Exhibit 10.41
SECOND
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
DUNE JET SERVICES, L.P.
Dated as of July 9, 1997
SECOND
AMENDED AND RESTATED
AGREEMENT OF
LIMITED PARTNERSHIP
OF
DUNE JET SERVICES, L.P.
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of
DUNE JET SERVICES, L.P. (this "Agreement") is entered into on October 31, 1997,
as of July 9, 1997, by and among DUNE JET SERVICES, INC. (the "General Partner")
and the other entities set forth on Schedule A attached hereto and made part of
this Agreement (each a "Limited Partner" and collectively with the General
Partner, the "Partners").
RECITALS:
The parties hereto have formed a limited partnership (the
"Partnership") pursuant to an Agreement of Limited Partnership (the "Original
Agreement") dated as of July 9, 1997 (the "Formation Date") and an amendment and
restatement of the Original Agreement (the "First Amendment") as of the
Formation Date. The parties now desire again to amend and restate the Original
Agreement as of the Formation Date as provided herein (the "Agreement"), among
other things to reflect the withdrawal of one of the Limited Partners upon the
redemption of its interest by the Partnership, and the making of capital
contributions by the General Partner as a Limited Partner, in each case as of
the Formation Date.
In consideration of the foregoing and of the mutual covenants and
agreements hereinafter set forth, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
ARTICLE I
FORMATION, NAME AND PRINCIPAL OFFICE
Section 1.1 Formation. The parties hereto formed the Partnership
pursuant to the Revised Uniform Limited Partnership Act (the "Act") and other
relevant laws of the State of Delaware, and desire to continue the Partnership
as provided in this Agreement.
Section 1.2 Name and Principal Office. The business of the Partnership
shall be conducted under the name "Dune Jet Services, L.P." or such other name
as selected by the General Partner. The principal office of the Partnership
shall be located at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or at such
other place as the General Partner may designate.
Section 1.3 Registered Office in the State of Delaware; Agent for
Service. The address of the Partnership's registered office in the State of
Delaware is c/o The Corporation Service Company, Corporation Trust Center, 1013
Center Road, Wilmington, County of Xxx Xxxxxx, Xxxxxxxx 00000. The name of the
Partnership's registered agent for service of process in the State of Delaware
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at such address is The Corporation Service Company or such other agent as may be
designated from time to time by the General Partner.
ARTICLE II
PURPOSES AND POWERS
Section 2.1 Purpose. The purpose for which the Partnership is formed
shall be to engage in any lawful act or activity in which a limited partnership
is entitled to engage under the Act, including, without limitation, the
ownership, directly or through one or more grantor trusts, of one or more
corporate jet aircraft ("Aircraft") and the operation of a corporate jet
aircraft charter business.
Section 2.2 Powers. The Partnership shall be empowered to do any and
all acts and things necessary, appropriate, incidental to or convenient for the
furtherance and accomplishment of the purposes set forth in Section 2.1 hereof,
including, without limitation, directly in the name of the Partnership or
through any one or more grantor trusts:
(a) to utilize its capital and assets to purchase, hold and
dispose of property used in connection with, or incidental to its business;
(b) to acquire, obtain rights with respect to, construct,
operate, maintain, finance, improve, own, sell, convey, assign, mortgage or
lease any Aircraft and any other personal property necessary, convenient or
incidental to the accomplishment of the purposes of the Partnership;
(c) to borrow money from, and issue evidences of indebtedness
in furtherance of the Partnership business and to secure the same by mortgages,
pledges or other liens on any assets of the Partnership or prepay, refinance,
increase, modify or extend any thereof; provided, that such evidences of
indebtedness and documents securing the same;
(d) to enter into, perform and carry out contracts of any
kind, including, without limitation, contracts with affiliates of the General
Partner necessary or incidental to the accomplishment of the purposes of the
Partnership;
(e) to bring and defend actions at law or in equity or
compromise or submit to arbitration any and all claims in favor of or against
the Partnership;
(f) to enter into management and other agreements as may be
required to operate the business of the Partnership;
(g) subject to the express provisions of this Agreement, to
make or revoke any election which the Partnership may make under the Code or any
State or local income tax law;
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(h) to maintain at the expense of the Partnership such
insurance coverage as shall be necessary or appropriate to the business of the
Partnership, including, without limitation, general partner indemnification
insurance, in such amounts and of such types as shall be determined in the sole
discretion of the General Partner;
(i) to make prudent interim investments in government
obligations, insured obligations, bank time deposits, commercial paper, tax
exempt investments, money market funds, certificates of deposit and bankers
acceptances;
(j) to deposit the funds of the Partnership in the Partnership
name in any bank or trust company and to entrust to such bank or trust company
any of the securities, monies, documents and papers belonging or relating to the
Partnership; and
(k) to engage in any kind of lawful activity, and enter into,
perform and carry out contracts of any kind and execute such agreements and
documents as shall be necessary or advisable, in the discretion of the General
Partner, in connection with the accomplishment of the purposes of the
Partnership.
ARTICLE III
TERM
The term of the Partnership shall commence on the Effective Date, and
shall continue until July 8, 2017, unless the Partnership is terminated sooner
pursuant to Article XI hereof.
ARTICLE IV
CAPITAL CONTRIBUTIONS
Section 4.1 Initial Capital Contributions. As of the Formation Date,
each Partner made the initial capital contribution, if any, set forth opposite
its name on Schedule A as its "Initial Contribution" and Medical Resources, Inc
(the "Withdrawing Partner") made an initial capital contribution of $1,000. Upon
execution and delivery of the First Amendment, National RV Holdings, Inc. (the
"Continuing Original Limited Partner") made the additional capital contribution
set forth opposite its name as its "Additional Contribution" and the Withdrawing
Partner made an additional capital contribution of $3,249,000. On the date
hereof, the Partnership redeemed all capital contributions of the Withdrawing
Partner and the General Partner shall make the additional capital contribution
as a Limited Partner set forth opposite its name as a Limited Partner as its
"Additional Contribution".
Section 4.2 Additional Capital Contributions.
(a) The General Partner shall determine whether any Partner,
now existing and/or newly admitted, shall be permitted to make additional
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capital contributions to the Partnership. In the event that there is a deficit
in the operating cash flow of the Partnership, each Partner shall make
additional capital contributions to the Partnership from time to time, as
required to fund the operating expenses of the Partnership as determined in the
reasonable discretion of the General Partner ("Additional Capital
Contributions"); such Additional Capital Contributions shall be made in amounts
pro rata among the Partners in accordance with the percentages (of each
additional capital contribution so determined by the General Partner) for the
Partners respectively set forth in Schedule A opposite the names of such
Partners as their "Contribution Percentages". Additional Capital Contributions
under this Section 4.2(a) shall be made by each Partner within ten (10) days
after delivery of a written notice executed by the General Partner, which notice
shall include the total amount of Additional Capital Contributions required by
the Partnership.
(b) Capital contributions to the Partnership shall be made in
cash or, with the consent of the General Partner in its reasonable discretion,
in property of any kind or character. If contributions to the capital of the
Partnership are made in property other than cash, they shall be valued at their
fair market value on the date of contribution. The initial capital contribution
of the General Partner was the Cessna Aircraft, Serial No. 650-0025,
Registration Number NI6FE, which the parties agree shall be valued at the amount
set forth on Schedule A as the "Initial Contribution" of the General Partner.
(c) If a Partner fails to contribute its full share of any
Additional Capital Contribution called for pursuant to Section 4.2(a) by the due
date specified in Section 4.2(a) (such non-contributing Partner being herein
called a "Non-Contributing Partner" and the amount of cash which the
Non-Contributing Partner failed timely to contribute being herein referred to as
its "Deficit Amount"), the General Partner shall give a notice of such failure
to each of the other Partners who has timely contributed its own full share of
such cash (the Partners who have timely contributed their full share of such
cash being collectively referred to herein as the "Contributing Partners"). For
a period of fifteen (15) days following the giving of such notice by the General
Partner, each Contributing Partner shall have the right (but not the obligation)
to contribute directly to the Partnership all or any portion of the Deficit
Amount of the Non-Contributing Partner, provided, however, that if more than one
of the Contributing Partners contributes all or any portion of the Deficit
Amount of a Non-Contributing Partner and the aggregate amount contributed by the
Contributing Partners exceeds such Deficit Amount, unless otherwise agreed in
writing by all of such contributing Partners, the maximum portion of such
Deficit Amount which each such contributing Partner shall have the right to
contribute shall be that portion of such Deficit Amount which bears the same
ratio to the total of such Deficit Amount as the respective Contribution
Percentage of each such contributing Partner bears to the aggregate Contribution
Percentages of all such Contributing Partners, and the General Partners shall
return any such excess.
(d) If a Contributing Partner contributes all or any portion
of the Non-Contributing Partner's Deficit Amount, then all of the following
shall occur effective as of the date of such contribution by the Contributing
Partner:
(i) The amount of such contribution shall be deemed
to be an Additional Capital Contribution contributed by the
Contributing Partner who made such contribution and such amount shall
be credited to the Capital Account of the Contributing Partner;
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(ii) The Capital Account of the Non-Contributing
Partner (as the same may have previously been adjusted pursuant to this
Section 4.2(d)(ii)) shall be permanently decreased , but not below
zero, subject to possible future adjustment pursuant to this Section
4.2(d)(ii), and the Capital Account of the Contributing Partner who
made such contribution (as the same may have previously been adjusted
pursuant to this Section 4.2(d)(ii)) shall be permanently increased,
subject to possible future adjustment pursuant to this Section
4.2(d)(ii), by an amount equal to the product of (x) the amount of such
contribution made by the Contributing Partner multiplied by (y) 2; and
(iii) The Profit and Loss Percentage of the
Non-Contributing Partner (as the same may have previously been adjusted
pursuant to this Section 4.2(d)(iii)) shall be permanently decreased
(but not below zero) subject to possible future adjustment pursuant to
this Section 4.2 (d)(iii), and the Profit and Loss Percentage of the
Contributing Partner who made such contribution (as the same may have
previously been adjusted pursuant to Section 4.2(d)(ii)) shall be
permanently increased subject to possible future adjustment pursuant to
this Section 4.2(d)(ii), by the number of percentage points equal to
the lesser of (A) the percentage (rounded to ten decimal places)
obtained by dividing (x) the sum of such Partner's Initial
Contributions, Additional Contributions and Additional Capital
Contributions, taking into account those deemed made pursuant to
Section 4.2(d)(ii), by (y) the aggregate of Initial Contributions,
Additional Contributions and Additional Capital Contributions of all
the Partners; or (B) the Profit and Loss Percentage of the
Non-Contributing Partner immediately prior to the adjustment pursuant
to this Section 4.2(d).
4.3 Reasonably promptly following a request by any Partner, the
Partners shall execute an amendment to this Agreement evidencing any adjustments
in the Partners' Capital Accounts and Profit and Loss Percentages pursuant to
Section 4.2(d), but such adjustments shall be effective whether or not such an
amendment is executed.
4.4 Each Limited Partner hereby consents to admission of additional
Partners and any amendment of this Agreement to reflect the admission of
additional Partners or withdrawal of Partners and additional capital
contributions and withdrawals from the Capital Account of any Partner, provided,
however, that no amendment to this Agreement shall be necessary to reflect the
admission or withdrawal of Limited Partners or additions or reductions to the
Capital Account of any Partner.
ARTICLE V
CAPITAL ACCOUNTS
Section 5.1 Capital Accounts. A separate capital account ("Capital
Account") shall be maintained for each Partner. The Capital Account of each
Partner shall be (a) credited with (i) the amount of cash and the fair market
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value of any property (such value to be determined by the General Partner)
contributed by such Partner to the capital of the Partnership pursuant to
Sections 4.1 and 4.2 hereof and (ii) the share of profits of the Partnership
allocated to such Partner pursuant to Sections 6.1 and 6.2 hereof, (b) debited
with (i) the amount of cash and the fair market value of any property
distributed to such Partner pursuant to Section 7.1 hereof, and (ii) the share
of losses of the Partnership allocated to such Partner as determined pursuant to
Sections 6.1 and 6.3 hereof, (c) adjusted as provided in Section 4.2, and (d)
otherwise maintained in accordance with Section 704(b) of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Treasury Regulations issued
thereunder.
Any references in this Agreement to the Capital Account of a Partner
shall be deemed to refer to such Capital Account as the same may be credited or
debited from time to time as set forth in this Section 5.1.
Section 5.2 Negative Capital Accounts. Except as required by law, no
Partner shall be required to pay to the Partnership or to any other Partner any
deficit or negative balance which may exist from time to time in such Partner's
Capital Account.
Section 5.3 Return of Capital; No Interest on Capital. Except as
expressly set forth in this Agreement, no Partner shall have the right to demand
or receive the return of all or part of its Capital Account or any contributions
to the capital of the Partnership. No Partner shall be entitled to receive any
interest on any contributions to the capital of the Partnership or on its
Capital Account. Notwithstanding the foregoing, the parties acknowledge that the
Withdrawing Partner has received the amount of $17,536.46, representing interest
on the amount of its capital contributions from the dates made through the date
of its withdrawal.
ARTICLE VI
ALLOCATIONS OF PROFITS AND LOSSES
Section 6.1 Allocations of Profits and Losses. Partnership net profits
and losses, other than gains from Substantial Capital Transactions, as defined
in Section 6.2 of this Agreement, and losses from Depreciation of Aircraft, as
defined in Section 6.3 of this Agreement, shall be allocated for each taxable
year pro rata among the Partners in accordance with their respective Profit and
Loss Percentages. Each Partner's Profit and Loss Percentage shall initially be
the Contribution Percentage set forth on Schedule A hereto and shall be adjusted
pursuant to Section 4.2(d).
Section 6.2 Allocations of Gain from Substantial Capital Transactions.
Net gain derived in connection with the sale, transfer, assignment or other
disposition of all or substantially all the business assets of the Partnership,
or any other event which results in the dissolution and termination of the
Partnership (any such sale, transfer, assignment, disposition or event, a
"Substantial Capital Transaction") shall be allocated (after all net income or
net loss from operations and distributions made or to be made for the current
period have been taken into account) as follows and in the following order of
priority:
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(i) first, to the General Partner to the extent such
gain (whether or not characterized as ordinary income for federal income tax
purposes) is derived from recapture of Depreciation of Aircraft previously
allocated pursuant to Section 6.3 hereof;
(ii) second, to the Partners with deficit Capital
Account balances, in proportion to such deficits,
until such deficits are reduced to zero; and
(iii) the balance, pro rata among the Partners in
accordance with their respective Profit and Loss
Percentages.
Section 6.3 Losses of the Partnership from deductions for depreciation
and amortization for federal income tax purposes with respect to the
Partnership's Aircraft ("Depreciation of Aircraft") shall be allocated to the
General Partner.
Section 6.4 Except as provided in Section 6.5 below, the net profits
and net losses of the Partnership, as determined for federal income tax
purposes, shall be allocated in the same manner as profits and losses are
allocated under Section 6.1, 6.2 and 6.3.
Section 6.5 Partnership income, gain, loss and deduction shall be
allocated among the Partners in accordance with the principles of Code Section
704(c), the Treasury Regulations thereunder and Treasury Regulations Section
1.704-1(b)(4)(i) to account for any variation between adjusted tax basis and
book value of Partnership property.
ARTICLE VII
DISTRIBUTIONS
Section 7.1 Distributions. Until the dissolution of the Partnership,
all distributions shall be made to the Partners, pro rata, in accordance with
the respective Profit and Loss Percentages. From and after the dissolution of
the Partnership, distributions shall be made to the Partners:
(i) first, pro rata in accordance with the ratios of
their respective positive capital account balance
until such balances shall be reduced to zero; and
(ii) thereafter, in accordance with their respective
Profit and Loss Percentages.
All other matters regarding distributions, whether prior to or after
dissolution, including, without limitation, when distributions shall be made,
whether they shall be made in cash and/or property, and the fair market value of
any property distributed in kind shall be determined by the General Partner.
Section 7.2 Withholding. The Partnership may withhold
from any distribution the amount required by applicable Federal, State or local
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income tax law with respect to such distribution (or deemed distribution related
thereto), the amount so withheld being treated as a distribution for all
purposes of this Agreement. The General Partner may make any elections permitted
under applicable law as to withholding of tax and may require appropriate
documentation where a Limited Partner claims that withholding is not required
with respect to distributions to which he is entitled. Notwithstanding the
foregoing, the Partnership or the General Partner shall be entitled to
reimbursement, whether from the distributee or from distributions to which he is
otherwise entitled, for any taxes the Partnership or the General Partner is
required to pay with respect to a Limited Partner and not covered by amounts
withheld with respect to such Partner.
ARTICLE VIII
FISCAL MATTERS
Section 8.1 Fiscal Year. The taxable and fiscal year of the Partnership
for financial and federal, state and local income tax purposes shall be the
period beginning January 1 and ending December 31 of each year or portion
thereof during which the Partnership is in existence, except as otherwise
provided in the discretion of the General Partner.
Section 8.2 Books and Records. The Partnership shall keep complete and
accurate books of accounts reflecting all of the Partnership's activities and
transactions. All accounting decisions, including the selection of accountants
for the Partnership, and tax elections shall be determined by the General
Partner The General Partner is hereby designated the Tax Matters Partner for
Federal income tax purposes pursuant to Section 6231 of the Code and is
authorized to take all necessary action to qualify as such. Each Partner may
have access during reasonable business hours to the Partnership's books of
account.
Section 8.3 Bank Accounts. All funds of the Partnership shall be
deposited in one or more bank accounts established by the General Partner in the
name of the Partnership or in the name of a trust set up by the Partnership. All
withdrawals therefrom shall be made upon checks signed by the General Partner
and/or such additional person or persons as shall be designated by the General
Partner.
ARTICLE IX
RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL PARTNER
Section 9.1 Business Management and Control. The General Partner shall
have the absolute and exclusive right, power and discretion to manage the
business of the Partnership and, acting in accordance with the terms of this
Agreement, to make all decisions and take any action he deems necessary or
advisable in connection with the business, management and operation of the
Partnership.
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Section 9.2 Liability. Except as otherwise provided by law, neither the
General Partner, nor its successors, assigns, and former, present and future
partners, officers, directors, stockholders and employees or affiliates shall be
personally liable for the return of any portion of the Capital Contributions of
the Limited Partners or shall be required to pay to the Partnership or any
Limited Partner any deficit in any Partner's Capital Account. No former, present
or future partner, officer, director, stockholder, employee or affiliate of the
General Partner shall be liable, responsible or accountable to the Partnership
or any Partner for (a) any act or omission performed or omitted by any of them,
including without limitation, those acts performed or omitted on advice of legal
counsel, accountants, brokers or consultants of the Partnership, or for any
costs, damages or liabilities arising therefrom, or by law, unless that act or
omission was performed or omitted fraudulently, in bad faith or as a result of
gross negligence; or (b) except as provided in clause (a) of this Section 9.2
with respect to the person who performed or omitted such acts, any loss due to
negligence, dishonesty or bad faith of any employee, officer, broker, consultant
or other agent of the Partnership, selected, engaged and retained in good faith
by such General Partner.
Section 9.3 Indemnification.
(a) Rights to Indemnification. The Partnership shall:
(i) indemnify and hold harmless the General Partner,
the former, present and future partners, officers, directors,
stockholders, employees and affiliates of the General Partner
and the respective personal representatives, heirs, successors
in interest and assignees of any thereof (each, an
"Indemnified Party"), from and against any and all damages
incurred or suffered by any Indemnified Party arising out of
or in connection with the Partnership's business or affairs;
provided, however, that the Partnership shall not indemnify or
hold harmless any Indemnified Party with respect to any act or
omission which was performed or omitted fraudulently, in bad
faith or as a result of gross negligence; and
(ii) advance to any Indemnified Party expenses for
which the Partnership is required to indemnify the Indemnified
Party pursuant to this Section 9.3 subject to the undertaking
of the Indemnified Party to repay such advances if it is
ultimately determined that such Indemnified Party is not
entitled to be indemnified.
(b) Survival. The exculpation provided in Section 9.2 and the
indemnification provided in this Section 9.3 shall survive any termination of
this Agreement. Any person entitled to exculpation pursuant to Section 9.2
and/or indemnification pursuant to this Section 9.3 shall remain entitled to
such exculpation and/or indemnification to the same extent as prior to any of
the following events with respect to any matter arising prior to such event and
shall have no liability with respect to any matter arising after such event: (i)
such person ceases to be a partner, officer, director, stockholder, employee or
affiliate of the General Partner; or (ii) the General Partner ceases to be the
general partner of the Partnership, except, in the case of clause (ii), if such
person is a partner, officer, director, stockholder, employee or affiliate of a
successor to the General Partner.
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(c) Repayment. If it shall ultimately be determined that the
Indemnified Party is not entitled to the indemnification provided by this
Section 9.3, the Indemnified Party shall promptly repay to the Partnership the
amount of any expenses advanced to such Indemnified Party and the amount of all
costs of the Partnership in providing indemnification pursuant to this
Agreement.
Section 9.4 Fees and Expenses. All out-of-pocket expenses incurred by
the General Partner in connection with the Partnership's business shall be paid
by the Partnership or reimbursed to the General Partner by the Partnership.
Section 9.5 Transactions with Partners or Affiliates. Subject to
availability, taking into account the obligations of the Partnership with
respect to commercial charter of its Aircraft, each Partner shall be entitled to
a pro rata share of the hours of utilization of the Partnership's Aircraft
designated by the General Partner, in its sole discretion, by the Partners for
the respective executive officers and their guests. Each Partner shall reimburse
the Partnership for such utilization at the rate to be mutually agreed upon by
all Partners. The Partnership is expressly permitted in the normal course of its
business to enter into other transactions with any Partner or any affiliate of
any Partner.
ARTICLE X
ADMISSION OF PARTNERS;
RIGHT OF FIRST REFUSAL;
ASSIGNMENT OF PARTNERSHIP INTERESTS
Section 10.1 Citizenship Requirement.
(a) Each Limited Partner represents, warrants and covenants
(i) that it is, and during the term of the Partnership will remain, a citizen of
the United States, as such term is defined in the Federal Aviation Act of 1958,
as amended (such act or any successor legislation hereinafter referred to as the
"FAA Act"), and (ii) that it is not, and during the term of the Partnership will
not become, nor is it acquiring, its interest in the Partnership as nominee for
an air carrier, an officer or director of an air carrier or a person who
controls an air carrier, as such terms as defined in the FAA Act.
(b) If, at any time during the term of the Partnership, a
Limited Partner breaches any of the representations, warranties or covenants
contained in Section 10.1(a) or fails to comply with any rule or regulation of
the Federal Aviation Administration (or any successor agency), or otherwise
imposed under the FAA Act, which rule or regulation is applicable to such
Limited Partner, such Limited Partner shall immediately give notice to the
General Partner of such non-compliance, and the General Partner may give notice
to such Limited Partner requiring it to comply with such rule or regulation,
obtain a waiver thereof satisfactory to the General Partner or transfer its
interest in the Partnership to a person approved by the General Partner. If such
Limited Partner fails to take any such action within 30 days of such notice by
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the General Partner, anything contained herein to the contrary notwithstanding,
the interest in the Partnership of such Limited Partner shall automatically
revert to the Partnership and shall be allocated to the other Partners in
proportion to their respective percentages, and the rights, powers and
privileges of the Limited Partner with respect to such interest in the
Partnership shall be forfeited without compensation to such Limited Partner.
(c) Each Limited Partner hereby indemnifies the Partnership
and each Partner against any and all loss, liability, damage or expense
(including, without limitation, tax liabilities or loss of tax benefits)
arising, directly or indirectly, as a result of any breach by such partner of
the representations, warranties or covenants contained in, or any non-compliance
with the provisions of, this Section 10.1.
Section 10.2 No person may be admitted as a Limited Partner without the
written consent of the General Partner, which consent may be withheld in its
sole and absolute discretion. No Limited Partner may transfer all or a portion
of its interest in the Partnership (including any beneficial interest therein),
except to a wholly-owned subsidiary or to a person owning 100% of the
outstanding capital stock of such Limited Partner, without the consent of the
General Partner, which consent may be withheld in its sole and absolute
discretion.
Section 10.3 No transferee of a Limited Partner's interest in the
Partnership shall become a Limited Partner without the written consent of the
General Partner, which consent may be withheld in the sole and absolute
discretion the General Partner, and the transferee shall have accepted, adopted
and approved in writing all of the terms and provisions of this Agreement, as
the same may have been amended, and shall have become a party hereto.
Section 10.4 Change of Control. Upon the occurrence of a Change in
Control (as hereinafter defined) of any Limited Partner (or the death or
incapacity of any Limited Partner who is an individual), the General Partner or
its designee shall have the right to purchase the interest of such Limited
Partner at a price equal to the fair market value of such interest at such time.
For purposes hereof, a "Change of Control" shall mean the occurrence of any of
the following events: (A) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended [the
"Exchange Act"]), other than Permitted Holders (as hereinafter defined), is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have beneficial ownership
of all shares that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the voting stock of all classes of voting stock
of such Limited Partner; (B) such Limited Partner and any other person
consolidate or merge, in a transaction as a result of which Permitted Holders
are not "beneficial owners," directly or indirectly, of more than 50% of the
voting stock of all classes of voting stock of such Limited Partner; or (iii)
such Limited Partner is liquidated or dissolved or adopts a plan of liquidation
or dissolution. For purposes hereof, a "Permitted Holder" shall mean: (i) a
Partner or a wholly-owned subsidiary, or person beneficially owning 100% of the
capital stock, of such Partner; (ii) any executive officer or other member of
executive management employed as of the date of this Agreement by any person
referred to in clause (i) of this sentence; (iii) immediate family members of
persons described in clause (ii) of this sentence; (iv) trusts for the benefit
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of the persons described in clauses (ii) and (iii) of this sentence; and (v) in
the event of the death or incapacity of any of the persons described in clauses
(ii), (iii) and (iv) of this sentence, such person's estate, executor,
administrator, committee or other personal representatives or beneficiaries.
ARTICLE XI
DISSOLUTION AND TERMINATION OF THE PARTNERSHIP
Section 11.1 Events of Dissolution . The Partnership shall be dissolved
and its affairs wound-up upon the occurrence of the earliest of the following
events:
(a) the election to dissolve the Partnership made in writing
by the General Partner;
(b) the expiration of its term as provided in this Agreement;
(c) the entry of a decree of judicial dissolution; or
(d) except as otherwise provided herein, any act or event
specified in Section 17-801 of the Act or any successor
provision thereto.
Section 11.2 Liquidation. Upon the liquidation of the Partnership,
unless an election to continue the business of the Partnership is made pursuant
to Section 11.4 hereof, the Partners shall proceed without unnecessary delay to
sell or otherwise liquidate the property of the Partnership and, after payment
or adequate provision for the payment of all debts and obligations of the
Partnership, to distribute the net proceeds and any other assets of the
Partnership to the Partners pro rata in accordance with the positive balances of
their respective Capital Accounts.
Section 11.3 Termination. Dissolution of the Partnership shall be
effective on the day on which the event giving rise to the dissolution occurs,
but the Partnership shall not terminate until the assets of the Partnership
shall have been distributed as provided for herein. Notwithstanding the
dissolution of the Partnership, prior to the termination of the Partnership, the
Partnership business and the affairs of the Partnership shall continue to be
governed by this Agreement.
Section 11.4 Right to Continue Business. In the event of the death,
incompetency, bankruptcy or insolvency of a Partner, the remaining Partners
shall have the right to continue the business of the Partnership under its
present name, and such remaining Partners shall have the option to purchase the
Partnership interest of the bankrupt or insolvent Partner by paying to the legal
representative of the bankrupt or insolvent Partner, within one hundred twenty
(120) days after receipt of an appraisal from an appraiser mutually agreeable to
the parties, the fair market value of such Partner's Capital Account as
determined by, such appraisal, with the cost of such appraisal being borne by
the bankrupt or insolvent Partner.
12
ARTICLE XII
AMENDMENT OF THE PARTNERSHIP AGREEMENT
Amendments to this Agreement may be made by the General Partner without
the consent of any Limited Partner through the use of the power of attorney
described in Section 13.1 if those amendments are (i) of a non-material nature,
as reasonably determined by the General Partner, (ii) for the purpose of
admitting additional Limited Partners or reflecting the withdrawal of Limited
Partners, (iii) necessary to maintain the Partnership's status as a partnership
according to Section 7701(a)(2) of the Code, (iv) necessary to preserve the
validity of any and all allocations of Partnership income, gain, loss or
deduction pursuant to Section 704(b) of the Code or (v) contemplated by this
Agreement. The General Partner and the officers, directors, employees and other
agents of the General Partner shall devote so much of their time to the affairs
of the Partnership as in their judgment the conduct of its business shall
reasonably require.
ARTICLE XIII
ARBITRATION
Any controversy, claim or other dispute between or among any
Partner(s), on the one hand, any other Partner(s) and/or the Partnership, on the
other hand, arising out of or relating to this Agreement, shall be submitted for
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). Unless otherwise agreed to by all parties to
such dispute, arbitration before the AAA shall be held in the city, county and
state of New York.
13
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Power of Attorney. Each Limited Partner hereby constitutes
and appoints the General Partner as its true and lawful representative and
attorney-in-fact, in its name, place and stead and with full power of
substitution to make, execute, publish, acknowledge, deliver, record and file
and swear to the execution, delivery, acknowledgment, filing and/or recording
of: (a) all amendments to this Agreement permitted by the provisions of Article
XII to be made without the consent of any Limited Partner and all instruments
that the attorney-in-fact deems appropriate to reflect any change or
modification of this Agreement in accordance with this Agreement; (b) except as
otherwise provided in this Agreement, a Certificate of Limited Partnership of
the Partnership, any amendment thereof required because of an amendment to this
Agreement or in order to effectuate any change in the membership of the
Partnership; and (c) all such other agreements, applications, instruments,
documents, certifications, certificates and reports which may from time to time
be required by the laws of the United States of America, the State of Delaware
or any other jurisdiction, or any political subdivision or agency thereof, or
any Regulatory Rule, all of the foregoing to effectuate, implement and continue
the valid and subsisting existence of the Partnership and to permit it to
conduct its business. The power of attorney granted hereby is coupled with an
interest and is irrevocable and shall (i) continue in full force and effect
notwithstanding the subsequent death, incapacity, dissolution, termination or
bankruptcy of the Limited Partner granting the same or the transfer of all or
any portion of such Limited Partner's interest, and (ii) extend to that Limited
Partner's successors, assigns and legal representatives. Each Limited Partner
agrees to be bound by any representation made by the attorney-in-fact acting in
good faith pursuant to, and in accordance with, this power of attorney, and
hereby waives any and all defenses which may be available to contest, negate or
disaffirm the action of the attorney-in-fact taken in good faith pursuant to,
and in accordance with, this power of attorney.
Section 14.2 Additional Actions and Documents. Each Partner hereby
agrees to take or cause to be taken such further actions, to execute, deliver
and file or cause to be executed, delivered and filed such further documents and
instruments, as may be necessary or as may be reasonably requested in order to
fully effectuate the purposes, terms and conditions of this Agreement.
Section 14.3 Notices. All notices and demands required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly
given (a) upon receipt if delivered personally (unless subject to clause (b) of
this Section 14.3) or if mailed by registered or certified mail, (b) on the date
after dispatch if sent by overnight courier or (c) upon dispatch if transmitted
by telecopy or other means of facsimile which provides immediate delivery to
compatible equipment in the possession of the recipient, if receipt has been
confirmed, in any case, at the address of the Partnership at which such Partner
primarily performs its duties to the Partnership. Any Partner may specify a
different address or telecopy number by notifying all other Partners thereof.
14
Section 14.4 Severability. If any part of any provision of this
Agreement shall be invalid or unenforceable in any respect, such part shall be
ineffective to the extent of such invalidity or unenforceability only, without
in any way affecting the remaining parts of such provision or the remaining
provisions of this Agreement.
Section 14.5 Survival. It is the express intention and agreement of the
Partners that all covenants, agreements, statements, representations, warranties
and indemnities made this Agreement shall survive the execution and delivery of
this Agreement.
Section 14.6 Waivers. No delay or failure on the part of any Partner in
exercising any right, power or privilege hereunder shall impair any such right,
power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of any other right, power or
privilege. No waiver shall be valid against any Partner unless made in writing
and signed by the Partner against whom enforcement of such waiver is sought.
Section 14.7 Binding Effect. Subject to the provisions of this
Agreement restricting assignment, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
Section 14.8 Entire Agreement. This Agreement constitutes the entire
agreement among the Partners with respect to the subject matter hereof, and it
supersedes all prior oral or written agreements, commitments or understandings
with respect to the matters provided for herein.
Section 14.9 Headings. Article and Section headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
Section 14.10 Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO, AND ANY CLAIMS OR DISPUTES RELATING THERETO, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
EXCLUDING THE CHOICE OF LAW RULES THEREOF.
Section 14.11 Counterparts. This Agreement may be executed in as many
counterparts as may be required. All counterparts shall collectively constitute
a single agreement.
15
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
GENERAL PARTNER:
DUNE JET SERVICES, INC.
By: /S/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title:President
LIMITED PARTNERS:
NATIONAL RV HOLDINGS, INC.
By: /S/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title:Chief Financial Officer
DUNE JET SERVICES, INC.
By: /S/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title:President
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SCHEDULE A
============================== -------------- ------------ =================
Initial Additional Contribution
Partners Contribution Contribution Percentage
============================== -------------- ------------ =================
General Partner
============================== -------------- ------------ =================
Dune Jet Services, Inc. $1,550,000 -0- 20.5298013245%
============================== -------------- ------------ ==================
Limited Partners
============================== -------------- ------------ ==================
Dune Jet Services, Inc. -0- $3,250,000 43.0463576159%
============================== ============== ============ ==================
National R.V. Holdings, Inc. $1,000 $2,749,000 36.4238410596%
============================== ============== ============ ==================
17
