICIAL CODE OF GEORGIA ANNOTATED, as the
same may be amended from time to time.
1.39 "OFFERED INTERESTS" shall have the meaning set forth in Section
7.4(a).
1.40 "OPTION INTERESTS" shall have the meaning set forth in Section
7.5.
1.41 "ORIGINAL HOLDERS" shall have the meaning set forth in Section
7.6(a).
1.42 "OUTSIDE PARTNER" means a Partner, other than Xxxxx X. Xxxxxx, who
is not then a member of a Family Group, including, without limitation, a Partner
who has ceased to be a Family Member pursuant to the terms of Sections 1.17(a)
1.17(b), 1.17(c).
1.43 "OUTSTANDING REMAINING INTERESTS" shall have the meaning set forth
in Section 7.6(b)(iii).
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1.44 "PARTNER(S)" means any General Partners and any Limited Partners.
1.45 "PARTNER APPRAISED VALUE" shall have the meaning set forth in
1.48.
1.46 "PARTNERSHIP" means CTR FAMILY ASSOCIATES, L.P., a limited
partnership organized pursuant to this Agreement under the provisions of the Act
and the laws of the State of Georgia and any successor partnership continuing
the business of CTR FAMILY ASSOCIATES, L.P. pursuant to Section 9.
1.47 "PARTNERSHIP INTEREST" means the percentage ownership share of
each Partner in the capital of the Partnership, whether as a Limited Partner or
as a General Partner, which percentage at any particular time shall be deemed to
equal the percentage which such Partner's Capital Account balance (if positive)
bears to the sum of all positive Capital Account balances of the Partners at
such time. In the event that a Partner's Capital Account balance is zero or is a
negative number, such Partner's Percentage Interest shall be deemed to be zero.
1.48 "PARTNERSHIP PERCENTAGE" means the percentage share of each
Partner in the Net Income or Net Loss of the Partnership. The Partners' initial
Partnership Percentages shall be proportionate to the Partners' initial Capital
Contributions to the Partnership. Thereafter, such Partnership Percentages shall
be adjusted only to reflect a disproportionate Capital Contribution by one or
more Partners or a disproportionate distribution to one or more Partners, with
disproportion being determined in accordance with Sections 4.2 and 4.5. Such
adjustments shall be made (a) by valuing the Partnership Property immediately
before the disproportionate Capital Contribution or distribution, (b) by
allocating the difference between the aggregate value of the Partnership
Property and the total of the Partnership debt among the Partners in proportion
to the Partnership Percentages immediately before the disproportionate Capital
Contribution or distribution, (c) by adding each Partner's Capital Contribution
or subtracting each Partner's distribution at the time of the disproportionate
Capital Contribution or distribution to or from that Partner's allocable share
of the net value of the Partnership Property immediately before the
disproportionate Capital Contribution or distribution, and (d) finally by
expressing each Partner's sum or difference determined under (c), above, as a
percentage of the aggregate sums or differences of all Partners determined under
(c), above. Such values (the "Partnership Valuation") shall be determined by the
Managing Partner based upon such considerations as the Managing Partner, in its
sole discretion, determines to be relevant to such valuation. If a Partner
objects in writing to the Partnership Valuation, such Partner may, at its sole
cost and expense and within fourteen (14) days from the date of such written
objection, engage an appraiser to determine within 30 days of such appointment
the value of the Partnership in
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accordance with the fourth sentence of this Section (the "Partner Appraised
Value"). If the Partner Appraised Value is at least eighty percent (80%) of the
Initial Value and less than or equal to one hundred twenty percent (120%) of the
Initial Value, then the Purchase Price shall be the average of the Partnership
Valuation and the Partner Appraised Value. If the Partner Appraised Value is
less than eighty percent (80%) of the Initial Value or more than one hundred
twenty percent (120%) of the Initial Value, then the Managing Partner and the
Partner(s) objecting to the Partnership Valuation shall, within fourteen (14)
days from the date of the Partner Appraised Value, mutually agree on an
appraiser (the "Independent Appraiser"). The cost of the Independent Appraiser
shall be borne equally by the Partnership and the Partner(s) objecting to the
Partnership Valuation. The Independent Appraiser shall determine within 14 days
after its appointment the Fair Market Value of the Shares, but such Fair Market
Value shall be not less than the smaller of the Partnership Valuation and the
Partner Appraised Value nor greater than the larger of the Partnership Valuation
and the Partner Appraised Value. The valuation of the Independent Appraiser as
so determined shall be binding upon the Partnership and each of the Partners.
The Partnership shall cooperate in assisting the appraisers in conducting the
foregoing appraisals, including providing reasonable access to the books and
records of the Partnership and to such other information as the appraisers
reasonably request in connection with such determinations; PROVIDED, HOWEVER,
that nothing in this Agreement shall require the Partnership to disclose
privileged or proprietary information; and PROVIDED FURTHER, that the
Partnership may require such appraisers to enter into such confidentiality and
non-disclosure agreements as the Managing Partner reasonably believes to be
necessary to protect the interests of the Partnership and its Partners. The
Managing Partner may by a majority vote of its Board of Directors establish a
disproportionate monthly or other periodic draws during the calendar year but
any such disproportionate draws shall not be regarded as disproportionate
distributions if compensating distributions, determined with or without interest
in the discretion of the Managing Partner, are made by the end of March of the
following calendar year so that the periodic draws and compensating
distributions in the aggregate are proportionate. A successor or assign of a
Partner shall succeed to the predecessor Partner's Partnership Percentage, or to
that portion thereof which is assigned or otherwise transferred to that
successor or assign.
1.49 "PERSON" means any individual, estate, trust, corporation,
partnership, limited liability company, joint venture, unincorporated
organization or other entity, association or organization.
1.50 "PARTNERSHIP PROPERTY" means any property, real, personal or
mixed, or any interest therein or appurtenant thereto which may be owned or
acquired by the Partnership.
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1.51 "PROPORTIONATE PART" means, with respect to any Partner or Family
Group, the Partnership Percentage of such Partner or the aggregate Partnership
Percentage of such Family Group.
1.52 "PURCHASE PRICE" shall mean the Fair Market Value of the Offered
Interests or Option Interests, as the case may be, determined as follows:
(a) INITIAL VALUE. The Managing Partner shall from time to
time determine a value for the Partnership Interests (the "Initial Value")
based upon such considerations as the Managing Partner, in its sole discretion,
determines to be relevant to such valuation. If a Selling Partner or Outside
Partner (for purposes of this Section 1.52, the "Objecting Party") does not
provide written objections to Partnership concerning the Initial Value set
forth in the Valuation Notice within 10 days after the date of such Valuation
Notice, the Purchase Price shall be equal to the Initial Value.
(b) APPRAISED VALUE. If an Objecting Party objects in writing
to the Initial Valuation within 10 days after its receipt of the Valuation
Notice, the Objecting Party, within fourteen (14) days from the date of such
written objection, shall engage an appraiser (the "Initial Appraiser") to
determine within 30 days of such appointment the Fair Market Value of the Shares
(the "First Appraised Value"). The cost of the First Appraiser shall be borne by
the Objecting Party. If the First Appraised Value is at least eighty percent
(80%) of the Initial Value and less than or equal to one hundred twenty percent
(120%) of the Initial Value, then the Purchase Price shall be the average of the
Partnership Valuation and the Partner Appraised Value. If the First Appraised
Value is less than eighty percent (80%) of the Initial Value or more than one
hundred twenty percent (120%) of the Initial Value, then the Partnership and the
Objecting Party shall, within fourteen (14) days from the date of the First
Appraised Value, mutually agree on an appraiser (the "Final Appraiser"). The
cost of the Final Appraiser shall be borne equally by the Partnership and the
Objecting Party. The Final Appraiser shall determine within 14 days after its
appointment the Fair Market Value of the Shares (the "Final Valuation"), but
such Final Valuation shall be not less than the smaller of the Initial Value and
the First Appraised Value nor greater than the larger of the Initial Value and
the First Appraised Value. The Purchase Price shall be equal to the Final
Valuation and shall be final and binding upon the parties to this Agreement for
purposes of the subject transaction.
(c) MUTUALLY AGREED UPON PURCHASE PRICE. Notwithstanding the
procedure set forth above, the Partnership and an Objecting Party may, prior to
or at any time during the appraisal process, mutually agree on a single
independent appraiser to determine the Purchase Price, which determination shall
be binding on all of the parties, or may agree in writing upon a Purchase Price.
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(d) COOPERATION WITH APPRAISERS. The Partnership shall
cooperate in assisting the appraisers in determining the Purchase Price,
including providing reasonable access to the books and records of the
Partnership and to such other information as the appraisers reasonably request
in connection with such determination; PROVIDED, HOWEVER, that nothing in this
Agreement shall require the Partnership to disclose privileged or proprietary
information; and PROVIDED FURTHER, that the Partnership may require such
appraisers to enter into such confidentiality and non-disclosure agreements as
the Managing Partner reasonably believes to be necessary to protect the
interests of the Partnership and its Partners.
1.53 "PURCHASE RIGHT" shall have the meaning set forth in Section 7.4.
1.54 "QUALIFIED FIDUCIARY" means (a) the trustee of any trust
(including without limitation a voting trust) if and as long as the trust is
held for the benefit of one or more Authorized Transferees and no other Person,
or (b) the executor, administrator, guardian, personal representative or other
fiduciary of a deceased, incompetent, bankrupt or insolvent Authorized
Transferee; PROVIDED that any such trust must prohibit the transfer of
Partnership Interests to any Persons other than (x) the Person or Persons who
established the trust, and (y) Authorized Transferees of the Person or Persons
who established such trust.
1.55 "REMAINING INTERESTS" shall have the meaning set forth in Section
7.6(b).
1.56 "SELLER'S NOTICE" shall have the meaning set forth in Section
7.4(a).
1.57 "SELLING PARTNER" shall have the meaning set forth in Section 7.4.
1.58 "STARTING DATE" means, with respect to any Seller's Notice or Call
Notice, the date of the final determination of the Purchase Price relating to
such notice.
1.59 "TRANSFER" means any sale, assignment, pledge, hypothecation,
encumbrance, disposition, transfer (including, without limitation, a transfer by
will or intestate distribution), gift or attempt to create or grant a security
interest in Partnership Interests, whether voluntary, involuntary, by operation
of law or otherwise. Notwithstanding anything to the contrary contained in this
Agreement, the occurrence of an event discussed in Sections 1.17, 1.17(b), or
1.17(c), pursuant to which a Family Member ceases to be a Family Member and
is thereafter treated asan Outside Partner, shall not constitute a "Transfer"
for purposes of triggering the exercise of Purchase Rights under Section 7.4 of
this Agreement.
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1.60 "VALUATION NOTICE" shall mean the notice given by the Partnership
pursuant to Sections 7.4(b) or 7.5(a) and stating the Initial Value at which
a Purchase Right or a Call Option is to be exercised.
2. FORMATION, NAME, PURPOSES, POWERS AND TERM
2.1 FORMATION. The Partners hereby enter into and form the Partnership
on and subject to the terms and conditions of this Agreement, as a limited
partnership organized pursuant to the provisions of the Act and the laws of the
State of Georgia. The Partners shall execute and record a Certificate for the
Partnership as contemplated by the Act. Each Partner's Partnership Interest
shall be personal property for all purposes.
All real and other Partnership Property owned by the
Partnership shall be deemed owned by the Partnership as an Entity, and no
Partner, individually, shall have a direct ownership interest in such
Partnership Property.
2.2 NAME AND PRINCIPAL PLACE OF BUSINESS. The Partnership shall do
business under the name "CTR FAMILY ASSOCIATES, L.P." The principal place of
business of the Partnership shall be Xxxxxx Management, Inc., 0000 Xxxxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxx 00000-0000, or such other place as the
General Partners may from time to time determine. The General Partners shall
execute any assumed or fictitious name certificate(s) required by law in
connection with the formation of the Partnership and shall file same in the
appropriate public records.
2.3 PURPOSES AND POWERS.
(a) The character of business and purpose of the Partnership
is to invest, acquire, sell, hold, own, develop, improve, maintain, mortgage,
manage, lease and operate the Partnership Property and to conduct all other
business related or incident thereto. In particular, the Partnership is
initially designed as a vehicle for consolidating the management of the
Partnership Property, providing for the succession of management, and enhancing
total returns from the Partnership Property.
(b) In furtherance of the above-stated purposes and subject to
any restrictions contained in this Agreement (including, but not limited to,
Section 5.1), the Managing Partner, acting on behalf of the Partnership, shall
have the power to:
(i) Enter into a contract for purchase or sale of
any of the Partnership Property.
(ii) Execute all documents or instruments of any
kind appropriate for carrying out the purposes of the
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Partnership, including, without limitation, investment management, management,
purchase, debt, and security agreements.
(iii) Open and maintain one or more depository
accounts, including money market accounts and margin accounts, in the name of
the Partnership.
(iv) Employ such personnel and obtain such management
services and/or such investment management, legal, accounting, and other
professional services and advice as the Partners deem advisable in the course of
the Partnership's operations under this Agreement, including the services of any
party who, directly or beneficially, is a Partner or a spouse or descendant of a
Partner, and pay reasonable fees for such services.
(v) Pay all real estate and ad valorem taxes and
other governmental charges levied or assessed against the Partnership Property,
and all other taxes (other than income taxes of the Partners except to the
extent that the Partnership may be obligated to withhold therefor) directly
relating to the Partnership's operations under this Agreement.
(vi) Borrow money from banks and other lending
institutions or from other third parties or from any of the Partners for
Partnership purposes and pledge or otherwise grant security interests in the
Partnership Property for the repayment of such loans.
(vii) Take any of the Partnership Property subject to
a loan or assume a loan secured by any of the Partnership Property irrespective
of whether such outstanding loan is from a lending institution or other third
party or from one or more of the Partners.
(viii) Perform any and all other acts or activities
customary, incidental, necessary or convenient to the purposes and powers
enumerated herein.
(c) Nothing in this Agreement shall, or shall be deemed to,
restrict in any way the freedom of any Partner (directly or through an
affiliate) to conduct any other business or activity whatsoever (including,
without limitation, the acquisition, development, leasing, sale, operation and
management of other real property), without any accountability to the
Partnership or any other Partner, even if such business or activity competes
with the business of the Partnership, it being understood by each Partner that
the other Partners or affiliates thereof may be interested, directly or
indirectly, in various other businesses and undertakings not included in the
Partnership.
2.4 TERM. The term of the Partnership shall commence as of the date of
this Agreement and shall continue until the date
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which is thirty (30) years from the date hereof, unless extended by amendment to
this Agreement or sooner terminated as herein provided.
2.5 REGISTERED AGENT. The name of the Partnership's initial agent for
service of process on the Partnership in the State of Georgia shall be
Corporation Service Company, and the address of the initial registered office
and the initial registered agent shall be 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxxxx 00000. As required by the Act, the Partnership shall at all
times maintain in the State of Georgia an office and an agent for service of
process selected by the General Partners in accordance with any relevant
provisions of the Act.
2.6 REQUIRED RECORDS. The Partnership shall keep and maintain or make
available at the principal office and place of business of the Partnership, as
set forth in Section 2.2, those records required to be maintained or made
available at such principal place of business pursuant to Section 105 of the
Act, O.C.G.A. Sec. 14-9-105, or otherwise by this Agreement, and shall make
them available to the persons and as provided in Section 105 of the Act,
O.C.G.A. Sec. 14-9-105.
3. REPRESENTATIONS AND WARRANTIES. Each Partner, in order to induce the
other Partners to enter into this Agreement, hereby represents and warrants to
the other Partners that:
3.1 VALIDITY OF AGREEMENT. This Agreement, and each and every other
agreement, document and instrument provided for herein and to which such Partner
is or shall be a party, when executed and delivered, shall constitute the valid
and binding obligation of such Partner, enforceable against such Partner in
accordance with its terms, except as enforceability may be limited by (a)
bankruptcy or similar laws from time to time in effect affecting the enforcement
of creditors' rights generally or (b) the availability of equitable remedies
generally.
3.2 NO VIOLATION OF MATERIAL INSTRUMENTS. The execution and delivery of
this Agreement by such Partner does not, and the consummation of the
transactions contemplated hereby shall not:
(a) violate or constitute an occurrence of default (which
violation or default either singularly or in the aggregate would be considered
material) under any provision of, or conflict with, or result in acceleration of
any obligation under, or give rise to a right by any party to terminate its
obligations under any material agreement, instrument, order, judgment, decree or
other arrangement to which such Partner is a party or by which he is bound or
his assets affected; or
(b) require any consent, approval, filing or notice under any
provision of law, or violate any judgment, ruling, order, writ, injunction,
decree, statute, rule or regulation applicable to such Partner.
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4. CAPITAL
4.1 INITIAL CONTRIBUTIONS. As of the date hereof, the Partners have
contributed various properties to the Partnership as their respective initial
Capital Contributions. The initial Partnership Interests and Partnership
Percentages shall be proportional to the fair market values of the Partners'
respective Capital Contributions, without regard to whether such Capital
Contributions are for an interest as a General Partner, Limited Partner, or
both. The properties initially contributed to the Partnership by the respective
Partners, the fair market values of such Capital Contributions, as mutually
agreed upon by the Partners, and the specification of the extent to which such
Capital Contributions are for an interest as a General Partner or a Limited
Partner are set forth in SCHEDULE A attached hereto. The Partners acknowledge
that they, their advisers, or both are familiar with the properties contributed
to the Partnership, have considerable knowledge and experience regarding the
valuation of those properties and similar properties, and have in good faith
determined the fair market values of such properties, as set forth in SCHEDULE
A.
4.2 ADDITIONAL CONTRIBUTIONS. In addition to the Capital Contributions
made by the Partners pursuant to Section 4.1 hereof, and subject to the
limitations on any requirement that a Partner make additional Capital
Contributions (as hereinafter provided in the second paragraph of this Section
4.2), the Partners may, from time to time, make such additional Capital
Contributions as may be necessary or desirable in the discretion of the
Managing Partner; provided, however, that any property contributed to the
Partnership under this Section 4.2 shall be transferred subject to any and all
existing liabilities encumbering such contributed property, and the Partnership
shall take and hold the contributed property subject to such existing
liabilities but shall not assume such liabilities unless Partners owning more
than fifty percent (50%) of the Partnership Interests consent in writing to any
such assumption. In the event the net values of the additional Capital
Contributions shall be disproportionate to the Partners' Partnership Percentages
immediately before the additional Capital Contributions, then the Partnership
Percentages shall be adjusted as provided in Section to reflect the
disproportionate additional Capital Contributions.
Under no circumstances shall a Limited Partner be personally
liable for any of the debts or obligations of the Partnership by reason of such
Person's status as a Limited Partner. No Limited Partner shall be required, by
reason of such Person's status as a Limited Partner, to contribute any capital
to the Partnership except as provided in Section 4.1.
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4.3 CAPITAL ACCOUNTS.
(a) An individual Capital Account shall be established and
maintained for each Partner in accordance with the requirements of the Code and
any regulations thereunder, and shall be credited with the Capital
Contributions(s) of such Partner and that portion of Net Income allocable to
such Partner, and shall be debited with that portion of any Net Loss allocable
to such Partner and all distributions made by the Partnership to such Partner.
If the Partner is both a General Partner and a Limited Partner, subaccounts
shall be maintained to reflect the Person's interest as a General Partner and as
a Limited Partner.
(b) No interest shall be payable to any Partner on any
positive balance in such Partner's Capital Account.
(c) No Partner shall have the right to withdraw from his
Capital Account or to otherwise receive any Partnership funds or Partnership
Property except as provided by this Agreement. Each Partner expressly waives any
right to partition the Partnership Property which he or she may otherwise have,
as provided in Section 11.4.
(d) A Partner shall be required to eliminate in any fashion
approved in good faith by the Managing Partner any deficit balance which may
arise in that Partner's Capital Account, at the time the Partnership is
dissolved or at any other time, provided, however, that no Limited Partner shall
be required, by reason of such Person's status as a Limited Partner, to
contribute any capital to the Partnership except as provided in Section 4.1. If
a Limited Partner unexpectedly receives an adjustment, allocation or
distribution described in (4), (5) or (6) of Section 1.704-1(b)(2)(ii)(d) of
the regulations issued under Section 704(b) of the Code (or any successor there
to), gross income of the Partnership or gain from a sale of assets shall be all
ocated to such Limited Partner or Limited Partners in an amount sufficient to
eliminate any deficit balance in such Limited Partner's capital account caused
by such adjustment, allocation or distribution as quickly as possible to the
extent such deficit balance exceeds the amount such Limited Partner is deemed
obligated to restore to the Partnership pursuant to the Section 704(b)
regulations. It is the intent of the Partners that any allocation pursuant to
this Section 4.3 constitutes a "qualified income offset" under Treasury
regulation section 1.704-1(b)(2)(ii)(d).
4.4 ALLOCATION OF NET INCOME AND NET LOSS. Net Income or Net Loss of
the Partnership shall be determined as of the end of each calendar year and as
of the end of any interim period extending through the day immediately preceding
any disproportionate Capital Contribution or distribution or succession or
assignment. If a calendar year includes an interim period, the determination of
Net Income or Net Loss for the period extending through the last day of the
calendar year shall
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include only that period of less than twelve (12) months occurring from the day
immediately following the last day of the latest interim period during the
calendar year and extending through the last day of the calendar year. For all
purposes, including income tax purposes, Net Income, if any, of the Partnership
for each calendar year or interim period shall be allocated among the Partners
in proportion to their Partnership Percentages for the calendar year or interim
period. In the event of a Net Loss for a particular calendar year or interim
period, then, for such calendar year or interim period, the Net Loss for such
calendar year or interim period shall be allocated among the Partners in
proportion to their respective Partnership Percentages for the calendar year or
interim period.
4.5 DISTRIBUTIONS.
(a) The Managing Partner shall distribute annually among the
Partners an amount equal to the greater of (i) Net Operating Cash Flow of
Partnership, or (ii) an amount corresponding to the income tax liabilities of
the Partners resulting from the allocation of Net Income (as shall be determined
in good faith by the Managing Partner by assuming that all Partners are in the
highest marginal federal income tax bracket and by using the income tax rates
for the state of residence of the Partner with the highest state income tax
rates). The Managing Partner shall make such distributions from time to time
during each year as it determines, provided that the Managing Partner shall
distribute quarterly at least fifteen days in advance of the dates on which
estimated tax payments are due at least an amount corresponding to the income
tax liabilities of the Partners resulting from the allocation of Net Income (as
determined as provided in the preceding sentence).
(b) All distributions shall be made in proportion to the
Partners' Partnership Percentages except (i) when the Managing Partner by
majority vote of its Board of Directors approves the disproportionate
distribution, or (ii) with respect to any payment of NACCO Class A Shares or
NACCO Class B Shares by the Partnership pursuant to Section 7.7(a). The
Partners are encouraged to consider disproportionate distributions to defray
the income tax liabilities resulting from special allocations under Section 704
(c) of the Code, but such disproportionate distributions shall not be required.
Subject to Section 4.5(a), the Managing Partner is expressly authorized to make
monthly or other periodic draws with respect to one or more, but not
necessarily all, of the Partners, on the condition that compensating
distributions, determined with or without interest in the discretion of the
Managing Partner, shall be made to the other Partners on or before the end of
March of the following calendar year so that the total draws and compensating
distributions shall be proportionate. For all purposes of this Agreement,
except as provided in the immediately preceding sentence, a distribution among
the Partners which is not in proportion to Partnership Percentages shall be
regarded as
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disproportionate. In the event that a disproportionate distribution occurs, the
Managing Partner shall appropriately adjust the Capital Accounts of the Partners
to reflect such disproportionate distribution. This adjustment of Capital
Accounts, and thus Partnership Interests, shall be in addition to the adjustment
in Partnership Percentages.
4.6 NO RIGHT TO RETURN OF CAPITAL. Except as otherwise expressly
provided in this Agreement, the Partners shall not have the right to demand the
return of all or any portion of their respective Capital Contributions or to
demand or receive property other than cash in return for their respective
Capital Contributions.
5. MANAGEMENT.
5.1 MANAGEMENT OF PARTNERSHIP BUSINESS. The Managing Partner shall be
responsible for managing and conducting the ordinary and usual business and
affairs of the Partnership, and by the vote of a majority of the Board of
Directors of the Managing Partner shall make all management decisions on behalf
of the Partnership, including, without limitation (except as expressly provided
elsewhere in this Agreement):
(a) the voting of any stock, partnership interest, or interest
in a limited liability company with respect to which the Partnership owns more
than five percent (5%) of the total voting power;
(b) the borrowing of any funds for or by the Partnership in
excess of $200,000 (whether secured or unsecured), the collateralization of any
such borrowing with any Partnership Property, or the prepayment of any such
borrowing;
(c) the approval of Partnership budgets;
(d) the approval of any contracts between the Partnership and
any Partner or any shareholder, beneficiary, spouse, descendant, or spouse or
descendant of a shareholder or beneficiary of one of the Partners;
(e) the retention or termination of an investment manager;
(f) except as provided in Section 7.2 or elsewhere in this
Agreement, the admission of new Partners to the Partnership; and
(g) the exercise by the Partnership of the Call Option
pursuant to Section 7.5.
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5.2 MANAGEMENT OF PARTNERSHIP PROPERTY CONSISTING OF NACCO CLASS B
STOCK.
(a) The Managing Partner by the approval of a majority of its
Board of Directors shall direct the voting of the NACCO Class B Stock and may
authorize the Partnership to enter into a voting arrangement with respect to any
or all of the NACCO Class B Common Stock.
(b) The Partnership will not Transfer any shares of NACCO
Class B Stock without the consent of a majority of the Board of Directors of the
Managing Partner and the consent of Partners owning more than 75% of all
Partnership Interests.
5.3 ELECTION OF MANAGING PARTNER. XXXXXX MANAGEMENT, INC. is hereby
designated as the initial Managing Partner. If XXXXXX MANAGEMENT, INC. or any
successor ceases to serve as a Managing Partner, such General Partner(s) or
officer(s) of a General Partner selected by Partners owning not less than ninety
percent (90%) of the Partnership Interests shall serve as successor Managing
Partner or Co-Managing Partners (referred to herein collectively in the singular
as "Managing Partner" unless the context indicates to the contrary). Such
General Partner(s) or officer(s) of a General Partner who are thus selected as
Managing Partner or Co-Managing Partners may expressly be one or more
Co-Managing Partners who continue to serve after another Co-Managing Partner
ceases to serve.
If an individual Managing Partner or Co-Managing Partner is
determined by his or her principal attending physician to be incapable of
handling his or her duties as Managing Partner or Co-Managing Partner, such
incapacitated Managing Partner or Co-Managing Partner shall be deemed to have
resigned for the period of his or her incapacity, but such individual shall be
restored as Managing Partner or Co-Managing Partner in lieu of his or her
successor (or that Person's successor), if any, in the event his or her
principal attending physician later determines that the incapacitated Managing
Partner or Co-Managing Partner has recovered sufficiently to resume the duties
of Managing Partner or Co-Managing Partner. Any determination by the Managing
Partner's or Co-Managing Partner's principal attending physician shall be
conclusive, and the principal attending physician shall be held harmless by the
Partnership from any liability resulting from any good faith determination of
incapacity or recovery. Any determination hereunder by the principal attending
physician shall be in recordable form.
Any Managing Partner or Co-Managing Partner may be removed and
replaced only by and with the consent of Partners owning not less than ninety
percent (90%) of all Partnership Interests.
So long as more than one Managing Partner shall be serving,
the vote of a majority of those then serving shall
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control. The Managing Partner or any Co-Managing Partner may sign on behalf of
the Partnership, and any third party may conclusively rely upon the signature of
the Managing Partner or any Co-Managing Partner as being binding upon the
Partnership. Any person dealing in good faith with the Partnership may
conclusively rely upon any writing signed by one or more Persons certifying (a)
that such Person or Persons are the Managing Partner, a Co-Managing Partner, or
the Co-Managing Partners then serving and (b) that such Person or Persons are
acting in accordance with the terms of this Agreement. The Co-Managing Partner
working regularly in the Partnership's principal place of business shall be
responsible for informing any other Co-Managing Partner(s) of any matters
requiring the Managing Partner's approval, and the Managing Partner shall keep
the other Partners informed on a timely basis as to all significant matters of
concern to the Partnership.
5.4 COMPENSATION OF MANAGING PARTNER. The Managing Partner or
Co-Managing Partners shall not be entitled to any compensation for performance
of duties under this Agreement as Managing Partner or Co-Managing Partners. The
Partnership shall reimburse the Managing Partner or any Co-Managing Partner at
cost for reasonable out-of-pocket expenses incurred in the performance of duties
under this Agreement.
5.5 TAX MATTERS. The Managing Partner (or one of the Co-Managing
Partners selected by vote of the Co-Managing Partners then serving in
accordance with Section 5.3 if more than one Managing Partner shall then
be serving) is hereby appointed the Partnership's "tax matters partner," as
that term is defined in Section 6231(a)(7) of the Code, and shall receive
notice of the commencement of any administrative proceeding at the Partnership
level with respect to any Partnership item or items, and shall receive notice
of any final Partnership administrative adjustment resulting from any such
proceeding, in each case within the meaning of Sections 6223 and 6231 of the
Code. The Partnership's tax matters partner shall supply such information to
the Internal Revenue Service as may be necessary to enable the Internal Revenue
Service to provide the Partners with such notices as are required under the
Code. The Partnership's tax matters partner shall also keep each Partner
informed of any administrative or judicial proceeding relative to any
adjustment or proposed adjustment at the Partnership level of Partnership
items. Without the prior written approval of Partners owning more than fifty
percent (50%) of the Partnership Interests, the tax matters partner shall not
(a) enter into any settlement agreement with the Internal Revenue Service which
purports to bind persons other than the tax matters partner, (b) file a
petition as contemplated by Sections 6226(a) or 6228 of the Code, (c) intervene
in any action as contemplated by Section 6226(b) of the Code, (d) file any
request as contemplated by Section 6227(b) of the Code, or (e) enter into an
agreement extending the period of limitation as contemplated by Section
6229(b)(1)(B) of the Code.
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5.6 LIMITATION OF LIABILITY. No Partner, direct or indirect shareholder
of a Partner, or director, officer, or employee of the Partnership or a Partner
shall be liable to the Partnership or any of its Partners for any loss, damage,
liability or expense suffered by the Partnership or its Partners on account of
any action taken or omitted to be taken by such Person on behalf of, or at the
request of, the Partnership, or in connection with the organization of the
Partnership, provided such Person discharges such Person's duties in good faith,
exercising the same degree of care and skill that a prudent person would have
exercised under the circumstances in the conduct of such prudent person's own
affairs, and in a manner such Person reasonably believes to be in the best
interest of the Partnership. A Person's liability hereunder shall be limited
only for those actions taken or omitted to be taken by such Person in connection
with the organization of the Partnership or the management of the business and
affairs of the Partnership. The provisions of this Section are not intended to
limit the liability of any person in any other connection, including, but not
limited to, any obligations of such Person undertaken in this Partnership
Agreement or any contract with the Partnership.
5.7 RIGHT TO INDEMNIFICATION. The Partnership shall indemnify each
Person who has been or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or appellate (regardless of whether such
action, suit or proceeding is by or in the right of the Partnership or by third
parties), by reason of the fact that such Person is or was a Partner, direct or
indirect shareholder of a Partner, director, officer, or employee of the
Partnership or a Partner, or organizer of the Partnership, against all
liabilities and expenses, including, without limitation, judgments, amounts paid
in settlement, attorneys' fees, ERISA excise taxes or penalties, fines and other
expenses, actually and reasonably incurred by such Person in connection with
such action, suit or proceeding (including, without limitation, the
investigation, defense, settlement or appeal of such action, suit or
proceeding); provided, however, that the Partnership shall not be required to
indemnify or advance expenses to any person from or on account of such Person's
conduct that is finally adjudged to have been knowingly fraudulent, deliberately
dishonest, grossly negligent, or willful misconduct; provided, further, that the
Partnership shall not be required to indemnify or advance expenses to any Person
in connection with an action, suit or proceeding initiated by such Person unless
the initiation of such action, suit or proceeding was authorized in advance by
the Partnership; and provided, finally, that a Person shall be indemnified
hereunder only for those actions taken or omitted to be taken by such Person in
connection with the discharge of such Person's obligations for the organization
of the Partnership or the management of the business and affairs of the
Partnership and that the provisions of this Section 5.7 are not intended to
extend indemnification to any Partner or other Person for any
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obligations of such Partner or other Person undertaken in this Partnership
Agreement. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or under a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that such Person's conduct was
finally adjudged to have been knowingly fraudulent, deliberately dishonest,
grossly negligent, or willful misconduct.
6. BOOKS, AUDITS AND FISCAL MATTERS.
6.1 PARTNERSHIP BOOKS. The Managing Partner shall maintain full and
complete books and records for the Partnership at its principal office, and each
Partner and his, her, or its designated representatives shall at all times have
reasonable access to, and may inspect and copy any of, such books and records.
6.2 FISCAL YEAR. The fiscal year of the Partnership shall be the
calendar year.
7. TRANSFER OF PARTNERSHIP INTERESTS.
7.1 SECURITIES LAWS. Each Partner acknowledges that its Partnership
Interest was offered and is being sold in reliance upon the representation,
hereby affirmed, that such Partnership Interest is being purchased for
investment for such Partner's own account or in his or its fiduciary capacity
for a fiduciary account, as appropriate, and not with a view to, or for resale
in connection with, the distribution of such Partnership Interest or any
interest therein. Each Partner also acknowledges that such Partner's Partnership
Interest has not been registered under the Securities Act of 1933 or any state
securities laws. Notwithstanding any other provision in this Agreement, but
subject to express written waiver by the Managing Partner in the exercise of its
reasonable judgment, no portion of or interest in any Partnership Interest may
be offered for sale or be the subject of a Transfer without the registration of
the Partnership Interest under the Securities Act and applicable state
securities laws, unless the Partnership shall have received such assurances
satisfactory to the Managing Partner that such Transfer does not violate the
Securities Act, any state securities laws or any other law applicable to the
Partnership, including, without limitation, such legal opinions which it in its
good faith and reasonable discretion deems appropriate in light of the facts and
circumstances relating to such proposed Transfer, together with such
representations, warranties and indemnifications from the transferor and the
transferee as the Managing Partner in its good faith and reasonable discretion
deems appropriate to confirm the accuracy of the facts and circumstances that
are the basis for any such opinion or other assurances and to protect the
Partnership and the other Partners from any liability resulting from any such
Transfer. Such opinions, representations, warranties and indemnities may
include, without limitation, assurance that the transaction is exempt from any
registration or
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qualification provisions arising under applicable Federal and state securities
laws and would not require the registration or qualification of the Partnership
Interest under any such laws.
7.2 RESTRICTION ON TRANSFERS. Except as otherwise provided in this
Agreement, no Partner shall, either during the Partner's lifetime or upon the
Partner's death, Transfer any of the Partnership Interests now owned or
hereafter acquired by such Partner. Moreover, no Partner shall Transfer or
attempt to Transfer any Partnership Interest if such Transfer or attempted
Transfer is contrary to the provisions of the NACCO Restated Certificate or the
NACCO Stockholders' Agreement. In the event of any purported or attempted
Transfer of Partnership Interests that does not comply with this Agreement, the
purported transferee or successor by operation of law shall not be deemed to be
a Partner of the Partnership for any purpose and shall not be entitled to any of
the rights of a Partner of the Partnership, including, without limitation, the
right to vote the Partnership Interests or to receive a certificate for
Partnership Interests or any distributions of any kind on or with respect to
Partnership Interests. Any purported or attempted transfer of Partnership
Interests made other than in accordance with the provisions of this Agreement
shall be void AB INITIO and the last holder of record who acquired such
Partnership Interests in a manner not contrary to the provisions of this
Agreement shall be recognized as the holder of such Partnership Interests for
all purposes and the Partnership Interests shall continue to be treated as
Partnership Interests for all purposes under this Agreement, shall be deemed
owned by such recognized holder for purposes of the operation of this Agreement
and shall continue to be subject to the terms of this Agreement.
7.3 UNRESTRICTED TRANSFERS. Notwithstanding anything to the contrary
contained herein, each Partner or Authorized Transferee of such Partner shall be
entitled to Transfer all or any portion of his, her or its Partnership Interests
to any Authorized Transferee of such Partner, provided that such Partner has
first obtained the written consent of the Managing Partner, which consent may be
withheld for any reason or for no reason at all, without need to comply with the
other provisions of this Agreement.
7.4 PURCHASE RIGHT. At any time after the date hereof, the Partnership
and the Family Groups shall have a right of first refusal (the "Purchase Right")
to purchase, pursuant to the terms of this Section 7.4, from any Partner (for
purposes of this Section 7.4, a "Selling Partner") intending to Transfer, other
than as permitted in Section 7.3 of this Agreement, all or any portion of his,
her or its Partnership Interests (including any Partnership Interests acquired
after the date hereof).
(a) A Selling Partner intending to Transfer all or any portion
of his, her or its Partnership Interests shall first deliver to the Partnership
a written notice (the "Seller's
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Notice") specifying (i) the Partnership Interests to be transferred (the
"Offered Interests"); and (ii) the identity of the proposed transferee.
(b) Within 10 days after the Partnership's receipt of the
Seller's Notice, the Managing Partner shall deliver to the Selling Partner a
Valuation Notice setting forth the Initial Value and the Managing Partner and
the Selling Partner shall commence the process to determine the Purchase Price
pursuant to Section of this Agreement.
(c) Within 10 days after Starting Date, the Partnership shall
notify each Family Holder (other than the Selling Partner) of (i) the Starting
Date; (ii) the number of Offered Interests; and (iii) the Purchase Price. The
Partnership's notice shall include a copy of the Seller's Notice.
(d) Within 40 days after the Starting Date, each Partner shall
notify the Partnership of how many, if any, of the Offered Interests he or she
elects to purchase.
(e) Within 50 days after the Starting Date, the Partnership
shall provide written notice to the Selling Partner and to each other Partner of
(i) the number of Offered Share to be purchased by Family Holders and the
allocation of the Offered Interests among the Family Holders pursuant to the
terms of Section 7.6 of this Agreement; (ii) the number of Offered Interests to
be purchased by the Partnership; and (iii) the time, date and place of Closing
which shall be no sooner than 90 days after the Starting Date and no later than
120 days after the Starting Date.
7.5 CALL OPTIONS TO PURCHASE PARTNERSHIP INTERESTS. At any time after
the date hereof, the Partnership and the Family Groups shall have the option
(the "Call Option") to purchase from any Partner who is then an Outside Partner
all, but not less than all, of the Partnership Interests (the "Option
Interests") directly or indirectly owned by such Outside Partner, and upon the
exercise of a Call Option such Outside Partner shall be obligated to sell to the
purchasing Partners or the Partnership, as the case may be, all (but not less
than all) of his, her or its Option Interests. The Call Option shall be
exercised as follows:
(a) Within thirty (30) days after the determination by the
Partnership to exercise a Call Option with respect to an Outside Partner, the
Partnership shall provide written notice (the "Call Notice") of such exercise to
the Selling Outside Partner of (i) the exercise of the Option; (ii) the number
of Option Interests; and (iii) the Initial Appraised Value of the Option
Interests. Thereafter, the Partnership and the Outside Partner shall determine
the Purchase Price in accordance with Section 1.52.
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(b) Within ten (10) days after the Starting Date, the
Partnership shall provide notice of such exercise to each Family Holder of (i)
the exercise of the exercise of the Option; (ii) the number of Option Interests;
(iii) the Purchase Price of the Option Interests; and (iv) the Starting Date.
(c) Within 40 days after the Starting Date, each Family Holder
shall notify the Partnership of how many, if any, of the Option Interests he,
she or it elects to purchase.
(d) Within 50 days after the Starting Date, the Partnership
shall provide written notice to the selling Outside Partner and to each Family
Holder of (i) the allocation of the Option Interests among the Family Holders
pursuant to the terms of Section 7.6 of this Agreement; (ii) the number of
Option Interests to be purchased by the Partnership; and (iii) the time, date
and place of Closing which shall be no sooner than 90 days after the Starting
Date and no later than 120 days after the Starting Date.
(e) If the Partnership and the Family Holders do not together
elect to purchase all of the Option Interests then the Outside Partner shall not
be obligated to sell any of the Option Interests; PROVIDED, HOWEVER, that the
Partnership and the Family Holders shall continue to have the right to exercise
a Call Option with respect to such Option Interests at anytime thereafter.
(f) The Option Interests shall be allocated among the
Partnership and the Family Groups, and within each Family Group among its
members, in the manner provided in Section 7.6.
7.6 ALLOCATION OF OFFERED INTERESTS / OPTION INTERESTS. Offered
Interests and Option Interests shall be allocated among the Partnership and the
Family Holders pursuant to the terms of this Section 7.6. At the Closing, the
Partnership and such Family Holders, as the case may be, shall be obligated to
purchase the Offered Interests or Option Interests so allocated pursuant to the
terms and provisions of this Agreement. Notwithstanding anything to the contrary
contained herein, no Partner shall be entitled to receive, or be obligated to
purchase, more Partnership Interests than such Partner has elected to purchase
pursuant to Section 7.4(d)or 7.5(c), as the case may be. All Offered Interests
or Option Interests shall be allocated as follows:
(a) ALLOCATION TO ORIGINAL HOLDERS OF OFFERED INTERESTS. Any
Offered Interests or Options Interests shall first be allocated to members of
the Family Group (the "Original Holders") (i) in which the Selling Partner is
the Initial Limited Partner or a Family Member, or (ii) if the Selling Partner
is an Outside Partner, from which the Selling Partner, or his, her or its
predecessors in interest, acquired such Offered Interests or Option Interests,
to the extent such Original Holders have
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elected to purchase the Offered Interests or Option Interests. Such Partnership
Interests shall be allocated in accordance with Section 7.6(d).
(b) ALLOCATION AMONG FAMILY GROUPS. Any Offered Interests or Option
Interests not allocated pursuant to Section (the "Remaining Interests") shall be
allocated among the Family Groups (other than the Original Holders) which have
Partners electing to purchase Offered Interests or Option Interests as follows:
(i) If a Family Group has collectively elected to purchase a
number of Offered Interests or Option Interests which is
less than or equal to its Proportionate Part of the
Remaining Interests, then such Family Group shall be
allocated the number of Partnership Interests that its
members have elected to purchase.
(ii) If a Family Group has collectively elected to purchase a
number of Offered Interests or Option Interests which is
greater than its Proportionate Part of the Remaining
Interests, then such Family Group shall, in the first
instance, be allocated its Proportionate Part of the
Remaining Interests.
(iii) If additional Remaining Interests remain
to be allocated after the application of
subsections (i) and (ii) above (the
"Outstanding Remaining Interests"), then
each Family Group which has collectively
elected to purchase a number of Offered
Interests or Option Interests which
exceeds its Proportionate Part shall be
allocated an additional number of the
Remaining Interests equal to the lesser
of:
(A) The number of Offered Interests or Option
Interests which such Family Group elected to
purchase but which were not allocated to it by
reason of subsection (ii) above, or
(B) That portion of the Outstanding Remaining
Interests represented by a fraction the numerator
of which is the number of Partnership Interests
held by such Family Group (prior to such
allocation), and the denominator of
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which is the number of Partnership Interests held
by all Family Groups which have elected to
purchase a number of Offered Interests or Option
Interests in excess of the number of those Offered
Interests or Option Interests previously allocated
to them under this Section 7.6.
(iv) Any Partnership Interests remaining to be allocated after
the application of subsections (i), (ii) and (iii) above,
shall be allocated in accordance with the procedures
described in subsection (iii) above until either (A) all of
the Offered Interests or Option Interests which Family
Holders, as the case may be, have elected to purchase have
been allocated, or (B) there remains only one Family Group
which has not been allocated all of the Partnership
Interests it has elected to purchase, in which event all of
the then unallocated Offered Interests or Option Interests
shall be allocated to such Family Group up to the amount
that such Family Group elected to purchase.
(c) ALLOCATION TO THE PARTNERSHIP. The Partnership shall purchase any
Offered Interests not allocated to a Family Group. The Corporation may, but
shall not be obligated to, purchase any Option Interests not allocated to a
Family Group.
(d) ALLOCATION OF PARTNERSHIP INTERESTS AMONG FAMILY GROUP MEMBERS.
Offered Interests or Option Interests allocated to a Family Group pursuant to
Sections 7.6(a) or 7.6(b) shall be allocated among the Family Holders of such
Family Group, as follows:
(i) First, to the Initial Limited Partner of such Family Group
in an amount equal to the number of Offered Interests or
Option Interests such Initial Limited Partner elects to
Purchase; and
(ii) Second, to each Partner of such Family Group, other than the
Initial Limited Partner, electing to purchase Offered
Interests or Option Interests in an amount determined by
multiplying (A) the number of Partnership Interests
allocated to such Family Group and not purchased by the
Initial Limited Partner, by (B) a fraction, the numerator of
which is the number of Partnership Interests subscribed for
by such Partner, and the
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denominator of which is the aggregate number of Partnership
Interests subscribed for by all Partners of a Family Group,
other than the Initial Limited Partner.
7.7 TERMS OF SALE. The Purchase Price for all Partnership Interests
purchased pursuant to Section 7.4 or Section 7.5 of this Agreement shall be
paid at the Closing, as follows:
(a) If the purchaser is the Partnership, the Partnership, at
its election, may pay its portion of the Purchase Price in NACCO Class B Shares,
NACCO Class A Shares, immediately available United States Funds, or any
combination of such consideration as follows:
(i) to the extent that the Partnership elects to pay the
Purchase Price be paid in NACCO Class B Shares, the
Partnership shall pay to the Selling Partner, such number of
NACCO Class B Shares as shall be equal to the quotient of
(A) the portion of the Purchase Price payable in NACCO Class
B Shares, divided by (B) the Applicable NACCO Class A
Closing Price Average; and
(ii) to the extent that the Partnership elects to pay the
Purchase Price be paid in NACCO Class A Shares, the
Partnership shall convert NACCO Class B Shares to NACCO
Class A Shares and pay to the Selling Partner such number of
NACCO Class A Shares as shall be equal to the quotient of
(A) the portion of the Purchase Price payable in NACCO Class
A Shares, divided by (B) the Applicable NACCO Class A
Closing Price Average; and
(iii) immediately available United States Funds equal to that
portion of the Purchase Price not payable in NACCO Class B
Shares or NACCO Class A Shares.
(b) If the purchaser is a Partner, such Partner may pay its portion
of the Purchase Price in NACCO Class A Shares, immediately available United
States Funds, or any combination of such consideration as follows:
(i) to the extent that the Partner elects to pay the Purchase
Price in NACCO Class A Shares, such Partner shall pay to the
Selling Partner such number of NACCO Class A Shares as shall
be equal to the quotient of (A) the portion of the Purchase
Price payable in NACCO Class A Shares, divided by (B) the
Applicable NACCO Class A Closing Price Average; and
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(ii) immediately available United States Funds equal to that
portion of the Purchase Price not payable in NACCO Class A
Shares.
7.8 CLOSING.
(a) The Closing of the purchase and sale of any Partnership
Interests pursuant to this Agreement shall occur at the time, date and place
specified by the Partnership in its written notice pursuant to Sections
7.4(e)(iii) or 7.5(d)(iii), as the case may be.
(b) At Closing, transfer instruments shall be respectively
delivered by the seller to each purchaser against payment of such purchaser's
portion of the Purchase Price. Such delivery shall constitute warranties by the
seller thereof that such seller has full authority to transfer the Partnership
Interests to such purchaser and that such purchaser is acquiring the Partnership
Interests free and clear of all liens, encumbrances or other outstanding
interests of any nature, other than those created pursuant to the terms of this
Agreement.
7.9 LEGAL REQUIREMENTS. The purchase and sale of any Partnership
Interests pursuant to this Agreement shall be subject to compliance with all
applicable state and federal securities laws, and each Partner agrees without
additional consideration to do all necessary things reasonably requested by the
Partnership in connection therewith, the reasonable expenses of such to be paid
by the selling Partner(s).
8. CODE SECTION 754 ELECTION. Upon the written request of Partners owning more
than fifty percent (50%) of all Partnership Interests, the Partnership shall
file an election under Code Section 754 to adjust the tax basis of the
Partnership Property, with respect to any distribution of Partnership Property
to a Partner or a transfer of a Partnership Interest, in accordance with Code
Sections 734(b) and 743(b). The Partners acknowledge that once a Code Section
754 election shall be validly filed by the Partnership, it shall remain in
effect indefinitely thereafter unless the Internal Revenue Service approves the
revocation of such election.
9. DISSOLUTION.
9.1 DISSOLUTION AND TERMINATION. The Partnership shall continue for the
term described in Section 2.4 hereof, unless earlier dissolved (a) with the
consent of the Managing Partner and Partners owning more than ninety percent
(90%) of all Partnership Interests, or (b) upon the bankruptcy of a General
Partner unless the continuation of the Partnership is agreed to in writing by
all other General Partners, if any, or by Partners holding more than fifty
percent (50%) of all Capital Accounts and all Partnership Percentages
(exclusive of the Capital Accounts and Partnership Percentages of the bankrupt
General Partner), or
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(c) with the consent of the Managing Partner, upon the Transfer of substantially
all of the shares of Class B Common Stock of NACCO held by the Partnership. In
the event that the Partnership is dissolved, the assets of the Partnership shall
be liquidated as promptly as is consistent with obtaining the fair market value
thereof, and the proceeds therefrom, together with any assets distributed in
kind, shall be distributed first to creditors to satisfy all debts and
liabilities of the Partnership other than loans or advances made by the Partners
to the Partnership, then to the establishment of reserves deemed reasonably
necessary to satisfy contingent or unforeseen liabilities or obligations of the
Partnership, then to the repayment of any loans or advances made by the Partners
to the Partnership, with the balance, if any, to be distributed in accordance
with the balances in each Partner's Capital Account at that time. Solely for the
purposes of determining the balances of the Partners' Capital Accounts at that
time, any Partnership Property that is distributed in kind shall be treated as
though such Partnership Property were sold for its fair market value as of the
date of distribution, as determined by an independent appraiser. Upon completion
of the foregoing, the Partnership shall be terminated.
9.2 CONTINUATION OF BUSINESS. Except as provided in Section 8.1,
neither the disposition of any Partnership Interest pursuant to 7.2 hereof nor
the death, insanity, incapacity, or bankruptcy of a Partner shall cause the
dissolution or termination of the Partnership or have any effect upon the
continuance of the Partnership business. No Partner shall have a right to
withdraw from the Partnership or to abandon any Partnership Interest except as
expressly provided herein.
10. POWER OF ATTORNEY.
10.1 GRANT OF POWER. Each Partner by his, her or its signature below
irrevocably makes, constitutes and appoints the Managing Partner, and each of
them, his, her or its true and lawful attorney in his, her or its name, place
and stead in any capacities, with the power from time to time to substitute or
resubstitute one or more others as such attorney, and to make, execute, swear
to, acknowledge, verify, deliver, file, record and publish any and all
documents, certificates or other instruments which may be required or deemed
desirable by the Managing Partner to (a) effectuate the provisions of any part
of this Agreement or any amendments to this Agreement, (b) enable the
Partnership to conduct its business, (c) comply with any applicable law in
connection with the Partnership's conduct of its business, or (d) to execute any
and all statements under Section 13 or Section 16 of the Securities Exchange Act
of 1934, as amended, of beneficial ownership of NACCO Class B Shares, subject to
the NACCO Stockholders' Agreement, as amended from time to time, including all
statements on Schedule 13D and all amendments thereto, all joint filing
agreements pursuant to Rule 13d-l(f)(iii) under such Act in connection with such
statements, all initial statements of beneficial ownership on Form 3 and any and
all other documents to
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be filed with the Securities and Exchange Commission, and to file the same, with
all exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission. Each Partner grants to said attorney or
attorneys-in-fact, and each of them, full power and authority to do so and to
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney or attorneys-in-fact or any of them or their substitutes or
resubstitutes, may lawfully do or cause to be done by virtue of this Section .
10.2 IRREVOCABLE NATURE. It is expressly intended by each Partner that
the foregoing power of attorney is a special power of attorney coupled with an
interest in favor of each of those appointed as attorney-in-fact on his, her or
its behalf, and as such shall be irrevocable and shall survive such Partner's
death, incompetence (including an adjudication of insanity) or, in the case of a
Limited Partner which is not a natural person, its merger, dissolution or other
termination of existence.
10.3 FURTHER ASSURANCES - POWER OF ATTORNEY. If applicable law requires
additional or substituted language in order to validate the power of attorney
intended to be granted by this Section 10, each Shareholder agrees to execute
and deliver such additional instruments and to take such further acts as may be
necessary to validate such power of attorney.
10.4 TRANSFER OF PARTNERSHIP INTERESTS. The foregoing power of attorney
shall survive the delivery of an instrument of transfer by any Partner of the
whole or any portion of or interest in his, her or its Partnership Interest,
except that where a transferee of such Partnership Interest has been approved as
a successor Partner and the transferee shall thereupon cease being a Partner
(all in accordance with this Agreement), then the power of attorney of the
transferor Partner shall survive the delivery of such instrument of transfer for
the sole purpose of enabling the attorneys-in-fact for such transferor Partner
(or any of them) to execute, swear to, acknowledge and file any and all
instruments necessary to effectuate such transfer and succession.
11. GENERAL PROVISIONS.
11.1 OBTAINING PARTNER APPROVALS OF PARTNERSHIP ACTIONS. The requisite
approval of the General Partners or Partners, whichever is appropriate, may take
the form of the approval of an outline of the general terms of the transaction,
and the negotiation of detailed terms may be delegated to the Managing Partner
or to any one or more specified Partners, or the approval may be in the form of
a blanket delegation of authority to the Managing Partner or to any one or more
specified Partners to act
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on behalf of the Partnership in regard to a particular transaction that is being
considered.
11.2 ARBITRATION. Any dispute arising in connection with this Agreement
shall be an Arbitrable Dispute and shall be finally settled by arbitration under
the then applicable Commercial Arbitration Rules of the American Arbitration
Association, by one or more arbitrators agreed upon by the parties or, in the
absence of such an agreement, appointed in accordance with such Rules. The
arbitration proceedings shall be held in Cleveland, Ohio. Judgment upon the
award rendered may be entered in any court having jurisdiction and application
may be made to such court for judicial acceptance of such award and an order of
enforcement as the case may be. The Partners hereby agree that the rendering of
an award by the arbitrator or arbitrators shall be a condition precedent to the
initiation of any legal proceedings with respect to any Arbitrable Dispute.
11.3 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given when the
same are (a) delivered in person, or (b) delivered by express or overnight mail
or by certified or registered mail, postage prepaid, to the Partners at the
addresses set forth in SCHEDULE B attached hereto, and to the Partnership at the
address of its principal office, or at such other address as the Partners may
from time to time determine. A delivery receipt shall be conclusive evidence
that the respective mailing has in fact been delivered and the date thereof. Any
Partner may change his or her address for notices by designating a new address
by notice given to the other Partners and the Partnership in accordance with
this Section 11.3.
11.4 WAIVER OF RIGHT TO PARTITION. The Partners, by execution of this
Agreement, waive their respective rights to partition of the Partnership
Property.
11.5 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
11.6 HEADINGS. The section headings in this Agreement are inserted
solely as a matter of convenience and for reference, and are not a substantive
part of this Agreement.
11.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto and supersedes and cancels any prior agreements,
representations, warranties, or communications, whether oral or written, among
any parties hereto regarding the transactions contemplated hereby and the
subject matter hereof. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an agreement in
writing signed by the party against whom or which the enforcement of such
change, waiver, discharge or termination is sought.
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11.8 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia.
11.9 COUNTERPARTS. This Agreement and any documents executed in
connection herewith may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
11.10 PRONOUNS. All pronouns used herein shall be deemed to refer to
the masculine, feminine or neuter gender as the context requires.
11.11 REMEDIES CUMULATIVE. All rights and remedies granted to the
Partnership or to any Partner hereunder shall be cumulative with, and not in
derogation of or exclusive of, any rights and remedies which may be available by
operation of law or otherwise.
11.12 FURTHER ASSURANCES. Each of the parties hereto agrees to execute
and deliver such instruments, and to take such other actions, as shall be
necessary or appropriate in connection with the consummation of the transactions
contemplated hereby or the operation of the Partnership.
11.13 SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to any other Person or circumstance shall not be affected
thereby and shall be enforced to the fullest extent permitted by law.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES BEGIN ON NEXT PAGE.}
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{SIGNATURE PAGE FOR LIMITED PARTNERSHIP AGREEMENT OF CTR FAMILY ASSOCIATES,
L.P.}
IN WITNESS WHEREOF, the Partners have hereunto set their hands and
seals as of the day and year first above written.
GENERAL PARTNER:
XXXXXX MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------
President
Attest: /s/ Claiborne X. Xxxxxx
--------------------------------
Treasurer
(Corporate Seal)
Signed, sealed, and delivered
in the presence of:
------------------------------
Witness
------------------------------
Notary Public
My Commission Expires:
--------
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SCHEDULE A (Original Subscriptions)
PARTNERS / CAPITAL CONTRIBUTIONS
===================================================================================================================
Name Property Interest
---- -------- --------
Contributed
-----------
===================================================================================================================
GENERAL PARTNER(S)
===================================================================================================================
Xxxxxx Management, Inc.
(a) Xxxxxx Management Lot 1 2000 0.469075% 1.8763%
-------------------------------------------------------------------------------------------------------------------
(b) Xxxxxx Management Lot 2 2000 0.469075%
-------------------------------------------------------------------------------------------------------------------
(c) Xxxxxx Management Lot 3 2000 0.469075%
-------------------------------------------------------------------------------------------------------------------
(d) Xxxxxx Management Lot 4 2000 0.469075%
-------------------------------------------------------------------------------------------------------------------
Total for Ranking Management, Inc.: 8,000 Shares 1.8763%
===================================================================================================================
LIMITED PARTNERS
===================================================================================================================
Xxxxx Xxxxxx Xxxxxx Lot 1 225,247 Shares 52.8289%
-------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx, Xx.
-------------------------------------------------------------------------------------------------------------------
(a) A.M. Xxxxxx Lot 1 800 .1876%
-------------------------------------------------------------------------------------------------------------------
(b) A.M. Xxxxxx Lot 2 17,570 4.1208%
-------------------------------------------------------------------------------------------------------------------
(c) A.M. Xxxxxx Lot 3 59,428 13.9381%
-------------------------------------------------------------------------------------------------------------------
Total for Xxxxxx X. Xxxxxx Xx.: 77,798 Shares 18.2466%
Xxxxx X. Xxxxxx
-------------------------------------------------------------------------------------------------------------------
(a) X.X. Xxxxxx Lot 1 800 0.1876%
-------------------------------------------------------------------------------------------------------------------
(b) X.X. Xxxxxx Lot 2 14,400 3.3773%
-------------------------------------------------------------------------------------------------------------------
(c) X.X. Xxxxxx Lot 3 72,999 17.1027%
-------------------------------------------------------------------------------------------------------------------
Total for Xxxxx X. Xxxxxx: 88,198 Shares 20.6857%
-------------------------------------------------------------------------------------------------------------------
Claiborne X. Xxxxxx Lot 1 8,000 Shares 1.8763%
-------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxx Lot 1 8,000 Shares 1.8763%
-------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx Lot 1 8,000 Shares 1.8763%
-------------------------------------------------------------------------------------------------------------------
Victoire X. Xxxxxx Lot 1 3,128 Shares 0.7336%
-------------------------------------------------------------------------------------------------------------------
TOTALS 426,371 Shares 100%
===================================================================================================================
38
SCHEDULE B
PARTNER ADDRESSES
===================================================================================================================================
Street Address/
Name P.O. Box City State Zip Code
===================================================================================================================================
GENERAL PARTNER(S)
===================================================================================================================================
Xxxxxx Management, Inc. Xxxxx 000 Xxxxxxxx Xxxxxxx XX 00000-0000
0000 Xxxxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
LIMITED PARTNERS
===================================================================================================================================
Xxxxx Xxxxxx Xxxxxx 0000 Xxxxx Xxxx Xxxxxxx Xxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx, Xx. 0000 Xxxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx XX 00000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxx Xxxxx 000 Xxxxxxxx Xxxxxxx XX 00000-0000
0000 Xxxxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Claiborne X. Xxxxxx 00000 Xxxxx Xxxx Xxxxx Xxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxx X.X. Xxx 000 Xxxxx Xxxxx XX 00000
0000 Xxxxxxxxx Xxxx
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 000 Xxxxxxx Xxxx Xxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Victoire X. Xxxxxx 0000 Xxxxxxx Xxxx Xxxxx Xxxx XX 00000
===================================================================================================================================
