AGREEMENT OF LIMITED PARTNERSHIP OF RWS TRANSPORT, L.P.
Exhibit 3.883
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
RWS TRANSPORT, L.P.
OF
LIMITED PARTNERSHIP
OF
RWS TRANSPORT, L.P.
THIS
AGREEMENT OF LIMITED PARTNERSHIP of RWS TRANSPORT, L.P.
is made as of this 10th day of June, 2003, by and among REPUBLIC WASTE SERVICES OF
TEXAS GP, INC., a Delaware corporation (the “General Partner”), and REPUBLIC WASTE SERVICES OF
TEXAS LP, INC., a Delaware corporation (the “Initial Limited Partner”), 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.
W I T N E S S E T H:
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 June 10,
2003; 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
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 “control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting securities, by contract or
otherwise.
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“Agreement” means this Agreement of 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 faith
or gross negligence.
“General Partner” means Republic Waste Services of Texas GP, Inc., a Delaware corporation, and
includes any Person who becomes an additional or
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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 Waste Services of Texas LP, Inc., a Delaware
corporation, 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.
“Partnership” means RWS Transport, L.P., a Delaware limited partnership, the limited
partnership heretofore formed and continued under and pursuant to the Act and this Agreement.
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“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
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 “RWS TRANSPORT, L.P.”, 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 X.X. 0xx Xxxxxx, 00xx Xxxxx, Xxxx
Xxxxxxxxxx, XX 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
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
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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 commenced on the effective date of
this Agreement first set forth above and shall continue until the earlier of (i) thirty (30) years
from the date hereof, or (ii) the winding up and liquidation of the Partnership and its business
following an event of dissolution as described in Article XIII hereof.
ARTICLE III
NAMES AND ADDRESSES OF PARTNERS
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
CAPITAL CONTRIBUTIONS,
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.
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 A attached hereto. Such amount constitutes the agreed value of
the contribution made by each Limited Partner.
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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 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
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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
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
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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
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
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.
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.
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ARTICLE VII
REIMBURSEMENT OF EXPENSES TO GENERAL PARTNER
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
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 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
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Partner deems appropriate, recourse or non-recourse, 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 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
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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 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
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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 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
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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 a new 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
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 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
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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
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.
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:
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(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
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
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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
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
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
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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.
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
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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
EXCULPATION AND INDEMNIFICATION OF
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.
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
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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, 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.
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(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.
ARTICLE XIII
DISSOLUTION AND TERMINATION
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
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admission of additional General Partners or successor General Partners in accordance with the
terms of this Agreement.
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 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 percent (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 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
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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
ARBITRATION
Section 14.01. Dispute Resolution. To the fullest extent permitted by the Act and
other 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.
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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 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);
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(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
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.
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
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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 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
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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
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 WASTE SERVICES OF TEXAS GP, INC., a Delaware Corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | V.P./Secretary | |||
| INITIAL LIMITED PARTNER: REPUBLIC WASTE SERVICES OF TEXAS LP, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | V.P./Secretary | |||
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SCHEDULE A
TO
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
RWS TRANSPORT, L.P.
TO
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
RWS TRANSPORT, L.P.
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 | Cash | ||||||||
| General Partner | Number of Units | Contribution | |||||||
Republic Waste Services of
Texas GP, Inc. 000 XX 0xx Xxxxxx, 00xx Xxxxx Xxxx Xxxxxxxxxx, Xxxxxxx 00000 |
.05 | $5.00 | |||||||
|
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 Waste Services of Texas LP, Inc. 000 Xxxxxxxx Xxxx Xxxxxxxx, XX 00000 |
99.5 | $ | 995.00 | ||||||
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