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EXHIBIT 10.15
AGREEMENT
OF
PARTNERSHIP
OF
LAREDO CANDLE COMPANY L.L.P.
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TABLE OF CONTENTS
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ARTICLE I
GENERAL...................................................................1
1.1 Formation........................................................1
1.2 Name.............................................................1
1.3 Purpose..........................................................1
1.4 Term.............................................................2
1.5 Principal Office of Partnership; Addresses of Partners...........2
(a) Partnership Offices.....................................2
(b) Addresses of Partners...................................2
ARTICLE II
DEFINITIONS...............................................................2
ARTICLE III
CAPITAL CONTRIBUTIONS AND ACCOUNTS........................................5
3.1 Initial Capital Contributions....................................5
(a) HIGI....................................................5
(b) Miracle.................................................5
3.2 Additional Capital Contributions.................................5
3.3 Working Capital Loans and Other Credit Support...................6
(a) Partnership Loans.......................................6
(b) Contingent Liability....................................6
3.4 Capital Accounts.................................................6
(a) In General..............................................6
(b) Negative Capital Accounts...............................9
(c) Interest................................................9
(d) No Withdrawal...........................................9
(e) No Preemptive Rights....................................9
ARTICLE IV
ALLOCATIONS OF PROFIT AND LOSS AND DISTRIBUTIONS.........................10
4.1 General Allocations of Profits and Losses.......................10
(a) General Allocations....................................10
(b) Limitation on Loss Allocations.........................10
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4.2 Distributions.............................................................10
(a) General..........................................................10
(b) Overriding Distribution..........................................11
(c) Withheld Amounts.................................................11
(d) Distributions in Liquidation of Partner's Partnership Interest...11
4.3 Special Allocations of Profits and Losses.................................12
(a) Special Allocations..............................................12
(b) Curative Allocations.............................................13
(c) Tax Allocations: Code Section 704(c)............................14
(d) Other Allocation Rules...........................................14
ARTICLE V
MANAGEMENT.........................................................................15
5.1 Management of the Partnership.............................................15
(a) Management Committee.............................................15
(b) Compensation.....................................................17
(c) Notices..........................................................17
5.2 Managing Officers.........................................................17
(a) General..........................................................17
(b) Chairman.........................................................18
(c) President........................................................18
(d) Vice Presidents..................................................18
(e) Secretary and Assistant Secretaries..............................19
(f) Treasurer and Assistant Treasurers...............................19
5.3 Contracts with Related Parties............................................20
5.4 Time Devoted to Partnership...............................................20
5.5 Other Businesses and Undertakings.........................................20
5.6 Scope of Authority; Indemnification.......................................21
(a) Partners.........................................................21
(b) Management Committee, Officer, and Employee Indemnities..........21
ARTICLE VI
SALE, TRANSFER, OR MORTGAGE........................................................23
6.1 General...................................................................23
(a) Transfer Restrictions and Procedures....................23
(b) Distributions and Allocations in Respect of
Transferred Partnership Interests...............24
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ARTICLE VII
DEFAULT AND DISSOLUTION............................................................25
7.1 Events of Default.........................................................25
7.2 Causes of Termination or Dissolution......................................26
7.3 Election of Non-Defaulter.................................................26
(a) Purchase of Defaulter's Interest.................................26
(b) Closing..........................................................27
(c) Election to Dissolve.............................................27
7.4 Procedure in Dissolution and Liquidation..................................27
(a) Winding Up.......................................................27
(b) Management Rights During Winding Up..............................27
(c) Allocation of Profits and Losses.................................28
(d) Distributions in Liquidation.....................................28
(e) Non-Cash Assets..................................................28
7.5 Disposition of Documents and Records......................................29
ARTICLE VIII
APPRAISAL..........................................................................29
ARTICLE IX
FINANCIAL MATTERS..................................................................30
9.1 Books, Records, Accounting, and Reports...................................30
(a) Records and Accounting...........................................30
(b) Fiscal Year......................................................30
9.2 Tax Matters...............................................................30
(a) Preparation of Tax Returns.......................................30
(b) Tax Elections....................................................30
(c) Tax Controversies................................................30
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ARTICLE X
GENERAL PROVISIONS...........................................................31
10.1 Addresses and Notices...............................................31
10.2 Titles and Captions.................................................31
10.3 Pronouns and Plurals................................................32
10.4 Further Action......................................................32
10.5 Binding Effect......................................................32
10.6 Integration.........................................................32
10.7 Creditors...........................................................32
10.8 Waiver..............................................................32
10.9 Counterparts........................................................32
10.10 Applicable Law......................................................32
10.11 Invalidity of Provisions............................................33
10.12 Amendment...........................................................33
10.13 Entire Agreement....................................................33
10.14 Confidential Information............................................33
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THE PARTNERSHIP INTERESTS REPRESENTED BY THIS PARTNERSHIP AGREEMENT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
ACTS IN RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER
DISPOSITION OF THE PARTNERSHIP INTERESTS IS PROHIBITED UNLESS SUCH SALE OR
DISPOSITION IS MADE IN COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL
RESTRICTIONS ON TRANSFER OF THE PARTNERSHIP INTERESTS ARE SET FORTH IN THIS
AGREEMENT.
AGREEMENT
OF
PARTNERSHIP
OF
LAREDO CANDLE COMPANY L.L.P.
THIS AGREEMENT OF PARTNERSHIP is entered into by and among Home
Interiors & Gifts, Inc., a Texas corporation, and Miracle Candle Company, a
Texas corporation.
Capitalized terms used in this Agreement are defined in Article II
hereof.
ARTICLE I
GENERAL
1.1 FORMATION. Subject to the provisions of this Agreement, the
Partners hereby form the Partnership as a registered limited liability
partnership pursuant to the provisions of the Texas Act, including Section 3.08
of the Texas Act. Except as expressly provided herein, the rights and
obligations of the Partners and the administration and termination of the
Partnership shall be governed by the Texas Act.
1.2 NAME. The name of the Partnership shall be, and the business
of the Partnership shall be conducted under the name of, Laredo Candle Company
L.L.P.
1.3 PURPOSE. The purpose and business of the Partnership shall be
to acquire, construct, and operate a candle manufacturing facility and to
conduct any business or activity related thereto that may lawfully be conducted
by a partnership organized pursuant to the Texas Act. Any or all of the
foregoing activities may be conducted directly by the Partnership or indirectly
through another partnership, joint venture, or other arrangement.
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1.4 TERM. The Partnership shall continue in existence until
termination or dissolution of the Partnership in accordance with the provisions
of Section 7.2 of this Agreement.
1.5 PRINCIPAL OFFICE OF PARTNERSHIP; ADDRESSES OF PARTNERS.
(a) Partnership Offices. The principal office of the
Partnership shall be 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxx 00000 or such other
place as the Management Committee may from time to time designate. The
Partnership may maintain offices at such other place or places as the
Management Committee deems advisable.
(b) Addresses of Partners. The address of each Partner
shall be the address of such Partner appearing on the books of the Partnership
from time to time, as provided for in Section 10.1 of this Agreement.
ARTICLE II
DEFINITIONS
The following definitions shall apply to the terms used in this
Agreement, unless otherwise clearly indicated to the contrary in this
Agreement.
"Additional Capital Contributions" has the meaning set forth in
Section 3.2.
"Adjusted Capital Account Deficit" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account as of the end of
the relevant fiscal year or other period, after giving effect to the following
adjustments: (a) any amounts that such Partner is, or is deemed to be,
obligated to restore pursuant to Section 1.704-1(b)(2)(ii)(c) of the
Regulations, the penultimate sentence of Section 1.704-2(g)(1) of the
Regulations, or the penultimate sentence of Section 1.704-2(i)(5) of the
Regulations, shall be credited to such Capital Account; and (b) the items
described in Sections 1.704-1(b)(2)(ii)(d)(4), (5), and (6) of the Regulations
shall be debited to such Capital Account. For these purposes, no Partner who
has an unconditional obligation to restore any deficit balance in his Capital
Account in accordance with the requirements of Section 1.704-1(b)(2)(ii)(b)(3)
of the Regulations shall have an Adjusted Capital Account Deficit. The
foregoing definition of Adjusted Capital Account Deficit is intended to comply
with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and
shall be interpreted consistently therewith.
"Affiliate" means any Person that directly or indirectly controls, is
controlled by, or is under common control with, the Person in question. As
used in this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract, or otherwise.
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"Agreement" means this Agreement of Partnership, as it may be amended,
supplemented, or restated from time to time.
"Book Depreciation" means for any asset for any fiscal year or other
period an amount that bears the same ratio to the Gross Asset Value of that
asset at the beginning of such fiscal year or other period as the federal
income tax depreciation, amortization, or other cost recovery deduction
allowable for that asset for such year or other period bears to the adjusted
tax basis of that asset at the beginning of such year or other period. If the
federal income tax depreciation, amortization, or other cost recovery deduction
allowable for any asset for such year or other period is zero, then Book
Depreciation for that asset shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the
Management Committee.
"Capital Account" means the capital account maintained for a Partner
pursuant to Section 3.4.
"Capital Contribution" means any asset or property of any nature
contributed by a Partner to the Partnership pursuant to the provisions of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commencement Date" means the date of execution of this Agreement by
the Partners.
"Damages" has the meaning set forth in Section 5.6(a)(i).
"Defaulter" has the meaning set forth in Section 7.3(a).
"Event of Default" has the meaning set forth in Section 7.1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor to such statute.
"Gross Asset Value" has the meaning set forth in Section 3.4(a)(iii).
"HIGI" means Home Interiors & Gifts, Inc., a Texas corporation, and
any Person that shall succeed to the entire interest of such corporation as a
partner of the Partnership in accordance with the provisions of this Agreement.
"Indemnified Person" has the meaning set forth in Section 5.6(b).
"Initiating Partner" has the meaning set forth in Section 6.1(a)(i).
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"Losses" has the meaning set forth in Section 3.4(a)(ii).
"Management Committee" has the meaning set forth in Section 5.1(a).
"Miracle" means Miracle Candle Company, a Texas corporation, and any
Person that shall succeed to the entire interest of such corporation as a
partner of the Partnership in accordance with the provisions of this Agreement.
"Non-Defaulter" has the meaning set forth in Section 7.3(a).
"Partner" means HIGI or Miracle. "Partners" means HIGI and Miracle,
collectively.
"Partner Minimum Gain" means partnership minimum gain attributable to
partner nonrecourse debt as determined under the rules of Section 1.704-2(i) of
the Regulations.
"Partner Nonrecourse Deductions" has the meaning set forth in Section
1.704-2(i)(2) of the Regulations.
"Partnership" means the registered limited liability partnership
established pursuant to this Agreement.
"Partnership Interest" means the interest acquired by a Partner in the
Partnership, including the Partner's right: (a) to its allocable share of the
Profits, Losses, deductions, and credits of the Partnership, (b) to its
distributive share of the assets of the Partnership, (c) to vote on those
matters described in this Agreement, and (d) to participate in the management
and operation of the Partnership.
"Partnership Loans" has the meaning set forth in Section 3.3(a).
"Partnership Minimum Gain" has the meaning set forth in Section
1.704-2(b)(2) of the Regulations.
"Percentage Interest" means the percentage set forth opposite each
Partner's name on Exhibit A to this Agreement, as such Exhibit may be amended
from time to time in accordance with this Agreement.
"Person" means an individual or a corporation, partnership, trust,
estate, unincorporated organization, association, or other entity.
"Profits" has the meaning set forth in Section 3.4(a)(ii).
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"Receiving Partner" has the meaning set forth in Section 6.1(a)(i).
"Regulations" means the Department of Treasury Regulations promulgated
under the Code, whether proposed, temporary, or final, as amended and in effect
(including corresponding provisions of succeeding regulations).
"Regulatory Allocations" has the meaning set forth in Section 4.3(b).
"Response Notice" has the meaning set forth in Section 6.1(a)(ii).
"Securities Act" means the Securities Act of 1933, as amended, and any
successor to such statute.
"Texas Act" means the Texas Revised Partnership Act, Article 6132b of
Title 105 of the Texas Civil Statutes, as it may be amended from time to time,
and any successor to such statute.
"Transfer Notice" has the meaning set forth in Section 6.1(a)(i).
ARTICLE III
CAPITAL CONTRIBUTIONS AND ACCOUNTS
3.1 INITIAL CAPITAL CONTRIBUTIONS.
(a) HIGI. On the Commencement Date, HIGI shall
contribute to the Partnership the property described opposite HIGI's name in
Exhibit B hereto. The Partners acknowledge and agree that the Gross Asset
Value of such contributions is as set forth in Exhibit B hereto.
(b) Miracle. On the Commencement Date, Miracle shall
contribute to the Partnership the property described opposite Miracle's name in
Exhibit B hereto. The Partners acknowledge and agree that the Gross Asset
Value of such contributions is as set forth in Exhibit B hereto.
3.2 ADDITIONAL CAPITAL CONTRIBUTIONS. Except as otherwise agreed
by the Partners, each Partner shall be required to contribute to the
Partnership as a contribution to capital in addition to the initial capital
contributions described in Section 3.1, cash necessary to fund the working
capital or other cash requirements of the Partnership as determined by the
Management Committee (the "Additional Contributions"). The Additional
Contributions of the Partners shall be made in proportion to their respective
Percentage Interests. This obligation to make Additional Contributions shall
not be considered an asset of the Partnership and shall not be for the benefit
of any creditor of the Partnership.
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3.3 WORKING CAPITAL LOANS AND OTHER CREDIT SUPPORT.
(a) Partnership Loans. The Partners may agree from time
to time to make loans to the Partnership which in each such case shall be in
proportion to their Percentage Interests (the "Partnership Loans"). All
Partnership Loans shall be made on not less than five days' prior written
request to the Partners by the Partnership. Partnership Loans shall not be
construed as contributions to the capital of the Partnership and shall not
affect the Partners' Capital Accounts. Partnership Loans shall be due and
payable, unless extended by agreement of the Partners, within one year from the
date made. Partnership Loans shall be evidenced by written promissory notes
and shall bear interest on a quarterly basis at a rate equal to the higher of
(x) the base rate paid by HIGI under its principal bank credit agreement or (y)
the prime rate of Nationsbank, N.A. (or its successor) plus 1%, in effect on
the first day of each calendar quarter (but in no event to exceed the maximum
rate permitted by law).
(b) Contingent Liability. To the extent that the
operations of the Partnership require that the Partners guarantee, endorse, or
otherwise become contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment to, to supply funds to,
or otherwise assure a creditor against loss) any debt, obligation, or other
liability of the Partnership, such contingent liability shall be assumed
severally by the Partners, pro rata in accordance with their Percentage
Interests and on equivalent terms. The Partners shall be subrogated to the
rights of the applicable creditor or creditors of the Partnership in respect of
any payments pursuant to such liability. No such payment shall be construed as
a Capital Contribution nor shall any such payment affect the Partners' Capital
Accounts.
3.4 CAPITAL ACCOUNTS.
(a) In General.
(i) The Partnership shall maintain for each Partner
a separate Capital Account in accordance with this Section 3.4(a), which shall
control the division of assets upon liquidation of the Partnership to the
extent provided in Section 7.4(d). Each Capital Account shall be maintained in
accordance with the following provisions:
(A) The Capital Account shall be
increased by the amount of cash and the Gross Asset Value of any other
Capital Contributions made by a Partner to the Partnership pursuant to
this Agreement, by the Partner's allocable share of Profits and any
item of income or gain specially allocated to the Partner pursuant to
Section 4.3(a) or 4.3(b), and by the amount of any Partnership
liabilities assumed by the Partner or that are secured by any property
distributed to the Partner.
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(B) The Capital Account shall be decreased
by the amount of cash and the Gross Asset Value of any other property
distributed to the Partner pursuant to this Agreement, by the
Partner's allocable share of Losses and any items of expense or loss
specially allocated to the Partner pursuant to Section 4.3(a) or
4.3(b), and by the amount of any liabilities of the Partner assumed by
the Partnership or any liabilities secured by any property contributed
by the Partner to the Partnership.
(C) If all or a portion of a Partnership
Interest is transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent the Capital Account relates to the
transferred Partnership Interest.
(D) The principal amount of a promissory
note that is not readily traded on an established securities market
and that is contributed to the Partnership by the maker of the note
shall not be included in the Capital Account of any Partner until the
Partnership makes a taxable disposition of the note or until and to
the extent that principal payments are made on the note, all in
accordance with Section 1.704-1(b)(2)(iv)(d)(2) of the Regulations.
The foregoing provisions and the other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Section
1.704-1(b)(2)(iv) of the Regulations and shall be interpreted and applied in a
manner consistent with such Regulations.
(ii) "Profits" and "Losses" mean, for each fiscal
year or other period, an amount equal to the Partnership's taxable income or
loss for such year or period, determined in accordance with Section 703(a) of
the Code (for this purpose, all items of income, gain, loss, or deduction
required to be stated separately pursuant to Section 703(a)(1) of the Code
shall be included in taxable income or loss), but with the following
adjustments for such fiscal year or other period:
(A) Income of the Partnership that is
exempt from federal income tax as described in Section 705(a)(1)(B) of
the Code, and not otherwise taken into account in computing Profits
and Losses, shall be added to such taxable income or loss as if it
were taxable income.
(B) Any expenditures of the Partnership
described in Section 705(a)(2)(B) of the Code, or treated as
expenditures under Section 705(a)(2)(B) of the Code pursuant to
Section 1.704-1(b)(2)(iv)(i) of the Regulations, and not otherwise
taken into account in computing Profits and Losses, shall be
subtracted from such taxable income or loss as if such expenditures
were deductible items.
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(C) If the Gross Asset Value of any
Partnership asset is adjusted pursuant to this Agreement, the amount
of the adjustment shall be taken into account as gain or loss from the
disposition of the asset for purposes of computing such taxable income
or loss.
(D) Gain or loss resulting from any
disposition of property with respect to which gain or loss is
recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of the property differs
from the Gross Asset Value of the property.
(E) In lieu of the deduction for
depreciation, cost recovery, or amortization taken into account in
computing such taxable income or loss, there shall be taken into
account Book Depreciation for such fiscal year or other period.
(F) Notwithstanding any other provision
of this Agreement, any items that are specially allocated pursuant to
Section 4.3(a) or Section 4.3(b) shall not be taken into account as
taxable income or loss for purposes of computing Profits and Losses.
If the Partnership's taxable income or taxable loss for the year or period, as
adjusted pursuant to subparagraphs (A)-(F) above, is a positive amount, that
amount shall be the Partnership's Profit for such fiscal year or other period;
and if negative, that amount shall be the Partnership's Loss for such fiscal
year or other period.
(iii) "Gross Asset Value" means, for any asset, the
asset's adjusted basis for federal income tax purposes, except as set forth
below:
(A) The initial Gross Asset Value of any
asset contributed by a Partner to the Partnership shall be the gross
fair market value of the asset on the date of contribution, as
determined by the Management Committee.
(B) The Gross Asset Values of all
Partnership assets shall be adjusted to equal their gross fair market
values, as determined by the Management Committee, as of the following
times: (1) the contribution of more than a de minimis amount of money
or other property to the Partnership as a Capital Contribution by a
new or existing Partner, or the distribution by the Partnership to a
retiring or continuing Partner of more than a de minimis amount of
property as consideration for an interest in the Partnership, if the
Management Committee reasonably determines that such adjustment is
necessary or appropriate to reflect the relative economic interests of
the Partners in the Partnership; or (2) the liquidation of the
Partnership within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Regulations.
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(C) The Gross Asset Value of any
Partnership asset distributed to any Partner shall be the gross fair
market value of such asset on the date of distribution, as determined
by the Management Committee.
(D) The Gross Asset Values of any
Partnership asset shall be increased (or decreased) to reflect any
adjustment to the adjusted basis of such asset pursuant to Section
734(b) of the Code or Section 743(b) of the Code, but only to the
extent that such adjustment is taken into account in determining
Capital Accounts pursuant to Section 1.704-1(b) (2)(iv)(m) of the
Regulations and Section 4.3(a)(iv) provided, however, that Gross Asset
Values shall not be adjusted pursuant to this Section 3.4(a)(iii)(D)
to the extent the Management Committee determines that an adjustment
pursuant to Section 3.4(a)(iii)(B) is necessary or appropriate in
connection with a transaction that would otherwise result in an
adjustment pursuant to this Section 3.4(a)(iii)(D).
(E) If the Gross Asset Value of an asset
has been determined or adjusted pursuant to Section 3.4(a)(iii)(A),
3.4(a)(iii)(B), or 3.4(a)(iii)(D), such Gross Asset Value shall
thereafter be adjusted by the Book Depreciation taken into account
with respect to such asset for purposes of computing Profits and
Losses.
(b) Negative Capital Accounts. If any Partner has a
negative balance in its Capital Account on the date of the liquidation of such
Partner's "interest in the partnership" (within the meaning of Section
1.704-1(b)(2)(ii)(g) of the Regulations) after taking into account allocations
of Profits, Losses, and other items of income, gain, loss, deduction or credit,
and distributions of cash or property (in each case as provided in this Article
III or Article IV), that Partner shall contribute to the Partnership an amount
of cash equal to (but in no event will it be obligated to contribute more than)
the negative balance in the Partner's Capital Account. Any amount contributed
by a Partner shall be paid to the creditors of the Partnership or distributed
to the other Partners, in either case as provided in Section 7.4(d). Any
Capital Contribution required hereunder shall be made on or before the later of
(i) the end of the taxable year of the Partnership in which such Partner's
Partnership Interest is liquidated, or (ii) the 90th day following the date of
such liquidation.
(c) Interest. No interest shall be paid by the
Partnership on Capital Contributions or on balances in Capital Accounts.
(d) No Withdrawal. No Partner shall be entitled to
withdraw any part of his Capital Contribution or his Capital Account or to
receive any distribution from the Partnership, except as provided in Section
4.2 and Article VII.
(e) No Preemptive Rights. No Partner shall have any
preemptive, preferential, or other right with respect to (i) additional Capital
Contributions; (ii) issuance or sale of Partnership Interests; (iii) issuance
of any obligations, evidences of indebtedness, or other securities of the
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Partnership convertible into or exchangeable for, or carrying or accompanied by
any rights to receive, purchase, or subscribe to, any such Partnership
Interests; (iv) issuance of any right to, subscription to, or right to receive,
or any warrant or option for the purchase of, any of the foregoing securities;
or (v) issuance or sale of any other securities that may be issued or sold by
the Partnership.
ARTICLE IV
ALLOCATIONS OF PROFIT AND LOSS AND DISTRIBUTIONS
4.1 GENERAL ALLOCATIONS OF PROFITS AND LOSSES.
(a) General Allocations. After giving effect to the
allocations set forth in Sections 4.3(a) and 4.3(b) of this Agreement, Profits
and Losses for any fiscal year or other period shall be allocated as follows:
(i) Profits. Profits shall be allocated to
the Partners in proportion to their Percentage Interests.
(ii) Losses. Subject to the limitation in Section
4.1(b), Losses shall be allocated to the Partners in proportion to their
Percentage Interests.
(b) Limitation on Loss Allocations. The aggregate amount
of Losses allocated pursuant to Section 4.1(a) hereof and the next sentence of
this Section 4.1(b) to any Partner for any fiscal year shall not exceed the
maximum amount of Losses that may be allocated to such Partner without causing
such Partner to have an Adjusted Capital Account Deficit at the end of such
fiscal year. All Losses in excess of the limitation in this Section 4.1(b)
with respect to any Partner shall be allocated solely to the other Partners in
proportion to their Percentage Interests. If no other Partner may receive an
additional allocation of Losses pursuant to this Section 4.1(b), such
additional Losses not allocated pursuant to Section 4.1(a) of this Agreement or
the preceding sentence shall be allocated solely to those Partners that bear
the economic risk for such additional Losses within the meaning of Section
704(b) of the Code and the Regulations thereunder. If it is necessary to
allocate Losses under the preceding sentence, the Management Committee shall
determine those Partners that bear the economic risk for such additional
Losses.
4.2 DISTRIBUTIONS.
(a) General. The Management Committee shall review the
Partnership's available cash at the end of each calendar quarter to determine
whether distributions are appropriate. The Management Committee may make such
distributions as it may determine in its sole discretion, without being limited
to current or accumulated income or gains, but no such distribution shall be
made out of funds required to make current payments on Partnership indebtedness
and no distributions of Partnership property (other than cash) shall be made to
any Partner except as
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otherwise provided in Section 7.4(e). Except to the extent Section 7.4(d) is
applicable, all distributions pursuant to this Section 4.2 shall be made in
proportion to the Partners' Percentage Interests.
(b) Overriding Distribution. Notwithstanding the
provisions of (a) above, if at any time distributions to a Partner would create
or increase an Adjusted Capital Account Deficit and if another Partner has a
positive Capital Account balance [after such Adjusted Capital Account Deficit
and Capital Account balances have been adjusted to reflect the allocation of
Profits and Losses pursuant to this Article IV, taking into account interim
Profits and Losses (determined using such accounting methods as shall be
selected by HIGI) for the period ending on or before such distribution], such
cash flow shall be distributed first to the Partner having a positive Capital
Account balance in an amount equal to such positive balance, and the remaining
cash, if any, shall be distributed in accordance with Section 4.2(a).
(c) Withheld Amounts. Notwithstanding any other
provision of this Section 4.2 to the contrary, each Partner hereby authorizes
the Partnership to withhold and to pay over, or otherwise pay, any withholding
or other taxes payable by the Partnership with respect to the Partner as a
result of the Partner's participation in the Partnership; and if and to the
extent that the Partnership shall be required to withhold or pay any such
taxes, such Partner shall be deemed for all purposes of this Agreement to have
received a payment from the Partnership as of the time such withholding or tax
is paid, which payment shall be deemed to be a distribution with respect to
such Partner's Partnership Interest to the extent that the Partner (or any
successor to such Partner's Partnership Interest) is then entitled to receive a
distribution. To the extent that the aggregate amount of such payments to a
Partner for any period exceeds the distributions to which such Partner is
entitled for such period, the amount of such excess shall be considered a loan
from the Partnership to such Partner. Such loan shall bear interest (which
interest shall be treated as an item of income to the Partnership) at the
lesser of the maximum rate permitted by law and the rate of interest per annum
most recently established by Nationsbank, N.A. (or its successor) as such
bank's general reference rate of interest (which rate may or may not be the
lowest rate of interest then charged by such bank), as determined hereunder
from time to time, until discharged by such Partner by repayment, which may be
made in the sole discretion of the Management Committee out of distributions to
which such Partner would otherwise be subsequently entitled. Any withholdings
authorized by this Section 4.2(c) shall be made at the maximum applicable
statutory rate under the applicable tax law unless the Management Committee
shall have received an opinion of counsel or other evidence satisfactory to the
Management Committee to the effect that a lower rate is applicable, or that no
withholding is applicable.
(d) Distributions in Liquidation of Partner's Partnership
Interest. For purposes of this Agreement, a liquidation of a Partner's
Partnership Interest means the termination of the Partner's entire Partnership
Interest other than in connection with the dissolution, winding up, and
termination of the Partnership. Where a Partner's Partnership Interest is to
be liquidated by a series
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of distributions, the Partnership Interest shall not be considered as
liquidated until the final distribution has been made. If a Partner's
Partnership Interest is to be liquidated, liquidating distributions shall be
made in accordance with the positive Capital Account balance of that Partner
(as determined after taking into account all Capital Account adjustments with
respect to that Partner's Partnership Interest for the taxable year during
which the liquidation occurs, as determined by the Management Committee in
accordance with Section 706 of the Code). A distribution in liquidation of a
Partner's Partnership Interest shall be made by the end of the taxable year in
which such liquidation occurs, or, if later, within 90 days after the Partner's
Partnership Interest is liquidated.
4.3 SPECIAL ALLOCATIONS OF PROFITS AND LOSSES.
(a) Special Allocations.
(i) Minimum Gain Chargeback--Partnership
Nonrecourse Liabilities. If there is a net decrease in Partnership Minimum
Gain during any Partnership taxable year, certain items of income and gain
shall be allocated (on a gross basis) to the Partners in the amounts and manner
described in Section 1.704-2(f) of the Regulations. This Section 4.3(a)(i) is
intended to comply with the minimum gain chargeback requirement (set forth in
Section 1.704-2(f) of the Regulations) relating to Partnership nonrecourse
liabilities (as defined in Section 1.704-2(b)(3) of the Regulations) and shall
be so interpreted.
(ii) Minimum Gain Chargeback--Partner Nonrecourse
Debt. If there is a net decrease in Partner Minimum Gain during any
Partnership taxable year, certain items of income and gain shall be allocated
(on a gross basis) to those Partners who had a share of the Partner Minimum
Gain (determined pursuant to Section 1.704-2(i)(5) of the Regulations) in the
amounts and manner described in Section 1.704-2(i)(4) of the Regulations. This
Section 4.3(a)(ii) is intended to comply with the minimum gain chargeback
requirement (set forth in Section 1.704-2(i)(4) of the Regulations) relating to
partner nonrecourse debt (as defined in Section 1.704-2(b)(4) of the
Regulations) and shall be so interpreted.
(iii) Qualified Income Offset. If any Partner has
an Adjusted Capital Account Deficit, items of Partnership income and gain shall
be specially allocated (on a gross basis) to each such Partner in an amount and
manner sufficient to eliminate the Adjusted Capital Account Deficit of such
Partner as quickly as possible; provided, however, that an allocation pursuant
to this Section 4.3(a)(iii) shall be made only if and to the extent that a
Partner would have an Adjusted Capital Account Deficit after all other
allocations provided for in this Article IV have been tentatively made as if
this Section 4.3(a)(iii) were not a part of this Agreement. This Section
4.3(a)(iii) is intended to constitute a "qualified income offset" within the
meaning of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be so
interpreted.
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(iv) Gross Income Allocation. If any Partner has
a deficit Capital Account at the end of any fiscal year, and such deficit
Capital Account is in excess of the sum of (A) the amount such Partner is
obligated to restore pursuant to any provisions of this Agreement and (B) the
amount such Partner is deemed to be obligated to restore pursuant to the
penultimate sentences of Regulations Section 1.704-2(g)(l) and 1.704-2(i)(5),
each such Partner shall be specially allocated items of Partnership income and
gain in the amount of such excess as quickly as possible, provided that an
allocation pursuant to this Section 4.3(a)(iv) shall be made only if and to the
extent that such Partner would have a deficit Capital Account in excess of such
sum after all other allocations provided for in Sections 4.1 and 4.3 have been
made as if Section 4.3(a)(iii) and this Section 4.3(a)(iv) were not a part of
the Agreement.
(v) Basis Adjustments. To the extent an
adjustment to the adjusted tax basis of any Partnership asset pursuant to
Section 734(b) or 743(b) of the Code is required, pursuant to Section
1.704-1(b)(2)(iv)(m) of the Regulations, to be taken into account in
determining Capital Accounts, the amount of such adjustment to the Capital
Accounts shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases such basis), and such
gain or loss shall be specially allocated to the Partners in a manner
consistent with the manner in which their Capital Accounts are required to be
adjusted pursuant to such Section of the Regulations.
(vi) Nonrecourse Deductions. Partner Nonrecourse
Deductions shall be allocated in accordance with Section 1.704-2(i)(l) of the
Regulations to the Partner who bears the economic risk of loss with respect to
such deductions.
(vii) Allocation of Proceeds of Nonrecourse
Liability. The determination of whether any distribution by the Partnership is
allocable to the proceeds of a nonrecourse liability of the Partnership shall
be made by the Management Committee under any reasonable method that complies
with Section 1.704-2(h) of the Regulations.
(b) Curative Allocations. The allocations set forth in
Sections 4.1(b) and 4.3(a) (the "Regulatory Allocations") are intended to
comply with certain requirements of Section 1.704-1(b) of the Regulations. The
Partners hereby acknowledge and agree that the Regulatory Allocations may not
be consistent with the manner in which the Partners intend to make Partnership
distributions. Accordingly, the Management Committee is hereby authorized and
directed to make other allocations of Profit, Loss, or Book Depreciation among
the Partners in any reasonable manner that the Management Committee deems
appropriate, in its sole discretion, so as to prevent the Regulatory
Allocations from distorting the manner in which the Partnership distributions
would otherwise be divided among the Partners pursuant to Sections 4.2, 7.4(d)
and 7.4(e). In general, the Partners anticipate that this will be accomplished
by specially allocating other Profits, Losses, or Book Depreciation among the
Partners so that, after such offsetting special allocations are made, the
amount of each Partner's Capital Account will be, to the extent possible, equal
to the Capital Account
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balance such Partner would have had if the Regulatory Allocations were not a
part of this Agreement and all Partnership items had been allocated to the
Partners solely pursuant to Section 4.1(a).
(c) Tax Allocations: Code Section 704(c). In accordance
with Section 704(c) of the Code and the Regulations thereunder, income, gain,
loss, and deduction with respect to any property contributed to the capital of
the Partnership shall, solely for tax purposes, be allocated among the Partners
so as to take account of any variation between the adjusted basis of such
property to the Partnership for federal income tax purposes and the initial
Gross Asset Value of such property (determined in accordance with Section
3.4(a)(iii)(A) hereof). In accordance with the requirements of Section
1.704-1(b)(4)(i) of the Regulations, if the Gross Asset Value of any
Partnership asset is adjusted pursuant to Section 3.4(a)(iii)(B), subsequent
allocations of income, gain, loss, and deduction with respect to such asset
shall take into account of any variation between the adjusted basis of such
asset for federal income tax purposes and the Gross Asset Value of such asset
in the same manner as such variations are taken into account under Section
704(c) of the Code and the Regulations thereunder with respect to property
contributed to the Partnership. Any elections or other decisions relating to
such allocation shall be made by the Management Committee in any manner that
reasonably reflects the purpose and intention of this Agreement. Allocations
pursuant to this Section 4.3(c) are solely for purposes of federal, state, and
local taxes and shall not affect or be taken into account in computing any
Partner's Capital Account or share of Profits, Losses, other items, or
distributions pursuant to this Agreement.
(d) Other Allocation Rules.
(i) For purposes of determining the Profits,
Losses, or any other item allocable to any period (including periods before and
after the admission of a new Partner), Profits, Losses, and any such other item
shall be determined on a daily, monthly, or other basis, as determined and
allocated by the Management Committee using any permissible method under
Section 706 of the Code and the Regulations thereunder.
(ii) For federal income tax purposes, every item
of income, gain, loss, and deduction shall be allocated among the Partners in
accordance with the allocations under Sections 4.1, 4.3(a), 4.3(b), and 4.3(c).
(iii) The Partners are aware of the income tax
consequences of the allocations made by this Section 4.3 and Section 4.1 and
hereby agree to be bound by the provisions of this Section 4.3 and Section 4.1
in reporting their shares of Partnership income and loss for income tax
purposes.
(iv) To the extent permissible under Section 704
of the Code and the Regulations thereunder, in making allocations provided for
in this Section 4.3 and Section 4.1, ordinary income realized by the
Partnership from recapture of previously reported deductions shall
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be allocated to those Partners (or their successors in interest) to whom such
deductions were originally allocated and in proportion to such original
allocations. Any obligation relating to the recapture of previously reported
credits shall be allocated to those Partners (or their successors in interest)
to whom such credits were originally allocated and in proportion to such
original allocations.
(v) It is intended that the allocations in
Sections 4.1, 4.3(a), 4.3(b), and 4.3(c) effect an allocation for federal
income tax purposes consistent with Section 704 of the Code and comply with any
limitations or restrictions therein. The Management Committee shall have
complete discretion to make the allocations pursuant to this Section 4.3 and
Section 4.1 in any reasonable manner consistent with Section 704 of the Code
and to amend the provisions of this Agreement as appropriate to comply with the
Regulations promulgated under Section 704 of the Code, if in the opinion of
counsel to the Partnership, such an amendment is advisable to reflect
allocations among the Partners consistent with those Regulations.
(vi) The Partners agree that their Percentage
Interests represent their interests in Partnership profits for purposes of
allocating excess nonrecourse liabilities pursuant to Section 1.752-3(a)(3) of
the Regulations.
ARTICLE V
MANAGEMENT
5.1 MANAGEMENT OF THE PARTNERSHIP.
(a) Management Committee.
(i) The management and control of the business
and affairs of the Partnership shall be vested in the Partners, who shall
exercise such management and control solely through and by virtue of their
selection of a management committee (the "Management Committee"). Except as
expressly provided herein to the contrary, all decisions with respect to the
management and control of the Partnership that are duly authorized by the
Management Committee shall be binding on the Partnership and each of the
Partners, and no Partner shall have any right or authority to participate in
the management and control of the Partnership other than through the Management
Committee, except as expressly provided otherwise in this Agreement. The
Management Committee shall be composed of three representatives of HIGI and two
representatives of Miracle. The initial members of the Management Committee
are as follows:
HIGI Representatives: Xxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxx
Xxx Xxxxxxxxxx
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Miracle Representatives: Xxxxx Xxxxxx
Xxxxxxx Xxxxxx
Each Partner shall have complete discretion with respect to
the designation of its representatives on the Management Committee and any
change in such representatives shall become effective upon receipt of written
notice thereof by the Partnership and the other Partner.
(ii) A majority of the entire Management Committee
shall constitute a quorum for the transaction of business or any specified item
of business, except that a quorum shall not exist at any meeting unless at
least one representative of each Partner is present at the commencement of such
meeting. If a quorum shall not be present at any meeting of the Management
Committee, the members thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present.
(iii) Except as otherwise provided in subparagraph
(v) of this Section 5.1(a), the Management Committee shall act at meetings
thereof duly convened and held as provided in this Agreement. The vote of a
majority of the members of the Management Committee present at the time of the
vote, if a quorum is present at such time, shall be the act of the Management
Committee.
(iv) Any one or more members of the Management
Committee may participate in a meeting thereof by means of conference telephone
or similar communications equipment allowing all individuals participating in
the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting. Any individual appointed by
a Partner to serve as a member of the Management Committee may, by an
instrument in writing, in such form as the members of the Management Committee
may determine, authorize another individual (including another member of the
Management Committee) as such individual's proxy to act for such member at any
meeting or meetings or by written consent and to vote on behalf of such member;
provided, however, that unless otherwise specified in the written
authorization, such proxy shall be authorized to act for such member only at a
single, specified meeting of the Management Committee, including any
adjournment or adjournments thereof. Any individual authorized to serve as a
proxy for a member shall have a vote on any matter submitted to the Management
Committee equal to the vote of the member for whom such proxy is authorized to
serve.
(v) Any action required or permitted by this
Agreement to be taken by the Management Committee may be taken if a majority of
the members of the Management Committee consent in writing to the adoption of a
resolution authorizing the action. Such resolution and the written consents
thereto shall be filed with the minutes of the proceedings of the Management
Committee.
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(vi) The Management Committee may hold meetings,
both regular and special, either within or without the State of Texas.
(vi) Regular meetings of the Management Committee
may be held without notice at such time and at such place as shall from time to
time be determined by the Management Committee.
(vii) Special meetings of the Management Committee
may be called by the Chairman or the President, or by the Chairman or the
President or Secretary on the written request of either Partner, on two days'
prior notice to each member of the Management Committee.
(b) Compensation. Unless otherwise agreed to by the
Partners, the members of the Management Committee shall not be entitled to
compensation for their services as such. The members of the Management
Committee may be paid their expenses, if any, of attendance at each meeting of
the Management Committee. No such payment shall preclude any member from
serving the Partnership in any other capacity and receiving compensation
therefor.
(c) Notices.
(i) Whenever, under the provisions of this
Agreement, notice is required to be given to any member of the Management
Committee, such notice may be given in writing, (1) by delivery in person, (2)
by telecopy or (3) by mail, addressed to such member, at his address as it
appears on the records of the Partnership, with postage thereon prepaid.
Notices delivered in person shall be deemed given upon receipt, notices
delivered by telecopy shall be deemed given upon receipt of the confirmation
and notices delivered by mail shall be deemed to be given three business days
after the same shall be deposited in the United States mail.
(ii) Whenever notice is required to be given under
the provisions of this Agreement, a waiver thereof in writing, signed by the
Person or Persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
5.2 MANAGING OFFICERS.
(a) General.
(i) The Partnership shall have officers for
purposes of the day-to-day administration of the business of the Partnership.
The officers of the Partnership shall be chosen by the Management Committee,
and shall be a Chairman, a President, a Vice President, a Secretary and a
Treasurer. Other than the Chairman and the President, it shall not be
necessary for officers of the Partnership to be members of the Management
Committee. The Management Committee may also
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choose additional Vice Presidents, and one or more Assistant Secretaries and
Assistant Treasurers. Any number of offices may be held by the same individual.
(ii) The Management Committee may appoint such
other officers and agents as it shall deem necessary, each of whom shall hold
office for such term and shall exercise such powers and perform such duties as
shall be determined from time to time by the Management Committee.
(iii) The compensation, if any, of all officers of
the Partnership shall be fixed by the Management Committee, which compensation
shall be an expense of the Partnership.
(iv) The officers of the Partnership shall hold
office until their successors are chosen and qualify. Any officer may be
removed at any time by the Management Committee. Any vacancy occurring in any
office of the Partnership shall be filled by the Management Committee.
(b) Chairman. The Chairman shall be the chief executive
officer of the Partnership and shall preside at all meetings of the Management
Committee and do and perform such other duties and have such other powers as
the Management Committee may from time to time prescribe. The Chairman's
office shall be held by a representative of HIGI unless otherwise agreed by the
Partners.
(c) President. The President shall be the chief executive
officer of the Partnership (unless there is a Chairman, in which case the
President shall be the chief operating officer), shall preside at all meetings
of the Management Committee if the office of Chairman shall be vacant or at any
such meetings from which the Chairman is absent, shall have general and active
management of the business of the Partnership, shall ensure that all orders and
resolutions of the Management Committee are implemented, and shall perform such
other duties and have such other powers as the Management Committee or the
Chairman may from time to time prescribe. The President's office shall be held
by a representative of HIGI unless otherwise agreed by the Partners.
(d) Vice Presidents. In the absence of the President or
in the event of his inability or refusal to act, the Vice President (or in the
event there be more than one Vice President, the Vice Presidents in the order
designated by the members of the Management Committee, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. The Vice Presidents shall perform
such other duties and have such other powers as the Management Committee or the
President may from time to time prescribe.
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(e) Secretary and Assistant Secretaries.
(i) The Secretary shall attend all meetings of
the Management Committee and record all the proceedings of such meetings in a
book to be kept for that purpose. The Secretary shall give, or cause to be
given, notice of all special meetings of the Management Committee, and shall
perform such other duties and have such other powers as the Management
Committee, the Chairman or the President may from time to time prescribe.
(ii) The Assistant Secretary, or if there be more
than one, the Assistant Secretaries, in the order determined by the Management
Committee (or if there be no such determination, then in the order of their
election) shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Management Committee, the President, or the Secretary may from time to time
prescribe.
(f) Treasurer and Assistant Treasurers.
(i) The Treasurer shall have the custody of
Partnership funds and securities and shall deposit all moneys and other
valuable effects in the name and to the credit of the Partnership in such
depositories as may be designated by the Management Committee.
(ii) The Treasurer shall disburse funds of the
Partnership as ordered by or on behalf of the Management Committee, taking
proper vouchers for each disbursements, and shall render to the President and
the Management Committee, at the Management Committee's regular meetings, or
when the Management Committee so requires, an account of all his transactions
as Treasurer and of the financial condition of the Partnership.
(iii) If required by the Management Committee, the
Treasurer shall give the Partnership a bond, in such sum and with such surety
or sureties as shall be satisfactory to the Management Committee, for the
faithful performance of the duties of his office and for the restoration to the
Partnership, in case of his death, resignation, retirement, or removal from
office, of all books, papers, vouchers, money, and other property of whatever
kind in his possession or under his control belonging to the Partnership.
(iv) The Assistant Treasurer, or if there shall be
more than one, the Assistant Treasurers in the order determined by the
Management Committee (or if there be no such determination, then in the order
of their election) shall, in the absence of the Treasurer or in the event of
his inability or refusal to act, perform the duties and exercise the powers of
the Treasurer and shall perform such other duties and have such other powers as
the Management Committee, the President, or the Treasurer may from time to time
prescribe.
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5.3 CONTRACTS WITH RELATED PARTIES. Services, if any, rendered to
the Partnership by a Partner (or Affiliate of such Partner) shall not
constitute a Capital Contribution and shall not be reimbursable by the
Partnership except as specifically provided in this Section 5.3, or as
otherwise agreed by the Partners. Goods supplied and services rendered by the
Partnership to any Partner or its Affiliates shall not be deemed a return of
capital to such Partner. The Partnership shall purchase goods or services
from, or provide goods or services to, or borrow funds from, any Partners or
their Affiliates only pursuant to a written agreement containing terms approved
by the Management Committee which are no less favorable to the Partnership than
could be obtained form an unaffiliated Person on an arms-length basis.
5.4 TIME DEVOTED TO PARTNERSHIP. The Partners shall, and shall
cause their respective representatives on the Management Committee to, devote
such time to the Partnership as is reasonably necessary to carry out the
provisions of this Agreement. The Partners recognize and agree that HIGI has
no experience or expertise in the design, acquisition, construction, or
operation of a candle manufacturing facility and is entering into this
Agreement based on the representations made to it by Miracle that Miracle has
such experience and expertise. Accordingly, Miracle shall be solely
responsible for advising the Partnership with respect to the design,
acquisition, construction, and operation of the Partnership's candle
manufacturing facility, including without limitation compliance with all
applicable federal, state, and other laws, rules, and regulations.
5.5 OTHER BUSINESSES AND UNDERTAKINGS. Each Partner understands
that the other Partner and its Affiliates may be interested, directly or
indirectly, in various other businesses and undertakings not related to the
Partnership's business. Each Partner also understands that the conduct of the
business of the Partnership may involve business dealings with such other
businesses or undertakings. The Partners hereby agree that the creation of the
Partnership and the assumption by each of the Partners of their duties
hereunder shall be without prejudice to their rights (or the rights of their
Affiliates) to have such other businesses and undertakings and to receive and
enjoy profits or compensation therefrom, and each Partner waives any rights it
might otherwise have to share or participate in such other businesses and
undertakings of the other Partner or its Affiliates. The Partners may engage
in or possess any interest in any other business venture of any nature or
description independently or with others, and neither the Partnership nor the
other Partner shall have any right by virtue of this Agreement in and to such
venture or the income or profits derived therefrom. Each Partner shall give
notice to the other Partner and the Partnership of its interest, or the
interest of any of its Affiliates, in any other business or undertaking that
proposes to enter into any business transactions with the Partnership.
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5.6 SCOPE OF AUTHORITY; INDEMNIFICATION.
(a) Partners.
(i) Neither of the Partners shall, without the
consent of the Management Committee, take any action on behalf of or in the
name of the Partnership, or enter into any commitment or obligation binding
upon the Partnership, except as expressly provided for in this Agreement. Each
Partner shall indemnify and hold harmless the Partnership as well as the other
Partner and its Affiliates, directors and officers from and against any and all
claims, demands, losses, damages, liabilities, lawsuits and other proceedings,
judgments and awards, penalties, and costs and expenses (including but not
limited to reasonable attorneys' fees) (collectively, "Damages") (1) arising
out of or relating to, directly or indirectly, in whole or in part, any breach
of the foregoing provisions by such Partner or its Affiliates or (2) in the
case of Miracle, arising out of or relating to, directly or indirectly, in
whole or in part, the design, construction, and operation of the Partnership's
candle manufacturing facility to be constructed in Laredo, Texas, including
without limitation any violation or failure to comply with any federal, state
or other governmental law, rule or regulation.
(ii) Except as otherwise expressly provided herein
(including, without limitation, the provisions of paragraph (i) of this Section
5.6(a), each Partner agrees to contribute to the satisfaction of any Damages,
and to indemnify and hold harmless the other Partner from and against such
Damages in an amount equal to its Percentage Interest multiplied by the total
amount of such Damages, if such Damages are attributable to any debt,
liability, or obligation of the Partnership that the Partnership is unable to
satisfy and in respect of which a Partner is liable by virtue of its status as
a Partner.
(b) Management Committee, Officer, and Employee
Indemnities.
(i) The Partnership shall indemnify each officer
of the Partnership and each member of the Management Committee (each an
"Indemnified Person"), made or threatened to be made a party to any threatened,
pending or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative by reason of the fact that he is or was a
member of the Management Committee or is or was an officer of the Partnership,
or is or was serving at the request of the Partnership as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust,
or other enterprise, against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit, or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Partnership, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the
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best interests of the Partnership, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) Any indemnification under subparagraph (i) of
this Section 5.6(b) (unless ordered by a court) shall be made by the
Partnership only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the member of the
Management Committee or the officer has met the applicable standard of conduct
set forth in subparagraph (i) of this Section 5.6(b). Such determination shall
be made (1) by the Management Committee by a majority vote of a quorum
consisting of members who were not parties to such action, suit, or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested members so directs, by independent legal counsel in a written
opinion, or (3) by the Partners.
(iii) Expenses incurred by any Indemnified Person
in defending a civil or criminal action, suit, or proceeding may be paid by the
Partnership in advance of the final disposition of such action, suit, or
proceeding as authorized by the Management Committee in the specific case upon
receipt of an undertaking by or on behalf of such member or officer to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Partnership as authorized herein.
(iv) The indemnification provided by this Section
5.6(b) shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any agreement of the Partnership, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to an individual who has ceased to
be a member of the Management Committee or an officer of the Partnership and
shall inure to the benefit of his or her heirs, executors, and administrators.
(v) The Partnership shall have the power to
purchase and maintain insurance on behalf of any individual who is or was a
member of the Management Committee or an officer of the Partnership, or is or
was serving at the request of the Partnership as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against him or her and incurred by
him or her in any such capacity, or arising out of his or her status as such.
(vi) For purposes of this Section 5.6, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a Person with respect to an
employee benefit plan; and references to "serving at the request of the
Partnership" shall include any service as a member of the Management Committee
or as an officer of the Partnership which imposes duties on, or involves
services by, such member or such officer with respect to an employee benefit
plan, its participants, or beneficiaries; and a Person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and
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beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interest of the Partnership" as referred to in
this Section 5.6.
ARTICLE VI
SALE, TRANSFER OR MORTGAGE
6.1 GENERAL.
(a) Transfer Restrictions and Procedures. Each of the
Partners agrees that it will not, directly or indirectly (through the sale,
transfer, pledge, hypothecation, or other disposition of any capital stock of
any subsidiary then owning any Partnership Interest as permitted by
subparagraph (iv) of this Section 6.1(a) or otherwise), sell, transfer, pledge,
hypothecate, or otherwise dispose of all or any part of its Partnership
Interest, without the prior written consent of the other Partner, which consent
may be given or withheld in the sole discretion of such other Partner. Each of
the Partners further agrees that it will not, directly or indirectly (through
the sale, transfer, pledge, hypothecation, or other disposition of any capital
stock of any subsidiary then owning any Partnership Interest as permitted by
subparagraph (iv) of this Section 6.1(a) or otherwise), sell or otherwise
dispose of all or any part of its Partnership Interest, except in accordance
with the following procedures:
(i) Either Partner (the "Initiating Partner")
wishing to dispose of not less than all of its Partnership Interest, shall give
written notice thereof (the "Transfer Notice") to the other Partner (the
"Receiving Partner") specifying the cash purchase price (stated in terms of
price per each 1% of the total Percentage Interest to be sold) at which it is
willing to effect such disposition.
(ii) Not later than 90 days following receipt of
the Transfer Notice, the Receiving Partner shall notify the Initiating Partner
in writing (the "Response Notice") of its election to either (A) purchase the
Initiating Partner's entire Partnership Interest at the cash purchase price
(stated in terms of price per each 1% of the total Percentage Interest to be
purchased) specified in the Transfer Notice, or (B) sell to the Initiating
Partner the Receiving Partner's entire Partnership Interest at a cash purchase
price equal to the same price per each 1% of the total Partnership Interest to
be sold as set forth in the Transfer Notice. A failure by the Receiving
Partner to deliver a Response Notice shall be deemed to be a Response Notice to
purchase the Initiating Partner's entire Partnership Interest at the cash
purchase price set forth in the Transfer Notice, given on the 90th day
following receipt of the Transfer Notice. The Response Notice shall be
irrevocable and shall be binding upon the Initiating Partner and the Receiving
Partner.
(iii) The closing of the purchase of any
Partnership Interest in accordance with the Response Notice shall take place
within 90 days after receipt (or deemed receipt) of such
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Response Notice. The time and date of such closing shall be specified in the
Response Notice furnished pursuant to subparagraph (ii) of this Section 6.1(a).
If a Response Notice is deemed to have been given pursuant to such subparagraph
(ii), the closing shall take place at 10:00 a.m., Central Time, on the 120th
day following receipt of the Transfer Notice. At the closing, the Partner that
is purchasing the Partnership interest shall pay the purchase price therefor by
delivering to the Partner that is selling the Partnership Interest, Federal or
other immediately available funds to the order of such selling Partner.
Concurrently with the delivery of such purchase price, the Partner that is
selling the Partnership interest shall execute or cause to be executed such
instruments of transfer as shall be sufficient to fully vest such Partnership
Interest in the other Partner. The closing shall take place at the principal
executive office of the Partnership or at such other place as may be mutually
agreed upon by the Partners.
(iv) Notwithstanding anything to the contrary in
this Section 6.1(a), either Partner, subject to the prior written consent of
the other Partner, which consent shall not be unreasonably withheld, shall be
entitled to transfer its entire Partnership Interest to a wholly owned
subsidiary of such Partner, provided that such subsidiary agrees in writing to
be bound by the terms of this Agreement to the same extent as if it were
originally a party hereto and provided further that the Partner so assigning or
transferring such Partnership Interest shall guarantee the performance of the
obligations of said wholly owned subsidiary.
(b) Distributions and Allocations in Respect of
Transferred Partnership Interests. If any Partnership Interest is transferred
during any fiscal year in compliance with the provisions of this Article VI,
Profits, Losses, and all other items attributable to the transferred interest
for such period shall be allocated between the transferor and the transferee by
taking into account their varying interests during the period in accordance
with Section 706 of the Code, using any conventions permitted by law and
selected by the Management Committee. All distributions on or before the date
of the transfer shall be made to the transferor. Solely for purposes of making
such allocations and distributions, the Partnership shall recognize the
transfer not later than the end of the calendar month during which it is given
notice of the transfer; provided, however, that if the Partnership does not
receive a notice stating the date the Partnership Interest was transferred and
such other information as the General Partner may reasonably require within 30
days after the end of the fiscal year during which the transfer occurs, then
all of such items shall be allocated, and all distributions shall be made, to
the Person who, according to the books and records of the Partnership, on the
last day of the fiscal year during which the transfer occurs, was the owner of
the Partnership Interest. Neither the Partnership nor any Partner shall incur
any liability for making allocations and distributions in accordance with the
provisions of this Section 6.1(b), whether or not any Partner or the
Partnership has knowledge of any transfer of ownership of any Partnership
Interest.
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ARTICLE VII
DEFAULT AND DISSOLUTION
7.1 EVENTS OF DEFAULT. The occurrence of any of the following
events shall constitute an event of default ("Event of Default") hereunder on
the part of the Partner with respect to which such event occurs:
(i) the failure by a Partner to make a Capital
Contribution, Additional Contribution or Partnership Loan to the Partnership as
required pursuant to the provisions of Sections 3.1, 3.2 and 3.3, respectively,
and such failure has not been remedied with 10 days following receipt of notice
of such failure from the other Partner;
(ii) the violation by a Partner of any of its
obligations under Article VI of this Agreement, and such violation has not been
remedied within 30 days following the receipt of notice of such violation from
the other Partner;
(iii) the institution by a Partner of proceedings
of any nature under any laws of the United States or of any state, whether now
existing or subsequently enacted or amended, for the relief of debtors wherein
such Partner is seeking relief as debtor;
(iv) a general assignment by a Partner for the
benefit of creditors;
(v) the institution by a Partner of a case or
other proceeding under any section or chapter of the federal Bankruptcy Code as
now existing or hereafter amended or becoming effective;
(vi) the institution against a Partner of a case
or other proceeding under any section or chapter of the federal Bankruptcy Code
as now existing or hereafter amended or becoming effective, which proceeding is
not dismissed, stayed, or discharged within a period of 60 days after the
filing thereof or if stayed, which stay is thereafter lifted without a
contemporaneous discharge or dismissal of such proceeding;
(vii) a proposed plan of arrangement or other
action by a Partner's creditors taken as a result of a general meeting of the
creditors of such Partner;
(viii) the appointment of a receiver, custodian,
trustee or like officer, to take possession of assets having a value in excess
of $1,000,000 of a Partner if the pendency of said receivership would
reasonably tend to have a materially adverse effect upon the performance by
said Partner of its obligations under this Agreement; which receivership
remains undischarged for a period of 30 days from the date of its imposition;
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(ix) the admission by a Partner in writing of its
inability to pay its debts as they mature;
(x) the attachment, execution, or other judicial
seizure of all or any substantial part of a Partner's assets or of a Partner's
Partnership Interest, or any part thereof, such attachment, execution, or
seizure being with respect to an amount not less than $1,000,000 and remaining
undismissed or undischarged for a period of 15 days after the levy thereof, if
the occurrence of such attachment, execution, or other judicial seizure would
reasonably tend to have a materially adverse effect upon the performance by
such Partner of its obligations under this Agreement; provided, however, that
said attachment, execution, or seizure shall not constitute an Event of Default
hereunder if such Partner posts a bond sufficient to fully satisfy the amount
of such claim or judgment within 15 days after the levy thereof and the
Partner's assets are thereby released from the lien of such attachment; and
(xi) a material default in performance of or
failure to comply with any other material agreements, obligations, or
undertakings of a Partner contained in this Agreement, and such default has not
been cured within 30 days upon the receipt of notice of such default from the
other Partner (provided, however, that such 30-day period shall be extended for
a reasonable additional period of time if necessary to remedy such default if
such remedy is commenced during such 30-day period and is being pursued
continuously and diligently).
7.2 CAUSES OF TERMINATION OR DISSOLUTION. The Partnership shall
be terminated or dissolved only if:
(a) an Event of Default has occurred and the
Non-Defaulter elects to terminate or dissolve the Partnership as provided in
Section 7.3:
(b) the Partners mutually agree to terminate or dissolve
the Partnership; or
(c) the Partnership by its terms, as set forth in this
Agreement, is terminated.
7.3 ELECTION OF NON-DEFAULTER.
(a) Purchase of Defaulter's Interest. Upon the
occurrence of any Event of Default by either Partner ("Defaulter"), the other
Partner (a "Non-Defaulter") shall have the right to acquire the entire
Partnership Interest of the Defaulter for cash, except as provided in Section
7.3(b), at a price determined pursuant to the appraisal procedure set forth in
Article VIII. In furtherance of such right, the Non-Defaulter may notify the
Defaulter at any time following an Event of Default of its election to
institute the appraisal procedure set forth in Article VIII. Upon receipt of
notice of determination of the net fair market value of the Defaulter's
Partnership Interest, the Non-Defaulter may notify the Defaulter of its
election to purchase the entire Partnership Interest of the
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Defaulter. Notwithstanding the foregoing, in the case of an Event of Default
specified in subparagraph (ii) of Section 7.1(a), nothing herein shall be
construed to limit the right of the Non-Defaulter to seek specific performance
of the Defaulter's obligations under Article VI of this Agreement.
(b) Closing. The closing of any purchase pursuant to
this Section 7.3 shall take place at the principal office of the Partnership,
unless otherwise mutually agreed by the Partners, on a date specified by the
Non- Defaulter that is not less than 10 days following receipt of notice of
determination of the net fair market value of the Defaulter's Partnership
Interest pursuant to Article VIII. Upon the closing of such purchase, the
Non-Defaulter may elect to offset against the purchase price the amount of any
loss, damage, or injury, the amount of which has been established by a final
nonappealable judgment, caused to it by the Event of Default.
(c) Election to Dissolve. If the Non-Defaulter does not
elect to acquire the entire interest of the Defaulter as set forth in Section
7.3(a), the Non-Defaulter may elect to dissolve and terminate the Partnership
pursuant to Section 7.2 by written notice to the Defaulter. The right of the
Non-Defaulter to institute the procedures for purchase of the Defaulter's
Partnership Interest as set forth in this Section 7.3 shall continue until such
Non- Defaulter elects to exercise its right to terminate the Partnership as
provided in this Section 7.3(c).
7.4 PROCEDURE IN DISSOLUTION AND LIQUIDATION.
(a) Winding Up. Upon any dissolution of the Partnership
pursuant to Section 7.2, the Partnership shall immediately commence to wind up
its affairs and the Partners shall proceed with reasonable promptness to
liquidate the business of the Partnership.
(b) Management Rights During Winding Up. During the
period of the winding up of the affairs of the Partnership, the rights and
obligations of the Partners set forth herein with respect to the management of
the Partnership shall continue. For purposes of winding up, the Management
Committee shall continue to act as such and shall make all decisions relating
to the conduct of any business or operations during the winding up period and
to the sale or other disposition of Partnership assets; provided that if the
termination of the Partnership results from an Event of Default, the Defaulter
whether directly or through its representatives on the Management Committee,
shall have no further right to participate in the management or affairs of the
Partnership or to attend Management Committee meetings or vote on decisions by
the Management Committee, but shall nonetheless be bound by all decisions made
by the Non-Defaulter. Each Partner hereby waives any claims it may have
against the Non-Defaulter that may arise out of the management by the
Non-Defaulter of the Partnership after the Event of Default, so long as the
Non-Defaulter acts in good faith.
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(c) Allocation of Profits and Losses.
(i) Profits and Losses of the Partnership
following the date of dissolution shall be determined in accordance with the
provisions of this Agreement and shall be credited or charged to the Capital
Accounts of each Partner in the same manner as Profits and Losses of the
Partnership would have been credited or charged if there were no termination,
dissolution, and liquidation of the Partnership.
(ii) For tax purposes, any taxable gain or any
loss upon the sale, transfer, or other disposition of Partnership assets
following the date of dissolution shall be allocated to the Partners in
accordance with the allocation of profits and losses set forth in subparagraph
(i) of this Section 7.4(c).
(d) Distributions in Liquidation. The assets of the
Partnership shall be applied or distributed in liquidation in the following
order of priority; provided, however, that if a Partner shall have a negative
balance in its Capital Account, such Partner shall immediately, and prior to
any distributions made pursuant to this Section 7.4(d), pay to the Partnership
in cash for distribution as provided in this Section 7.4(d) an amount equal to
the negative balance in said Partner's Capital Account:
(i) In payment of debts and obligations of the
Partnership; and
(ii) To the Partners in payment of any positive
balances remaining in their Capital Accounts as provided in Section
1.704-1(b)(2)(ii)(b)(2) of the Regulations, provided however, that the
Management Committee may place in escrow a reserve of cash or other assets of
the Partnership for payment of contingent liabilities in an amount determined
by the Management Committee to be appropriate for such purposes.
(e) Non-Cash Assets.
(i) Every reasonable effort shall be made to
dispose of the assets of the Partnership so that all distributions may be made
to the Partners in cash. Notwithstanding the foregoing, the Partners agree
that, in the event of liquidation, the particular patents, patent applications,
trademarks, and trade names contributed to the Partnership shall be distributed
to the Partner that contributed such patents, patent applications, trademarks,
or trade names, and shall be valued at an amount equal to the then current
Gross Asset Value of such patents, patent applications, trademarks, or trade
names, as determined by the Management Committee.
(ii) If the Partnership makes distributions in
kind to the Partners in connection with the liquidation of the Partnership, for
purposes of determining the Capital Account balances of the Partners, the
Partnership shall be deemed to have sold the assets to be distributed in
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kind to a third party for cash at their Gross Asset Value, as determined by the
Management Committee.
7.5 DISPOSITION OF DOCUMENTS AND RECORDS. All documents and
records of the Partnership including, without limitation, all financial
records, vouchers, canceled checks, and bank statements, shall be delivered to
HIGI upon termination of the Partnership. Unless otherwise approved by the
other Partner, HIGI shall retain such documents and records for a period of not
less than seven years and shall make such documents and records available
during normal business hours to the other Partner for inspection and copying at
the other Partner's cost and expense. If either Partner for any reason ceases
as provided herein to be a Partner at any time prior to termination of the
Partnership, and the Partnership is continued without the such Partner, the
other Partner shall maintain the then-existing documents and records of the
Partnership for a period of not less than seven years thereafter; provided,
however, that if there is an audit or threat of audit, such documents and
records shall be retained until the audit is completed and any tax liability
finally determined. All documents and records as maintained shall be available
for inspection, examination and copying by the withdrawing Partner upon
reasonable notice and at reasonable times.
ARTICLE VIII
APPRAISAL
Whenever Article VII provides for the valuation of a
Partnership Interest to be purchased or sold, the Partners Interest shall first
attempt to agree upon the "net fair market value" of the Partnership Interest
to be purchased or sold. The "net fair market value" of the Partnership
Interest shall mean the cash price at which a sophisticated purchaser would
purchase, and a sophisticated seller would sell, such Partnership Interest, (a)
with neither party being under any compulsion to effect such transaction, (b)
with both parties being reasonably informed as to all material facts and (c)
after application of any appropriate lack of marketability and minority
interest discounts.
If the Partners are unable to mutually agree upon the net fair
market value of the Partnership Interest to be sold or purchased within 10 days
of the date the appraisal procedure of this Article VIII is instituted as
provided in this Agreement, the Partners shall then attempt to agree upon the
appointment of three disinterested appraisers who shall be members of the
American Institute of Appraisers. If the Partners are unable to agree upon the
selection of three appraisers within 20 days of the date the appraisal
procedure is instituted as provided in this Agreement, then each Partner shall,
within five days thereafter, select a single appraiser so qualified and such
two appraisers shall select a third appraiser so qualified. Each appraiser so
selected shall furnish the Partners with a written appraisal within 30 days of
his selection, setting forth his determination of the net fair market value of
the Partnership Interest to be purchased or sold. The average of the two
closest valuations of such appraisers shall be treated as the net fair market
value of the Partnership Interest to be purchased or sold and such amount shall
be final and binding on the Partners. The cost of the
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appraisal shall be an expense of the Partnership, except that if the appraisal
is instituted pursuant to Section 7.3(a), the cost shall be at the expense of
the Defaulter.
ARTICLE IX
FINANCIAL MATTERS
9.1 BOOKS, RECORDS, ACCOUNTING, AND REPORTS.
(a) Records and Accounting. The Treasurer of the
Partnership shall keep or cause to be kept appropriate books and records with
respect to the Partnership's business, which shall at all times be kept at the
principal office of the Partnership or such other office as the Management
Committee may designate for such purpose. The books of the Partnership shall
be maintained for financial reporting purposes on the accrual basis using
generally accepted accounting principles, or on the cash basis, as the
Management Committee shall determine in its sole discretion, in accordance with
applicable law.
(b) Fiscal Year. The fiscal year of the Partnership for
tax and accounting purposes shall be the calendar year unless otherwise
determined by the Management Committee and allowable under the Code.
9.2 TAX MATTERS.
(a) Preparation of Tax Returns. The Treasurer of the
Partnership shall arrange for the preparation and timely filing of all returns
of Partnership income, gain, loss, deduction, credit, and other items necessary
for federal, state, and local income tax purposes and shall use all reasonable
efforts to furnish to the Partners within 10 days after the Partnership returns
are filed the tax information reasonably required for federal and state income
tax reporting purposes. The classification, realization, and recognition of
income, gain, loss, deduction, credit, and other items shall be on the cash or
accrual method of accounting for federal income tax purposes, as the Management
Committee shall determine.
(b) Tax Elections. Except as otherwise provided herein,
the Management Committee shall determine whether to make any available tax
election.
(c) Tax Controversies. Subject to the provisions hereof,
HIGI is designated the Tax Matters Partner (as defined in Section 6231(a)(7) of
the Code), and is authorized and required to represent the Partnership, at the
Partnership's expense, in connection with all examinations of the Partnership's
affairs by tax authorities, including resulting administrative and judicial
proceedings, and to expend Partnership funds for professional services and
costs associated therewith. Miracle shall cooperate with HIGI and do or
refrain from doing any or all things reasonably requested by
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HIGI to conduct such proceedings. Miracle may participate in such
administrative proceedings at the Partnership level, but any expenses incurred
by Miracle in connection therewith shall not be deemed a Partnership expense,
but shall be paid by Miracle.
ARTICLE X
GENERAL PROVISIONS
10.1 NOTICES.
(a) Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows (or at such other
address as may be substituted by notice given as herein provided):
If to HIGI, to: Home Interiors and Gifts, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Telecopier: (000) 000-0000
With a copy (which shall
not constitute notice) to: Gardere & Xxxxx, L.L.P.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopier: (000) 000-0000
If to Miracle, to: Miracle Candle Company
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
(b) Any notice or communication hereunder shall be deemed
to have been given or made as of the date so delivered if personally delivered;
when the confirmation is received, if telecopied; and three business days after
mailing if sent by registered or certified mail.
10.2 TITLES AND CAPTIONS. All article and section titles and
captions in this Agreement are for convenience only, shall not be deemed part
of this Agreement, and in no way shall define, limit, extend, or describe the
scope or intent of any provisions hereof. Except as specifically
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provided otherwise, references to "Articles" and "Sections" are to Articles and
Sections of this Agreement.
10.3 PRONOUNS AND PLURALS. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs
shall include the plural and vice versa.
10.4 FURTHER ACTION. The parties shall execute all documents,
provide all information, and take or refrain from taking all actions as may be
necessary or appropriate to achieve the purposes of this Agreement.
10.5 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives, and permitted assigns.
10.6 INTEGRATION. This Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and supersedes
all prior agreements and understandings pertaining thereto.
10.7 CREDITORS. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the Partnership.
10.8 WAIVER. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement, or
condition. Each Partner expressly waives any right that he might have to
require a partition of any Partnership property or a dissolution of the
Partnership, except as otherwise provided in this Agreement.
10.9 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which together shall constitute one agreement binding on all the parties
hereto, notwithstanding that all parties are not signatories to the original or
the same counterpart.
10.10 APPLICABLE LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of Texas, without regard
to the principles of conflicts of law. The Partners acknowledge and agree that
this Agreement and the obligations and undertakings of the parties hereunder
will be performable in Dallas, Dallas County, Texas. If any action is brought
to enforce or interpret this Agreement, venue for such action shall be in
Dallas County, Texas, and each Partner expressly agrees to the personal
jurisdiction and venue of the federal and state courts located in Dallas
County, Texas.
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10.11 INVALIDITY OF PROVISIONS. If any provision of this Agreement
is declared or found to be illegal, unenforceable, or void, in whole or in
part, then the parties shall be relieved of all obligations arising under that
provision, but only to the extent that it is illegal, unenforceable, or void.
It is the intent and agreement of the parties that this Agreement shall be
deemed amended by modifying such provision to the extent necessary to make it
legal and enforceable while preserving its intent or, if that is not possible,
by substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
10.12 AMENDMENT. This Agreement may not be amended, altered, or
modified, except by a writing signed by a duly authorized representative of
both Partners.
10.13 ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the Partners and any prior understanding and agreements
between them respecting the subject matter of this Agreement.
10.14 CONFIDENTIAL INFORMATION. All confidential information
which each of the Partners may obtain during the term of this Agreement
relating to the financial condition, results or operations, business,
properties, assets, liabilities, or future prospects of the Partnership or of
any customer or supplier of the Partnership, shall not be published, disclosed,
or made accessible by either Partner or any of its personnel, representatives,
or agents to any other Person either during or after the term of this Agreement
or used by either Partner, except for the benefit of the Partnership. Each
Partner agrees that, upon termination of its status as a Partner, all
documents, records, notebooks, manuals, and similar repositories containing any
information regarding the business of the Partnership and its customers and
prospects, including all copies thereof, then in its possession, whether
prepared by it or others, will be the property of the Partnership and will be
left with or returned to the Partnership.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of December 14, 1998.
HOME INTERIORS & GIFTS, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------------
Title: CEO
-----------------------------------------
MIRACLE CANDLE COMPANY
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Title: President
-----------------------------------------
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EXHIBIT A
Partner Percentage Interest
------- -------------------
HIGI 60%
Miracle 40%
41
EXHIBIT B
DESCRIPTION OF PROPERTY INITIALLY
CONTRIBUTED BY THE PARTNERS
1. Contributed by HIGI:
(a) $3,088,920 in cash
(b) Equipment:
HI COST @ 60% $3,624,247
EQUIPMENT FROM HI
Candle Conveyor Line $ 148,450
4 - 12,000 gal Storage Tanks $ 70,399
6 - 500 gal Stainless Steel Tanks $ 42,713
Wick Coater & Wick Sustainer $ 36,512
Wick Machine $ 18,621
Boiler & Equipment $ 34,455
Geneve Drive Index Machine $ 4,245
Label Conveyor $ 2,332
Hot Melt Glue Machine $ 4,896
Label Applicator $ 7,219
Stretchwrap Machine $ 11,048
200' of Conveyor Frames $ 6,629
Dryer Unit $ 5,674
Steam, Wax Lines, Hook up $ 80,082
Catwalk, frame & stairs $ 15,725
Pack Off Conveyor $ 2,052
Pipe for Air Lines $ 1,417
4 - Used Stainless Steel Tanks $ 1,125
Painting 200' of Conveyor Frame $ 540
Parts & Motors for conveyor equipment $ 41,193
Total Equipment Cost $ 535,327
2. Contributed by Miracle:
(a) $2,416,165 in cash
(b) Non-exclusive, paid-up licenses covering all formulas and
other proprietary information now owned by Miracle relating to
its candle making operations.
(c) Non-exclusive, paid-up licenses covering all computer software
developed by Miracle and used in its candle making operations.
