AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF REPUBLIC SERVICES OF GEORGIA, LIMITED PARTNERSHIP
Exhibit 3.791
AMENDED AND RESTATED
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
REPUBLIC SERVICES OF GEORGIA, LIMITED PARTNERSHIP
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
REPUBLIC SERVICES OF GEORGIA, LIMITED PARTNERSHIP
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of REPUBLIC SERVICES OF
GEORGIA, LIMITED PARTNERSHIP is made as of this 14th day of March, 2002, by and
among REPUBLIC SERVICES OF GEORGIA GP, LLC, a Delaware limited liability company (the
“General Partner”), REPUBLIC SERVICES OF GEORGIA LP, LLC, a Delaware limited liability
company (the “Initial Limited Partner”) amending the original Agreement of Limited
Partnership dated December 2, 1999, and the Persons who become limited partners of the
Partnership in accordance with the provisions hereof and whose names are set forth as
Limited Partners on Schedule A attached hereto.
WITNESSETH:
WHEREAS, the General Partner has heretofore formed the Partnership by filing a
Certificate of Limited Partnership with the office of the Secretary of State of the State of
Delaware on December 2,1999; and
WHEREAS, the parties hereto desire to provide for the governance of the Partnership and
to set forth in detail their respective rights and duties relating to the Partnership.
NOW, THEREFORE, in consideration of the mutual promises and obligations contained
herein, the parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions. Unless the context otherwise requires, the terms defined in
this Article I shall, for the purposes of this Agreement, have the meanings herein
specified.
“Act”
means the Delaware Revised Uniform Limited Partnership Act, 6
Del.C. Section
17-101, et seq., as amended from time to time.
“Additional Units” has the meaning set forth in Section 4.03(a) hereof.
“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
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“control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
“Agreement” means this Agreement of Limited Partnership of the Partnership, as amended,
modified, supplemented or restated from time to time.
“Bankruptcy” means, with respect to any Partner, (i) the filing by a Partner of a
voluntary petition seeking liquidation, reorganization, arrangement or readjustment, in any
form, of its debts under Title 11 of the United States Code (or corresponding provisions of
future laws) or any other federal or state insolvency law, or the filing by a Partner of an
answer consenting to or acquiescing in any such petition, (ii) the making by a Partner of
any assignment for the benefit of its creditors or the admission by a Partner in writing of
its inability to pay its debts as they mature, (iii) the filing of an involuntary petition
under Title 11 of the United States Code (or corresponding provisions of future laws), an
application for the appointment of a receiver for the assets of a Partner, or an involuntary
petition seeking liquidation, reorganization, arrangement or readjustment of its debts under
any other federal or state insolvency law, provided that the same shall not have been
vacated, set aside or stayed within a sixty (60) day period after the occurrence of such
event, or (iv) the entry against it of a final and nonappealable order for relief under any
bankruptcy, insolvency or similar law now or hereafter in effect.
“Capital Account” means, with respect to any Partner, the account maintained for such
Partner in accordance with the provisions of Section 4.05 hereof.
“Capital Contribution” means, with respect to any Partner, the aggregate amount of
money contributed to the Partnership by such Partner pursuant to Sections 4.01, 4.02, 4.03 and
4.04 hereof.
“Certificate of Limited Partnership” means the Certificate of Limited Partnership and
any and all amendments thereto and restatements thereof filed on behalf of the Partnership
with the office of the Secretary of State of the State of Delaware.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any
corresponding federal tax statute enacted after the date of this Agreement. A reference to a
specific section of the Code refers not only to such
specific section but also to any corresponding provision of any federal tax statute
enacted after the date of this Agreement, as such specific section or such corresponding
provision is in effect on the date of application of the provisions of this Agreement
containing such reference.
“Covered Person” has the meaning set forth in Section 12.01 (a) hereof.
“Disabling Conduct” shall mean conduct that constitutes fraud, willful misconduct, bad
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faith or gross negligence.
“General Partner” means Republic Services of Georgia GP, LLC, a Delaware limited
liability company, and includes any Person who becomes an additional or successor general
partner of the Partnership pursuant to the provisions of this Agreement.
“Indemnified Person” has the meaning set forth in Section 12.02(a) hereof.
“Initial Limited Partner” means Republic Services of Georgia LP, LLC, a Delaware
limited liability company, in its capacity as a limited partner of the Partnership.
“Liquidating Trustee” means the General Partner, or if there is no General Partner, a
Person or Persons who may be approved by a Majority Vote.
“Limited Partner” means any Person named as a limited partner of the Partnership on
Schedule A attached hereto and includes any Person admitted as an additional limited partner
of the Partnership or a substituted limited partner of the Partnership pursuant to the
provisions of this Agreement, and “Limited Partners” means two (2) or more of such Persons
when acting in their capacities as limited partners of the Partnership.
“Majority Vote” means the written approval of, or the affirmative vote by, the holders
of a majority of the Outstanding Units.
“Net Cash Flow” means, for each fiscal year or other period of the Partnership, the
gross cash receipts of the Partnership from all sources, but excluding all Capital
Contributions and any amounts that are held by the Partnership as a collection agent or in
trust for others or that are otherwise not unconditionally available to the Partnership,
less all amounts paid by or for the account of the Partnership during the same fiscal year
or period (including, without limitation, payments of principal and interest on any
Partnership indebtedness), and less any amounts determined by the General Partner to be
necessary to provide a reasonable reserve for working-capital needs or to provide funds
for any other contingencies of the Partnership. Net Cash Flow shall be determined in
accordance with generally accepted accounting principles.
“Outstanding Units” means the number of Units shown on the books and records of the
Partnership to be outstanding other than Units held by the Partnership; provided, however,
that for purposes of a written approval or affirmative vote required to take any action
hereunder, the number of Outstanding Units shall not include Units held by an assignee who
has not been admitted as a Limited Partner pursuant to the terms of this Agreement.
“Partner” means any General Partner or Limited Partner, and “Partners” means two (2) or
more such Persons.
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“Partnership” means Republic Services of Georgia, Limited Partnership, a Delaware
limited partnership, the limited partnership heretofore formed and continued under and
pursuant to the Act and this Agreement.
“Person” includes any individual, corporation, association, partnership (general or
limited), joint venture, trust, estate, limited liability company, or other legal entity or
organization.
“Profits” and “Losses” means, for each fiscal year or other period, an amount equal to
the Partnership’s taxable income or loss for such year or other 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).
“Record Date” means the date established by the General Partner as the record date for
purposes of any entitlement hereunder.
“Record Holder” means the Limited Partner or assignee in whose name a Unit is
registered on the books and records of the Partnership and, as applied to the General
Partner’s interest in the Partnership, the owner thereof, in each case as of the close of
business on any Record Date.
“Substituted Limited Partner” means a Person who is admitted to the Partnership as a
Limited Partner pursuant to this Agreement in place of a Limited Partner or an assignee, and
who is named as a Limited Partner on Schedule A attached hereto.
“Successor” means any Person who becomes (i) an assignee of a General Partner’s
interest in the Partnership, or part thereof (whether or not such assignee
becomes an additional or successor General Partner pursuant to this Agreement), (ii) an
assignee of a Limited Partner’s interest in the Partnership, or part thereof (whether or not
such assignee becomes a Limited Partner pursuant to this Agreement), or (iii) an assignee of
a Successor.
“Tax Matters Partner” has the meaning set forth in Section 10.06(a) hereof.
“Term” has the meaning set forth in Section 2.08 hereof.
“Treasury Regulations” means the income-tax regulations promulgated under the Code, as
such regulations may be amended from time to time (including corresponding provisions of
succeeding regulations).
“Unit” means an interest of a Limited Partner or an assignee in the Partnership
representing such fractional part of the interests of all Limited Partners or assignees
pursuant to this Agreement as is equal to the quotient of one divided by the number of
Outstanding Units.
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ARTICLE II
CONTINUATION AND PURPOSES
Section 2.01. Continuation. The parties hereto hereby continue the Partnership as a
limited partnership under and pursuant to the provisions of the Act and agree that the
rights, duties and liabilities of the Partners shall be as provided in the Act, except as
otherwise provided herein.
Section 2.02. Name. The name of the Partnership heretofore formed and continued hereby
is “Republic Services of Georgia, Limited Partnership”, unless and until the name of the
Partnership is changed by the General Partner, in its sole discretion, and an appropriate
amendment to the Certificate of Limited Partnership is filed as required by the Act. The
Partnership’s businesses may be conducted under the name of the Partnership or any other
name or names deemed advisable by the General Partner, including the name of the General
Partner or any Affiliate thereof. The words “Limited Partnership,” “L.P.” or similar words
or letters shall be included in the Partnership’s name where necessary for the purposes of
complying with the laws of any jurisdiction that so requires.
Section 2.03. Principal Place of Business. The principal place of business of the
Partnership shall be located at 000 Xxx Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000. The General
Partner may hereafter change the principal place of business of the Partnership to such
other place or places as the General Partner may determine from time to time in its sole
discretion. The General Partner shall give notice of any such change to the Limited
Partners. The Partnership may maintain such other offices at such other places as the
General Partner deems advisable.
Section 2.04. Registered Office. The address of the registered office of the
Partnership in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
Section 2.05. Registered Agent. The Partnership’s registered agent for service of
process on the Partnership in the State of Delaware is the Corporation Trust Company.
Section 2.06. Purposes. The purpose and business of the Partnership shall be any
businesses which may lawfully be conducted by a limited partnership formed pursuant to the
Act, including primarily, but without limitation, integrated solid waste services; the
carrying on of any business relating thereto or arising therefrom; and anything incidental
or necessary to the foregoing.
Section 2.07. Powers. The Partnership shall have the power to do any and all acts
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necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of
the purposes and business described herein and for the protection and benefit of the Partnership,
and shall have, without limitation, any and all of the powers that may be exercised on behalf of the
Partnership by the General Partner pursuant to Article VIII hereof. The Partnership, and the
General Partner on behalf of the Partnership, may enter into and perform any contracts necessary to
carry out the business of the Partnership without any further act, vote or approval of any Partner
notwithstanding any other provision of this Agreement, the Act or other applicable law, rule or
regulation. The General Partner is hereby authorized to enter into the agreements described in the
preceding sentence on behalf of the Partnership, but such authorization shall not be deemed a
restriction on the power of the General Partner to enter into other agreements on behalf of the
Partnership.
Section 2.08. Term. The term of the Partnership (the“Term”) commenced on the date the
Certificate of Limited Partnership was filed in the office of the Secretary of State of the
State of Delaware and shall continue until the 2nd day of December 2020 unless dissolved
before such date in accordance with the provisions of this Agreement or extended beyond
December 2, 2020 pursuant to a majority Vote and the consent of the General Partner.
ARTICLE III
NAMES AND ADDRESSES OF PARTNERS
Section 3.01. General Partner. The name and mailing address of the General Partner are
set forth on Schedule A attached hereto and made a part hereof.
Section 3.02. Limited Partners. The names and addresses of the Limited Partners are set
forth on Schedule A attached hereto and made a part hereof. A Person shall be deemed
admitted as a Limited Partner at the time such Person (i) executes this Agreement or a
counterpart of this Agreement and (ii) is named as a Limited Partner on Schedule A attached
hereto. Any reference in this Agreement to Schedule A shall be deemed to be a reference to
Schedule A as amended and in effect from time to time.
ARTICLE IV
CAPITAL CONTRIBUTIONS,
SALE OF UNITS, AND CAPITAL ACCOUNTS
SALE OF UNITS, AND CAPITAL ACCOUNTS
Section 4.01. General Partner Initial Capital Contributions. The General Partner has
contributed in cash to the capital of the Partnership the amount set forth opposite the
General Partner’s name on Schedule A attached hereto. Such amount constitutes the agreed
value of the contribution made by the General Partner.
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Section 4.02. Limited Partner Initial Capital Contributions. Each Limited Partner
has contributed in cash to the capital of the Partnership the amount set forth opposite the
Limited Partner’s name on Schedule Aattached hereto. Such amount constitutes the agreed
value of the contribution made by each Limited Partner.
Section 4.03. Sale of Additional Limited Partner Interests.
(a) The General Partner and the Partnership are hereby authorized to raise
additional Partnership capital by offering and selling, or causing to be offered
and sold, additional limited partner interests in the Partnership (the “Additional
Units”) in such amounts and on such terms as the General Partner in its sole
discretion may determine. Each Person who subscribes for any of the Additional
Units shall be admitted as a Limited Partner at the time such Person (i) executes
this Agreement or a counterpart of this Agreement and (ii) is named as a Limited
Partner on Schedule A attached hereto. Each such Person shall pay in cash to the
Partnership, as its Capital Contribution, the purchase price for such Additional
Units upon its subscription therefor.
(b) The General Partner, in its individual capacity, may purchase for cash such
number of Additional Units as the General Partner, in its sole discretion, may
desire to purchase. Each Additional Unit held by the General Partner shall
represent an interest in the Partnership as a Limited Partner that shall include
all rights and obligations of a Limited Partner. As the holder of Units the General
Partner shall be admitted to the Partnership as a limited partner of the
Partnership.
Section 4.04. Additional Capital Contributions.
(a) If the General Partner determines, in its sole discretion, that the
Partnership requires additional capital contributions from the Partners, then
written notice thereof shall promptly be given to all Partners. Upon the date
specified in such notice, which date shall not be less than fifteen (15) days after
the date such notice is delivered or mailed, as the case may be, in accordance with
Section 16.01 hereof, the Partners shall contribute to the Partnership in cash
their pro rata share, based on their respective Capital Contributions, of the total
amount of additional capital required by the Partnership.
(b) No Limited Partner shall be required to make any contribution to the
capital of the Partnership other than the Capital Contribution required to be made
by such Limited Partner pursuant to Sections 4.02, 4.03 or 4.04(a) hereof.
Section 4.05. Capital Accounts.
(a) An individual Capital Account shall be established and maintained for each
Partner and each Successor who hereafter owns an interest in the Partnership. The
original Capital Account established for any Successor shall be in the same amount
as, and
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shall replace, the Capital Account of the Person whom such Successor succeeds, and, for
purposes of this Agreement, such Successor shall be deemed to have made the Capital Contribution
of the Person whom such Successor succeeds. To the extent a Successor acquires less than the entire
interest in the Partnership of the Person it succeeds, the original Capital Account of such
Successor and its Capital Contribution shall be in proportion to the interest it acquires, and the
Capital Account of the Person who retains a partial interest in the Partnership, and the amount of
its Capital Contribution, shall be reduced in proportion to the interest it retains.
(b) A separate Capital Account shall be established for each Partner on the books of
the Partnership on the date on which such Partner makes its Initial Capital Contribution, as
provided in Sections 4.01 and 4.02 hereof. The foregoing provisions and other provisions of
this Agreement relating to the maintenance of Capital Accounts are intended to comply with
Sections 1.704-1 (b) and 1.704-2 of the Treasury Regulations and shall be interpreted and
applied in a manner consistent with the Treasury Regulations.
Section 4.06. Status of Capital Contributions.
(a) Except as otherwise provided in this Agreement, the amount of a Partner’s
or a Successor’s Capital Contribution may be returned to it, in whole or in part,
at any time, but only upon (i) the consent of the General Partner (which consent
the General Partner may withhold in its sole discretion), and (ii) the approval of
a majority in interest in the capital of the Partnership among all Partners. Any
such return of Capital Contribution shall be pro rata to all Partners and
Successors in accordance with their then proportionate interests in Partnership
capital. Notwithstanding the foregoing, no return of a Partner’s or a Successor’s
Capital Contribution shall be made hereunder if such distribution would not comply
with the requirements of Section 17-607 of the Act or other applicable law. Under
circumstances requiring a return of any Capital Contribution, no Partner or
Successor shall have the right to
demand or receive property other than cash except as may be specifically
provided in this Agreement.
(b) No Partner or Successor shall receive any interest, salary, or drawing
with respect to its Capital Contribution or its Capital Account or for services
rendered on behalf of the Partnership or otherwise in its capacity as a Partner or
Successor, except as otherwise specifically provided in this Agreement.
(c) Except as provided in the Act or in this Agreement, no Limited Partner
shall be liable for the debts, liabilities, contracts or any other obligations of
the Partnership. Except as provided in the Act or in this Agreement, a Limited
Partner shall be liable only to make its Capital Contribution pursuant to Sections
4.02,4.03 and 4.04(a) hereof and shall not be required to lend any funds to the
Partnership and, after its Capital Contribution has been paid pursuant to Sections
4.02. 4.03 and 4.04(a) hereof, to make any additional Capital
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Contribution to the Partnership. No General Partner shall have any personal liability for the
repayment of any Capital Contribution of any Limited Partner.
Section 4.07. Advances. If any Partner or Successor shall advance any funds to the
Partnership in excess of its Capital Contribution, the amount of such advance shall neither
increase its Capital Account nor entitle it to any increase in its share of the
distributions of the Partnership. The amount of any such advance shall be a debt obligation
of the Partnership to such Partner or Successor and shall be repaid to it by the Partnership
with such interest and upon such other terms and conditions as shall be mutually determined
by such Partner or Successor and the General Partner. Any such advance shall be payable and
collectible only out of the Partnership assets, and the Partners shall not be personally
obligated to repay any part thereof. No Person who makes any nonrecourse loan to the
Partnership shall have or acquire, as a result of making such loan, any direct or indirect
interest in the profits, capital, or property of the Partnership, other than as a secured
creditor.
ARTICLE V
ALLOCATIONS
Section 5.01. Profits. Profits for any fiscal year shall be allocated to the Partners
in proportion to the Partnership Interests in effect at the end of the fiscal year.
Section 5.02. Losses. Losses for any fiscal year shall be allocated to the Partners in
proportion to the Partnership Interests in effect at the end of the fiscal year.
ARTICLE VI
DISTRIBUTIONS
Section 6.01. Net Cash Flow. Except as otherwise provided in Article XIII hereof
(relating to the dissolution of the Partnership), any distribution of the Net Cash Flow of
the Partnership during any fiscal year of the Partnership shall be made to the Partners in shares proportionate to their respective Capital Contributions.
Section 6.02. Distribution Rules.
(a) All distributions pursuant to Section 6.01 hereof shall be at such times
and in such amounts as shall be determined by the General Partner, in its sole
discretion.
(b) Any distributions made by the Partnership pursuant to Section 6.01 hereof
shall be made only in cash.
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Section 6.03. Restricted Distributions. Notwithstanding any provision to contrary
contained in this Agreement, the Partnership, and the General Partner on behalf of the
Partnership, shall not make a distribution to any Partner on account of its interest in the
Partnership if such distribution would violate Section 17-607 of the Act or other applicable
law.
ARTICLE VII
REIMBURSEMENT OF EXPENSES TO GENERAL PARTNER
Section 7.01. Partnership Expenses. The Partnership shall reimburse the General
Partner for all ordinary and reasonably necessary out-of-pocket expenses incurred by the
General Partner on behalf of the Partnership.
ARTICLE VIII
MANAGEMENT
Section 8.01. Management and Control of the Partnership. The General Partner shall have
full, exclusive and complete discretion to manage and control the businesses and affairs
of the Partnership, to make all decisions affecting the businesses and affairs of the
Partnership and to take all such actions as it deems necessary or appropriate to accomplish
the purpose of the Partnership as set forth herein. No Limited Partner or assignee, as such,
shall have any authority, right or power to bind the Partnership or to manage or control, or
to participate in the management or control of, the businesses and affairs of the
Partnership in any manner whatsoever.
Section 8.02. Powers of General Partner. Except as otherwise expressly provided herein,
the General Partner (acting on behalf of the Partnership), shall have the right, power and
authority, in the management of the businesses and affairs of the Partnership, to do or
cause to be done any and all acts, at the expense of the Partnership, as the case may be,
deemed by the General Partner to be necessary or appropriate to effectuate the businesses,
purposes and objectives of the Partnership. The power and authority of the General Partner
shall include, without limitation, the power and authority:
(1) To acquire, own, lease, sublease, manage, finance, hold, deal in,
request, re-zoning of, control or dispose of any interest or rights in
personal property or real
property,
(2) To negotiate, enter into, renegotiate, extend, renew, terminate,
modify, amend, waive, execute, acknowledge or take any other action with
respect to any
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lease, contract or security agreement in respect of any assets of the Partnership;
(3) To pay, collect, compromise, litigate, arbitrate, or otherwise
adjust or settle any and all other claims or demands of or against the
Partnership or to hold such proceeds against the payment of contingent
liabilities;
(4) To borrow money or to obtain credit in such amounts, at such rate
of interest and upon such other terms and conditions as the General
Partner deems appropriate, recourse or nonrecourse, from banks, other
lending institutions or any other Person, including the Partners, and
pursuant to indentures, loan agreements or any other type of instrument,
for any purpose of the Partnership and to secure payment of the principal
of any such indebtedness and the interest thereon by mortgage, pledge,
conveyance or assignment in trust of or grant security interest in the
whole or any part of any or all of the property and assets of the
Partnership;
(5) To make, execute, assign, acknowledge and file on behalf of the
Partnership any and all documents or instruments of any kind which the
General Partner may deem necessary or appropriate in carrying out the
purposes and business of the Partnership; and any Person dealing with the
General Partner shall not be required to determine or inquire into its
authority or power to bind the Partnership or to execute, acknowledge or
deliver any and all documents in connection therewith;
(6) To assume obligations, enter into contracts, including contracts
of guaranty or suretyship, incur liabilities, lend money and otherwise use
the credit of the Partnership, and to secure any and all obligations,
contracts or liabilities of the Partnership by mortgage, pledge or other
encumbrance of all or any part of the property and income of the
Partnership;
(7) To invest funds of the Partnership;
(8) To employ and engage suitable agents, employees, advisors,
consultants and counsel (including any custodian, investment advisor,
accountant, attorney, corporate fiduciary, bank or other reputable
financial institution, or any other agents, employees or Persons who may
serve in such capacity for the General Partner or any Affiliate of the
General Partner) to carry out any activities that the General Partner is
authorized or required to carry out under this Agreement (subject to the
supervision and control of the General Partner), including, without
limitation, a Person who may be engaged to undertake some or all of the
general management, property management, financial accounting and
recordkeeping or other duties of the General Partner and to indemnify such
Persons against liabilities incurred by them in acting in such capacity as
on behalf of the Partnership;
(9) To employ and retain Persons as may be necessary or appropriate
for the conduct of the Partnership’s businesses (subject to the
supervision and
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control of the General Partner), including employees and agents who may be designated as
officers with titles including but not limited to “chairman,” “president,” “vice president,”
“treasurer,” “secretary,” “general manager,” “director” and “chief financial officer,” as and to
the extent authorized by the General Partner;
(10) To register, qualify, list or report, or cause to be registered,
qualified, listed or reported, this Agreement, the Units issued in
connection herewith or the Partnership pursuant to the Securities Act of
1933, the Exchange Act, any other securities laws of the United States,
the securities laws of any State of the United States, the laws of any
other jurisdiction, the laws of any securities exchange or pursuant to an
automated quotation system of a registered securities association as the
General Partner deems appropriate;
(11) To qualify the Partnership to do business in any state,
territory, dependency or foreign country;
(12) To sell or dispose of all or a portion of the Partnership’s
assets and/or businesses for the benefit of the Partners at the times and
on terms determined by the General Partner, in its sole discretion;
(13) To form or cause to be formed, and to own the stock of, one or
more corporations, and to form or cause to be formed and to participate in
partnerships, joint ventures,
limited liability companies, trusts and other entities; and
(14) To possess and exercise any additional rights and powers of a
General Partner under the partnership laws of the State of Delaware,
including, without limitation, the Act and the Delaware Uniform
Partnership Law (and any other applicable laws, to the extent not
expressly prohibited by this Agreement).
The expression of any power or authority of the General Partner in this Agreement shall
not in any way limit or exclude any other power or authority which is not specifically or
expressly set forth in this Agreement. Notwithstanding any of the foregoing, the Partnership
shall be operated in such a manner as the General Partner deems reasonable and necessary or
appropriate to preserve the limited liability of the Limited Partners.
Section 8.03. Outside Businesses. Any Partner, or Affiliate thereof, may engage in or
possess an interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the businesses of the Partnership, and neither the
Partnership nor any of the Partners shall have any rights by virtue of this Agreement in and
to such independent ventures or the income or profits derived therefrom, and the pursuit of
any such venture, even if competitive with the businesses of the Partnership, shall not be
deemed wrongful or improper. No Partner or Affiliate thereof shall be obligated to present
any particular investment opportunity to the Partnership even if such opportunity is of a
character which, if presented to the Partnership, could be taken by the Partnership, and any
Partner or
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Affiliate shall have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment opportunity.
Section 8.04. Relationships with Affiliates. The Partnership may enter into any
agreement or contract with the General Partner, any Person who is an Affiliate of the
General Partner, any Limited Partner, any Affiliate of a Limited Partner, or any agent of
the General Partner or the Partnership without the prior approval of any other Partners,
provided that any such agreement or contract shall contain substantially such terms and
conditions as would be contained in a similar agreement or contract entered into by the
Partnership as the result of arm’s-length negotiations from a comparable unaffiliated
disinterested third party.
Section 8.05. Title to Assets of the Partnership. Title to assets of the Partnership,
whether real, personal or mixed, tangible or intangible, shall be deemed to be owned by the
Partnership as an entity, and no Partner, individually or collectively, shall have any
ownership interest in such assets of the Partnership or any portion thereof. Title to any or
all of the assets of the Partnership may be held in the name of the Partnership, the General
Partner or in the name of one or more nominees, as the General Partner may determine. The
General Partner declares and warrants that any assets of the Partnership for which legal
title is held in the name of the General Partner shall be held in trust by the General
Partner for the use and benefit of the Partnership in accordance with the terms and
provisions of this Agreement. All assets of the Partnership shall be recorded as the
property of the Partnership on its books and records, irrespective of the name in which
legal title to such assets of the Partnership is held.
Section 8.06. Purchase or Sale of Units. The General Partner may, on behalf of and for
the account of the Partnership, purchase or otherwise acquire Units and, following any such
purchase or acquisition, may sell or otherwise dispose of any such Units in accordance with
applicable law.
Section 8.07. Resolution of Conflicts of Interest.
(a) Unless otherwise expressly provided herein, (i) whenever a conflict of
interest exists or arises between the General Partner or any of its Affiliates, on
the one hand, and the Partnership, or a Limited Partner on the other hand, or (ii)
whenever this Agreement or any other agreement contemplated herein or therein
provides that the General Partner shall act in a manner which is, or provides
terms which are, fair and reasonable to the Partnership, or any Limited Partner,
the General Partner shall resolve such conflict of interest, taking such action or
provide such terms, considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement, transaction or situation
and the benefits and burdens relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by
the General Partner, the resolution, action or terms so made, taken or
provided by the General Partner shall not constitute a breach of this Agreement or
any other agreement contemplated herein or of any duty or obligation of the
General Partner at law or in equity or
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otherwise.
(b) Whenever in this Agreement the General Partner is permitted or required to
make a decision (i) in its “sole discretion” or “discretion” or under a grant of
similar authority or latitude, the General Partner shall be entitled to consider
only such interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any interest of or
factors affecting the Partnership or the Limited Partners, or (ii) in its “good
faith” or under another expressed standard, the General Partner shall act under
such express standard and shall not be subject to any other or different standards
imposed by this Agreement or any other agreement contemplated herein or by relevant
provisions of law or in equity or otherwise.
Section 8.08. Merger. The Partnership may merge with, or consolidate into, another
business entity (as defined in Section 17-211(a) of the Act) upon the approval by the
General Partner and a Majority Vote of the Limited Partners. In accordance with Section
17-211 of the Act (including Section 17-211(g) of the Act), notwithstanding anything to the
contrary contained in this Agreement, an agreement of merger or consolidation approved by
the General Partner and a Majority Vote of the Limited Partners, may (A) effect any
amendment to this Agreement, or (B) effect the adoption of a new partnership agreement for
the Partnership if it is the surviving or resulting limited partnership of the merger or
consolidation. Any amendment to this Agreement or adoption of anew partnership agreement
made pursuant to the foregoing sentence shall be effective at the effective time or date of
the merger or consolidation. For purposes of any vote required by the Limited Partners in
connection with any merger or consolidation, the Limited Partners shall be treated for
purposes of voting as a single class of limited partners. The provisions of Section 8.08
hereof shall not be construed to limit the accomplishment of a merger or of any of the
matters referred to herein by any other means otherwise permitted by law.
ARTICLE IX
LIMITED PARTNERS
Section 9.01. Liability of Limited Partners. Except as otherwise expressly required by
law, a Limited Partner, in its capacity as such, shall have no liability in
excess of (i) the amount of its Capital Contribution, (ii) its share of any
undistributed profits and assets of the Partnership, (iii) its obligation to make other
payments expressly provided for in this Agreement, and (iv) the amount of any distributions
wrongfully distributed to it. It is the intent of the parties hereto that no distribution to
any Limited Partner shall be deemed a return of any money or other property in violation of
the Act. The payment of any such money or distribution of any such property to a Limited
Partner shall be deemed to be a compromise within the meaning of Section 17-502(b) of the
Act, and the Limited Partner receiving any such money or property shall not be required to
return any such money or property to any Person, the Partnership or any creditor of the
Partnership. However, if any court of competent
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jurisdiction holds that, notwithstanding the provisions of this Agreement, any Limited Partner is
obligated to return such money or property, such obligation shall be the obligation of such Limited
Partner and not of the General Partner.
Section 9.02. No Management by Limited Partners. No Limited Partner, in its capacity as
such, shall take part in the day-to-day management, operation or control of the business and
affairs at the Partnership. The Limited Partner shall not have any right, power, or
authority to transact any business in the name of the Partnership or to act for or on behalf
of or to bind the Partnership. A Limited Partner shall have no rights other than those
specifically provided herein or granted by law.
Section 9.03. Employees, Agents or Officers of the Partnership or a General Partner. A
Limited Partner, or an employee, agent, director or officer of a Limited Partner, may also
be an employee, agent, director or officer of the Partnership or a General Partner. The
existence of these relationships and acting in such capacities will not result in a Limited
Partner being deemed to be participating in the control of the business of the Partnership
or otherwise affect the liability of the Limited Partner or the Person so acting.
ARTICLE X
BOOKS, RECORDS, AND FINANCIAL STATEMENTS
Section 10.01. Records and Access to Records. At all times during the continuation of
the Partnership, the General Partner shall keep or cause to be kept full and true books of
account maintained in accordance which generally accepted accounting principles
consistently applied in which shall be entered fully and accurately each transaction of the
Partnership. Such books of account, together with a copy of this Agreement and of the
Certificate of Limited Partnership, shall at all times be maintained at the principal place
of business of the Partnership and
shall be open to inspection and examination at reasonable times by all Partners and
their duly authorized representatives for any purpose reasonably related to such Partner’s
interest as a partner in the Partnership. The books of account and the records of the
Partnership shall be examined by and reported upon as of the end of each fiscal year of the
Partnership by a firm of independent certified public accountants of national reputation
selected by the General Partner.
Section 10.02. Confidentiality Provisions and Limitations on Access. Notwithstanding
any other provision of this Agreement, the General Partner may, to the maximum extent
permitted by applicable law, keep confidential from the Limited Partners any information
the disclosure of which the General Partner reasonably believes is not in the best interest
of the Partnership or is adverse to the interests of the Partnership or which the
Partnership or the General Partner is required by law or by an agreement with any Person to
keep confidential.
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Section 10.03. Reports to Partners.
(a) The General Partner shall prepare and maintain, or cause to be prepared and
maintained, the books of account of the Partnership and the following documents
that shall be transmitted to each Partner at the times hereinafter set forth:
(1) Within three (3) months after the close of each fiscal year of
the Partnership, the following financial statements, examined by and
certified to by the independent certified public accountants referred to
in Section 10.01 hereof:
(i) Balance sheet of the Partnership as of the beginning and close
of such year;
(ii) Statement of Partnership Profits and Losses for such year; and
(iii) Statement of such Partner’s Capital Account as of the close
of such year, and changes therein during such year.
(2) Within three (3) months after the close of each fiscal year of
the Partnership, the following documents:
(i) A statement indicating such Partner’s share of each item of
Partnership income, gain, loss, deduction, or credit for such year for
income-tax purposes; and
(ii) A copy of each income-tax return, federal or state, filed by
the Partnership for such year.
(b) All information contained in any statement or other document distributed
to any Partner pursuant to Section 10.03 hereof shall be deemed accurate, binding,
and conclusive with respect to such Partner unless written disapproval is made
thereto by such Partner to the Partnership within twenty (20) days after the
receipt of such statement or other document by such Partner.
Section 10.04. Bank or Brokerage Accounts. All funds of the Partnership shall be
deposited in the Partnership name in such bank or brokerage account or accounts as shall be
designated by the General Partner. Withdrawals from any such bank or brokerage account or
accounts shall be made upon such signature or signatures as the General Partner may
designate.
Section 10.05. Right to Make Section 754 Election. The General Partner may, in its sole
discretion, make or revoke, on behalf of the Partnership, an election in accordance with
Section 754 of the Code, so as to adjust the basis of Partnership property in the case of a
distribution of property within the meaning of Section 734 of the Code, and in the case of a
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transfer of a Partnership interest within the meaning of Section 743 of the Code. Each of
the Partners shall, upon request of the General Partner, supply the information necessary to give
effect to such an election.
Section 10.06. Tax Matters Partner.
(a) The General Partner is hereby designated as the “Tax Matters Partner” of
the Partnership within the meaning of Section 6231(a)(7) of the Code and shall have
the power to manage and control, on behalf of the Partnership, any administrative
proceeding at the Partnership level with the Internal Revenue Service relating to
the determination of any item of Partnership income, gain, loss, deduction, or
credit for federal income-tax purposes.
(b) The Tax Matters Partner shall comply with all statutory provisions of the
Code applicable to a “tax matters partner” and shall, without limitation, within
thirty (30) days of the receipt of any notice from the Internal Revenue Service in
any administrative proceeding at the Partnership level relating to the
determination of any Partnership item of income, gain, loss, deduction, or credit,
mail a copy of such notice to each Partner.
ARTICLE XI
ASSIGNABILITY; ADMISSION AND WITHDRAWAL OF PARTNERS
Section 11.01. Assignability of a General Partner’s Interest in the Partnership. A
General Partner may not sell, transfer, assign, pledge, encumber, mortgage, or otherwise
hypothecate (hereinafter in this Article XI hereof collectively referred to as “assign” or
“assignment”) the whole or any part of its interest as a General Partner in the Partnership
without the prior Majority Vote of the Limited Partners. An assignee of all or part of the
interest of a General Partner in the Partnership shall be admitted to the Partnership as a
general partner of the Partnership only if a Majority Vote of the Limited Partners approves
in writing the admission of such assignee as an additional or successor General Partner. If
such vote is obtained, the admission shall be effective upon the filing of an amendment to
the Certificate of Limited Partnership with the Secretary of State of the State of Delaware
which indicates that such Person has been admitted to the Partnership as a general partner
of the Partnership, and shall occur, and for all purposes shall be deemed to have occurred,
immediately prior to the time the assignor ceases to be a general partner of the
Partnership. Upon the filing of an amendment to the Certificate of Limited Partnership with
the Secretary of State of the State of Delaware which indicates that a General Partner is no
longer a general partner of the Partnership, such General Partner shall at that time cease
to be a general partner of the Partnership.
Section 11.02. Assignability of a Limited Partner’s Interest in the Partnership. No
Limited Partner may assign the whole or any part of its interest in the Partnership without
the
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prior written consent of the General Partner, which consent shall not be unreasonably withheld
(taking into account the best interests of the Partnership). If the prior written consent of the
General Partner is obtained for any such assignment, such assignment shall, nevertheless, not
entitle the assignee to become a Substituted Limited Partner or to be entitled to exercise or
receive any of the rights, powers or benefits of a Limited Partner other than the right to receive
distributions to which the assigning Limited Partner would be entitled, unless the assigning
Limited Partner designates, in a written instrument delivered to the General Partner, its assignee
to become a Substituted Limited Partner and the General Partner, in its sole discretion, consents
to the admission of such assignee as a Limited Partner; and provided further, that such assignee
shall not become a Substituted Limited Partner without having first executed an instrument
reasonably satisfactory to the General Partner accepting and adopting the terms and provisions of
this Agreement, including a counterpart signature page to this Agreement, and without having paid
to the Partnership a fee sufficient to cover all reasonable expenses of the Partnership in
connection with its admission as a Substituted Limited Partner.
Section 11.03. Recognition of Assignment by Partnership. No assignment, or any part
thereof, that is in violation of Article XI hereof shall be valid or effective, and neither
the Partnership nor the General Partner shall recognize the same for the purpose of making
distributions of Partnership Net Cash Flow pursuant to Section 6.01 hereof with respect to
such Partnership interest, or part thereof. Neither the Partnership nor the General Partner
shall incur any liability as a result of refusing to make any such distributions to the
transferee of any such invalid assignment.
Section 11.04. Effective Date of Assignment. Any valid assignment of a Limited
Partner’s interest in the Partnership, or part thereof, pursuant to the foregoing provisions
of Section 11.02 hereof shall be effective as of the close of business on the last day of
the calendar month in which the General Partner gives its written consent to such assignment
(or the last day of the calendar month in which such assignment occurs, if later). The
Partnership shall, from the effective date of such assignment, thereafter pay all further
distributions of Net Cash Flow, on account of the Partnership interest (or part thereof) so
assigned, to the assignee of such interest, or part thereof. As between any Partner and its
assignee, Profits and Losses for the fiscal year of the Partnership in which such assignment
occurs shall be apportioned for federal income-tax purposes in accordance with any manner
permitted under Section 706(d) of the Code as such Partner and its assignee may agree to.
Section 11.05. Death, Incompetency, Bankruptcy, or Dissolution of a
Limited Partner. The death, incompetency, Bankruptcy, dissolution or other cessation to
exist as a legal entity of a Limited Partner shall not, in and of itself, dissolve the
Partnership. In any such event, the legal representative or successor of such Limited
Partner may exercise all of the rights of such Limited Partner for the purpose of settling
its estate or administering its property, subject to the terms and conditions of this
Agreement, including any power of an assignee to become a Limited Partner.
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Section 11.06. Withdrawal from the Partnership. Except as provided in this Agreement, a
General Partner or a Limited Partner may not withdraw as a general partner of the
Partnership or as a limited partner of the Partnership, as the case may be.
Section 11.07. Removal of General Partner. A General Partner may be removed as a
general partner of the Partnership with or without cause upon (i) the approval of the
Limited Partners having, in the aggregate, not less than eighty percent (80%) of the
Outstanding Units, and (ii) the election by such Limited Partners of a successor General
Partner. Upon any such election, all Partners shall be bound thereby and shall be deemed to
have approved thereof. Such successor General Partner shall be deemed admitted to the
Partnership immediately prior to the removal of the predecessor General Partner and shall
continue the Partnership without dissolution. A successor General Partner shall be admitted
as a general partner of the Partnership upon the filing of an amendment to the Certificate of
Limited Partnership with the Secretary of State of the State of Delaware which indicates
that the successor General Partner has been admitted as a general partner of the Partnership
and that the removed General Partner is no longer a general partner of the Partnership.
ARTICLE XII
EXCULPATION AND INDEMNIFICATION OF
THE GENERAL PARTNER AND OTHER INDEMNIFIED PERSONS
THE GENERAL PARTNER AND OTHER INDEMNIFIED PERSONS
Section 12.01. Exculpatory Provisions.
(a) Notwithstanding any other terms of this Agreement, whether express or
implied, or obligation or duty at law or in equity, neither the General Partner,
its Affiliates, nor any of their respective officers, directors, shareholders,
partners, employees, representatives or agents nor any officer, employee,
representative or agent of the Partnership and its Affiliates (individually, a
“Covered Person” and collectively, the
“Covered Persons”) shall be liable to the Partnership or any Partner for any
act or omission (in relation to the Partnership, this Agreement, any related
document or any transaction or investment contemplated hereby or thereby) taken or
omitted in good faith by a Covered Person and in the reasonable belief that such
act or omission is in or is not contrary to the best interests of the Partnership
and is within the scope of authority granted to such Covered Person by this
Agreement, provided that such act or omission does not constitute Disabling
Conduct.
(b) A Covered Person may rely and shall incur no liability in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, paper, document,
signature or writing reasonably believed by it to be genuine, and may rely on a
certificate signed by an officer of any Person in order to ascertain any fact with
respect to such Person or within such Person’s knowledge and may rely on an opinion
of counsel selected by such Covered Person with respect to legal matters unless
such Covered Person acts in bad faith.
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Section 12.02. Indemnification of General Partner and Other Indemnified Persons.
(a) To the fullest extent permitted by law, the Partnership shall indemnify
and hold harmless the General Partner, its Affiliates and all directors, officers,
shareholders, partners, employees, representatives and agents of the General
Partner and its Affiliates and all officers, employees, representatives and agents
of the Partnership and its Affiliates (individually, an “Indemnified Person” and
collectively, the “Indemnified Persons”) from and against any and all losses,
claims, demands, liabilities, expenses (including all fees and expenses),
judgments, fines, settlements, and other amounts arising from any and all claims,
demands, actions, suits or proceedings, civil, criminal, administrative or
investigative, in which the Indemnified Person may be involved, or threatened to be
involved, as a party or otherwise, by reason of its management or the affairs of the
Partnership, or the General Partner or its status as a General Partner, an
Affiliate thereof, or partner, director, officer, stockholder, employee,
representative or agent thereof or of the Partnership or a Person serving at the
request of the Partnership, the General Partner or any Affiliate thereof in another
entity in a similar capacity, which relates to or arises out of the Partnership,
its property, its businesses or affairs, and regardless of whether the liability or
expense accrued at or relates to, in whole or in part, any time before, on or after
the date hereof. The negative disposition 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
acted in a
manner contrary to the standard set forth in Section 12.02(b) hereof. Any
indemnification pursuant to Section 12.02 hereof shall be made only out of the
assets of the Partnership.
(b) An Indemnified Person shall not be entitled to indemnification under
Section 12.02 hereof with respect to any claim, issue or matter in which it has
engaged in Disabling Conduct; provided, however, that a court of
competent jurisdiction, may determine upon application that, despite such Disabling
Conduct, in view of all the circumstances of the case, the Indemnified Person is
fairly and reasonably entitled to indemnification for such liabilities and expenses
as the court may deem proper.
(c) To the fullest extent permitted by law, expenses (including legal fees)
incurred by an Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Partnership prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt by
the Partnership of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in Section 12.02 hereof.
(d) The indemnification provided by Section 12.02 hereof shall be in addition to any other rights
to which an Indemnified Person may be entitled under any agreement, by law or vote of the Partners
as a matter of law or otherwise, both as to action in the Indemnified Person’s capacity as the
General Partner, an Affiliate thereof or a partner, director, officer, stockholder, partner,
representative, employee or agent thereof, or an officer,
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employee, representative or agent of the Partnership or an Affiliate thereof and, as to action
in any other capacity, shall continue as to an Indemnified Person who has ceased to serve in such
capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of an
Indemnified Person.
(e) The General Partner and the Partnership may purchase and maintain insurance,
to the extent and in such amounts as the General Partner shall, in its sole
discretion, deem reasonable, on behalf of Indemnified Persons and such other Persons
as the General Partner shall determine, against any liability that may be asserted
against or expenses that may be incurred by such Person in connection with activities
of the Partnership or such indemnities, regardless of whether the Partnership would
have the power to indemnify such Person against such liability under the provisions
of this Agreement. The General Partner and the Partnership may enter into indemnity
contracts with Indemnified Persons and adopt written procedures pursuant to which
arrangements are made for the advancement of expenses and the funding of obligations
under Section 12.02 hereof and containing such other procedures regarding
indemnification as are appropriate.
(f) In no event may any Indemnified Person subject the Limited Partners to
personal liability by reason of any indemnification of an Indemnified Person under
this Agreement or otherwise.
(g) An Indemnified Person shall not be denied indemnification in whole or in
part under Section 12.02 hereof because the Indemnified Person had an interest in the
transaction with respect to which the indemnification applies if the transaction is
otherwise permitted by the terms of this Agreement.
(h) The provisions of Section 12.02 hereof are for the benefit of the
Indemnified Persons and their heirs, successors, assigns, administrators and personal
representatives and shall not be deemed to be for the benefit of any other Persons.
The provisions of Section 12.02 hereof shall not be amended in any way that would
adversely affect the Indemnified Person without the consent of the Indemnified
Person.
Section 12.03. Duties of a General Partner and Others Controlling a General Partner. To
the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary
duties) and liabilities relating thereto to the Partnership or to the Partners, the General
Partner and any other Indemnified Person acting in connection with the Partnership’s
businesses or affairs, shall not be liable to the Partnership or to any Partner for its good
faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the
extent that they restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity, are agreed by the Partners to replace such other duties and
liabilities of such Indemnified Person.
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ARTICLE XIII
DISSOLUTION AND TERMINATION
Section 13.01. No Dissolution. The Partnership shall not be dissolved by the admission
of additional Limited Partners or Substituted Limited Partners or by the admission of
additional
General Partners or successor General Partners in accordance with the terms of this
Agreement. The Partnership shall not be dissolved as a result of a change in the corporate
form of the General Partner or the Limited Partner.
Section 13.02. Events Causing Dissolution. The Partnership shall be dissolved and its
affairs shall be wound up upon the occurrence of any of the following events:
(a) The expiration of the term of the Partnership, as provided in Section 2.08 hereof;
(b) The withdrawal, removal or Bankruptcy of the General Partner or assignment of by
the General Partner of its entire interest in the Partnership when the assignee is not
admitted to the Partnership as an additional or successor General Partner in accordance
with Section 11.01 hereof, or the occurrence of any other event that results in the General Partner ceasing
to be a general partner of the Partnership under the Act, provided the Partnership shall not be
dissolved and required to be wound up in connection with any of the events specified in this clause
(b) if (i) at the time of the occurrence of such event there is at least one (1) remaining general
partner of the Partnership who is hereby authorized to and does carry on the business of the
Partnership, or (ii) within ninety (90) days after the occurrence of such event, all remaining
Partners agree in writing to continue the businesses of the Partnership and to the appointment,
effective as of the date of such event, if required, of one (1) or more additional general partners
of the Partnership;
(c) A written determination by the General Partner to dissolve the Partnership;
(d) The affirmative vote of holders of seventy-five (75%) or more of the Outstanding
Units to dissolve the Partnership;
(e) The sale by the Partnership of all or substantially all of the Partnership’s assets;or
(f) The entry of a decree of judicial dissolution under Section 17-802 of the Act.
Section 13.03. Notice of Dissolution. Upon the dissolution of the Partnership, the
General Partner or the Liquidating Trustee, as the case may be, shall promptly notify the
Partners of such dissolution.
Section 13.04. Liquidation. Upon dissolution of the Partnership, the General Partner,
or, in the event that the dissolution is caused by an event described in Section 13.02(b)
hereof
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and there is no other General Partner, a Person or Persons who may be approved by a Majority
Vote as the Liquidating Trustee, shall immediately commence to wind up the Partnership’s affairs;
provided, however, that a reasonable time shall be allowed for the orderly liquidation of the
assets of the Partnership and the discharge of liabilities to creditors so as to enable the
Partners to minimize the normal losses attendant upon a liquidation. The Partners shall continue to
share Profits and Losses during liquidation in the same proportions as specified in Article V
hereof as before liquidation. Each Partner shall be furnished with a statement prepared by the
Partnership’s certified public accountant that shall set forth the assets and liabilities of the
Partnership as of the date of dissolution. The proceeds of liquidation shall be distributed, as
realized, in the following order and priority:
(a) To creditors of the Partnership, including Partners who are creditors, to
the extent otherwise permitted by law, in satisfaction of the liabilities of the
Partnership (whether by payment or the making of reasonable provision for payment
thereof); and
(b) To distribute to the Partners the remaining proceeds of liquidation in
accordance with the Capital Account balances of the Partners.
Section 13.05. Methods Of Liquidation. The Partnership may be liquidated by either:
(a) Selling the Partnership assets and distributing the net proceeds therefrom
in the manner provided in Section 13.04 hereof. Any net gain or loss realized by the
Partnership on the sale or other disposition of Partnership assets in the process of
the liquidation of the Partnership shall be allocated to the Partners in the ratios
specified for allocating Profits or Losses in Article V hereof; or
(b) Subject to the order of priority set forth in Section 13.04 hereof,
distributing the Partnership assets proportionately to the Partners in kind with each
Partner accepting an undivided interest in the Partnership assets, subject to
Partnership liabilities, in satisfaction of its proportionate interests in the
Partnership.
Section 13.06. Termination of Partnership. The Partnership shall terminate when all of
the assets of the Partnership, after payment of or due provision for all debts, liabilities
and obligations of the Partnership, shall have been distributed to the Partners in the
manner provided for in Article XIII hereof, and the Certificate of Limited Partnership shall
have been canceled in the manner required by the Act.
ARTICLE XIV
ARBITRATION
Section 14.01. Dispute Resolution. To the fullest extent permitted by the Act and other
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applicable law, any controversy or claim arising out of or relating to this Agreement, or
any breach thereof, shall be settled by arbitration in accordance and to the extent permitted by
the Uniform Arbitration Act (10 Del.C. Section 5701, et seq.) (the “Delaware Arbitration Act”) and,
to the extent not inconsistent therewith, the Commercial Arbitration Rules of the American
Arbitration Association (the “AAA”), as amended and in effect on the date that demand for
arbitration is filed with the AAA. The parties hereto agree that any such controversy shall be
submitted to three (3) arbitrators. Each party shall select one (1) arbitrator. The two (2)
arbitrators selected shall then choose a third arbitrator. The arbitrator’s ruling shall be binding
and conclusive upon the parties hereto to the fullest extent permitted by law. Any arbitration
shall occur in Wilmington, Delaware, and judgment upon the award rendered may be entered in any
court having jurisdiction thereof. The arbitrators shall be governed by and shall apply the
substantive law of the State of Delaware in making their award and their ruling shall be binding
and conclusive upon the parties hereto. The expenses of the arbitration shall be borne equally by
the parties to the arbitration, provided that each party shall pay for and bear the cost of its or
its own experts, evidence, and legal counsel.
ARTICLE XV
POWER OF ATTORNEY
POWER OF ATTORNEY
Section 15.01. Appointment of General Partner. Each Limited Partner hereby irrevocably
constitutes and appoints the General Partner and any Liquidating Trustee as its true and
lawful attorney-in-fact, in its name, place, and stead, to make, execute, acknowledge, and
file the following documents, to the extent consistent with the other provisions of this
Agreement:
(a) This Agreement, and, to the extent required by law, the Certificate of
Limited Partnership;
(b) Any fictitious or assumed-name certificates required to be filed on behalf
of the Partnership;
(c) Any application or registration to do business in any State other than, or
in addition to, the State of Delaware;
(d) Deeds, notes, mortgages, pledges, security instruments of any kind and
nature, leases, and such other instruments as may be necessary to carry on the
business of the Partnership; provided that no such instrument shall increase the
personal liability of the Limited Partners;
(e) All certificates and other instruments that the General Partner deems
appropriate or necessary to form and qualify, or continue the qualification of, the
Partnership as a limited partnership in the State of Delaware and all jurisdictions
in which the Partnership
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may intend to conduct businesses or own property;
(f) Any duly adopted amendment to or restatement of this Agreement or the
Certificate of Limited Partnership;
(g) All conveyances and other instruments or documents that the General Partner
deems appropriate or necessary to effect or reflect the dissolution, liquidation and
termination of the Partnership pursuant to the terms of this Agreement (including a
certificate of cancellation);
(h) Any and all financing statements, continuation statements, mortgages or
other documents necessary to grant to or perfect for secured creditors of the
Partnership, including the General Partner and its Affiliates, a security interest,
mortgage, pledge or lien on all or any of the assets of the Partnership; and
(i) All other instruments as the attorneys-in-fact or any of them may deem
necessary or advisable to carry out fully the provisions of this Agreement in
accordance with its terms.
Section 15.02. Power Coupled with Interest. It is expressly intended by each Limited
Partner that the power of attorney granted by Section 15.01 hereof is coupled with an
interest, shall be irrevocable, and shall survive and not be affected by the subsequent
disability or incapacity of such Limited Partner (or if such Limited Partner is a
corporation, partnership, trust, association, limited liability company or other legal
entity, by the dissolution or termination thereof).
ARTICLE XVI
MISCELLANEOUS
Section 16.01. Notices. All notices provided for in this Agreement shall be in writing
and shall be personally delivered, or mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, or transmittal by telegram, telefax or telecopier,
as follows:
(a) If given to the Partnership, in care of the General Partner at its mailing
address set forth on Schedule A attached hereto;
(b) If given to a General Partner, at its mailing address set forth on Schedule A attached hereto; or
(c) If given to any Limited Partner, at the address set forth opposite its name
on Schedule A attached hereto, or at such other address as such Limited Partner may
hereafter designate by written notice to the Partnership.
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Each notice, demand, request or communication that shall be delivered, mailed or
transmitted in the manner described above shall be deemed sufficiently given, served, sent
or. received for all purposes when delivered in person or when sent to a Person at the
address on Schedule A attached hereto by first-class mail or by other means of written
communication.
Section 16.02. Amendments.
(a) Except as provided in (b) of Section 16.02 hereof, no amendment to this
Agreement shall be effective or binding upon the parties hereto without the written
consent of the General Partner and a Majority Vote; provided, however, that any
modification or amendment that would: (i) increase the amount of the capital
contributions to be made by any Partner, (ii) increase the liability of the Limited
Partners, or (iii) materially adversely affect the rights of the Limited Partners
under this Agreement shall require the consent of the General Partner and each
Limited Partner. Upon receipt of a written proposal executed by the Limited Partners
having, in the aggregate, seventy-five percent (75%) or more of the interests in the
capital of the Partnership of all the Limited Partners for the adoption of an
amendment of this Agreement, or should the General Partner desire to propose such an
amendment, the General Partner shall adopt and implement a plan whereby the Limited
Partners may vote for or against the adoption of such an amendment.
(b) Notwithstanding anything herein to the contrary, the General Partner may
amend this Partnership Agreement without the consent of any Limited Partner:
(1) to reflect the addition or substitution of Limited Partners (made in accordance with
the terms hereof) or the reduction of the Capital Accounts upon the return of capital to
Limited Partners;
(2) to add to the representations, duties or obligations of the General Partner or
surrender any right or power granted to the General Partner herein, for the benefit of the
Limited Partners;
(3) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to add any other provisions with respect to
matters or questions arising under this Agreement which will not be inconsistent with the
provisions of the Agreement;
(4) to delete or add any provision from or to this Agreement requested to be so deleted
or added by a state regulatory agency, the deletion or addition of which provision is deemed
by such regulatory agency to be for the benefit or protection of the Limited Partners; and
(5) to modify any provision of this Agreement, if, in the opinion of counsel to the
Partnership and the General Partner, such modification is necessary to prevent the
Partnership
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from being treated for tax purposes as an association taxable as a corporation, rather
than being taxable as a partnership, to prevent the Partnership from being treated as a “publicly
traded partnership” as defined in the Code.
Section 16.03. Fiscal Year. The fiscal year of the Partnership shall end on December
31st of each year.
Section 16.04. Securities Act Investment Covenant. Each Partner represents and warrants
that it is acquiring its interest in the Partnership for its own account, and not with a view
to resale or distribution thereof within the meaning of the Securities Act of 1933, as
amended, and that no such interest will be sold, transferred, hypothecated, or assigned by it
in contravention of the Securities Act of 1933, as amended, or any state Blue Sky or
securities statute.
Section 16.05. Failure to Pursue Remedies. The failure of any party to seek redress for
violation of, or to insist upon the strict performance of, any provision of this Agreement
shall not prevent a subsequent act, which would have originally constituted a violation, from
having the effect of an original violation.
Section 16.06. Headings. The headings in this Agreement are included for convenience and
identification only and are in no way intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof.
Section 16.07. Cumulative Remedies. The rights and remedies provided by this Agreement
are cumulative and the use of any one right or remedy by any party shall not preclude or
waive its right to use any or all other remedies. Said rights and remedies are given in
addition to any other rights the parties may have by law, statute, ordinance or otherwise.
Section 16.08. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of all the parties and, to the extent permitted by this Agreement, their successors,
legal representatives, and assigns.
Section 16.09. Interpretation. Throughout this Agreement and any amendment hereto,
nouns, pronouns, and verbs shall be construed as masculine, feminine, neuter, singular or
plural, whichever shall be applicable. All references herein to “Articles”, “Sections” and
paragraphs shall refer to corresponding provisions of this Agreement.
Section 16.10. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision were
omitted.
Section 16.11. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all Partners had signed the same document. All
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counterparts shall be construed together and shall constitute one instrument.
Section 16.12. Governing Law. This Agreement and the rights of the parties hereunder shall
be interpreted in accordance with the laws of the State of Delaware, and all rights and
remedies shall be governed by such laws without regard to principles of conflicts of laws.
[Signature Page To Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above stated.
| GENERAL PARTNER: REPUBLIC SERVICES OF GEORGIA GP, LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name : Xxxxx X. Xxxxxxx | ||||
| Title: | V.P./Sect. | |||
| INITIAL LIMITED PARTNER: REPUBLIC SERVICES OF GEORGIA LP, LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | V.P./Sect. | |||
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SCHEDULE A
TO
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
REPUBLIC SERVICES OF GEORGIA, LIMITED PARTNERSHIP
TO
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
REPUBLIC SERVICES OF GEORGIA, LIMITED PARTNERSHIP
The name and mailing address of the General Partner and the amount of the cash
contribution to the capital of the Partnership paid by such General Partner for its general
partner interest in the Partnership are as follows:
Name and Mailing |
||||||||
Address of |
||||||||
General Partner
|
Number of Units
|
Cash Contribution
|
||||||
Republic Services of Georgia GP, LLC
|
1 | $ | 10.00 | |||||
000 XX 0xx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
The name and mailing address of each Limited Partner of the Partnership, as well as the
number of Units purchased by such Limited Partner and the amount of the cash contribution to
the capital of the Partnership paid by such Limited Partner for such Units, are as follows:
Name and Mailing |
||||||||
Address of |
||||||||
Limited Partner
|
Number of Units
|
Cash Contribution
|
||||||
Republic Services of Georgia LP, LLC
|
99 | $ | 990.00 | |||||
000 Xxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
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