EXHIBIT 3.14
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEAR KENTUCKY, L.P.,
A DELAWARE LIMITED PARTNERSHIP
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS...................................................... 1
1.1 "Act".............................................................. 1
1.2 "Adjusted Capital Account Deficit"................................. 1
1.3 "Affiliate"........................................................ 2
1.4 "Agreement" or "Partnership Agreement"............................. 2
1.5 "Assignee"......................................................... 2
1.6 "Available Cash Flow".............................................. 2
1.7 "Capital Account".................................................. 3
1.8 "Capital Contributions"............................................ 4
1.9 "Certificate"...................................................... 4
1.10 "Code"............................................................. 4
1.11 "Depreciation"..................................................... 4
1.12 "General Partner".................................................. 5
1.13 "Gross Asset Value"................................................ 5
1.14 "Interest"......................................................... 6
1.15 "Limited Partner".................................................. 6
1.16 "Nonrecourse Deductions"........................................... 6
1.17 "Nonrecourse Liability"............................................ 6
1.18 "Partner Minimum Gain"............................................. 6
1.19 "Partner Nonrecourse Debt"......................................... 7
1.20 "Partner Nonrecourse Deductions"................................... 7
1.21 "Partners"......................................................... 7
1.22 "Partnership"...................................................... 7
1.23 "Partnership Minimum Gain"......................................... 7
1.24 "Percentage Interest".............................................. 7
1.25 "Person"........................................................... 7
1.26 "Profits" and "Losses"............................................. 7
1.27 "Property"......................................................... 8
1.28 "Recapture Gain"................................................... 8
1.29 "Regulations"...................................................... 8
1.30 "Tax Matters Partner".............................................. 8
1.31 "Transfer"......................................................... 9
ARTICLE II
THE PARTNERSHIP.......................................................... 9
2.1 Organization....................................................... 9
2.2 Partnership Name................................................... 9
2.3 Purpose............................................................ 9
2.4 Principal Place of Business........................................ 9
2.5 Term............................................................... 9
2.6 Filings; Agent for Service of Process.............................. 9
2.7 Reservation of Other Business Opportunities........................ 10
ARTICLE III
PARTNERS' CAPITAL CONTRIBUTIONS;
ADDITIONAL FINANCING AND CONTRIBUTIONS................................... 10
3.1 General Partner.................................................... 10
3.2 Limited Partner.................................................... 10
3.3 Additional Financing............................................... 11
3.4 Other Matters...................................................... 11
ARTICLE IV
ALLOCATIONS.............................................................. 11
4.1 Profits............................................................ 11
4.2 Losses............................................................. 12
4.3 Special Allocations................................................ 12
(a) Minimum Gain Chargeback........................................ 12
(b) Qualified Income Offset........................................ 13
(c) Gross Income Allocation........................................ 14
(d) Nonrecourse Deductions......................................... 14
(e) Partner Nonrecourse Deductions................................. 14
(f) Section 754 Adjustments........................................ 14
4.4 Curative Allocations............................................... 14
4.5 Other Allocation Rules............................................. 15
4.6 Tax Allocations; Code Section 704(c)............................... 15
(e) Recapture Gain................................................. 16
ARTICLE V
DISTRIBUTIONS............................................................ 17
5.1 Distributions of Available Cash Flow............................... 17
5.2 Withholding........................................................ 17
ARTICLE VI
MANAGEMENT OF PARTNERSHIP................................................ 18
6.1 Management of Partnership.......................................... 18
6.2 Compensation and Expense Reimbursement of Partners................. 19
6.3 Limitation of Liability............................................ 20
6.4 Indemnification.................................................... 20
6.5 No Participation in Management..................................... 20
6.6 No Personal Liability.............................................. 20
ARTICLE VII
BOOKS AND RECORDS........................................................ 21
7.1 Books and Records.................................................. 21
7.2 Bank Accounts...................................................... 21
7.3 Tax Returns........................................................ 21
7.4 Tax Decisions and Elections........................................ 21
ARTICLE VIII
TRANSFER OR ASSIGNMENT OF PARTNERSHIP INTERESTS.......................... 22
8.1 Restrictions on Transfer........................................... 22
8.2 Admission of Transferees........................................... 22
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ARTICLE IX
DISSOLUTION AND WINDING UP............................................... 22
9.1 Liquidating Events................................................. 22
9.2 Winding Up......................................................... 23
9.3 Liquidating Trust.................................................. 24
ARTICLE X
MISCELLANEOUS............................................................ 24
10.1 Notices............................................................ 24
10.2 Binding Effect..................................................... 25
10.3 Creditors.......................................................... 25
10.4 Remedies Cumulative................................................ 25
10.5 Construction....................................................... 25
10.6 Headings........................................................... 25
10.7 Severability....................................................... 25
10.8 Incorporation by Reference......................................... 25
10.9 Further Action..................................................... 25
10.10 Variation of Pronouns.............................................. 25
10.11 Governing Law...................................................... 25
10.12 Waiver of Action for Partition..................................... 26
10.13 Counterpart Execution.............................................. 26
EXHIBIT A - PARTNERS' CAPITAL CONTRIBUTIONS
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AGREEMENT OF LIMITED PARTNERSHIP
OF
LEAR KENTUCKY, L.P.,
A DELAWARE LIMITED PARTNERSHIP
This AGREEMENT OF LIMITED PARTNERSHIP (this "Agreement") is
entered into this 31st day of December, 1997, by and between Lear Operations
Corporation, a Delaware corporation, as the General Partner, and Lear
Corporation Mendon, a Delaware corporation, as the Limited Partner, pursuant to
the provisions of the Delaware Revised Uniform Limited Partnership Act, on the
following terms and conditions:
WITNESSETH:
WHEREAS, the Partners desire to form a limited partnership
subject to the conditions and for the purposes stated herein to be known as Lear
Kentucky, L.P. (the "Partnership");
NOW, THEREFORE, in consideration of the mutual agreements,
covenants and undertakings herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings set forth in this Article I (such meanings to be equally applicable
in both the singular and plural forms of the term defined).
1.1 "Act" means the Delaware Revised Uniform Limited
Partnership Act, as amended from time to time (or any corresponding provisions
of succeeding law).
1.2 "Adjusted Capital Account Deficit" means, with respect to
any Limited Partner, the deficit balance, if any, in such Limited Partner's
Capital Account as of the end of the relevant Partnership taxable year, after
giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such
Partner is obligated to restore pursuant to any provision of this
Agreement or pursuant to Regulations Section 1.704-l(b)(2)(ii)(c) or
is deemed to be obligated to restore pursuant to the penultimate
sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5);
and
(ii) Debit to such Capital Account the items described in
Regulations Sections 1.704-l(b)(2)(ii)(d)(4), 1.704-l(b)(2)(ii)(d)(5)
and 1.704-l(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Regulations Section 1.704-l(b) (2)(ii)(d) and
shall be interpreted consistently therewith.
1.3 "Affiliate" means any (i) Person owning a majority
interest in any corporate Partner; (ii) Person owning an interest as a general
partner of any Partner or a majority interest as a limited partner of any
Partner; (iii) Person who is an officer, director, trustee, partner or
stockholder of any Partner or of any Person described in the preceding clause
(ii); or (iv) Person that is controlling, controlled by or under common control
with a Partner or any Person described in the preceding clauses (i), (ii) or
(iii).
1.4 "Agreement" or "Partnership Agreement" means this
Agreement of Limited Partnership, as amended from time to time. Words such as
"herein," "hereinafter," "hereof," and "hereunder" refer to this Agreement
as a whole, unless the context otherwise requires.
1.5 "Assignee" means any Person who has acquired a beneficial
interest in the Interest of a Partner in the Partnership.
1.6 "Available Cash Flow" means, with respect to the
applicable period of measurement (i.e., any period beginning on the first day of
the Partnership taxable year or other period commencing immediately after the
last day of the calculation of Available Cash Flow which was distributed, and
ending on the last day of the month, quarter or other applicable period
immediately preceding the date of calculation), the excess, if any, of the gross
cash receipts of the Partnership for such period from all sources whatsoever,
including, without limitation, the following:
(a) (i) all rents, revenues, income and proceeds derived by
the Partnership from its operations, including, without limitation,
distributions received by the Partnership from any entity in which the
Partnership has an interest; (ii) all proceeds and revenues received on
account of any sales of property of the Partnership as a refinancing
for payments of principal, interest, costs, fees, penalties or
otherwise on account of any loans made by the Partnership or,
financings or refinancings of any property of the Partnership; (iii)
the amount of any insurance proceeds and condemnation awards of
property of the Partnership; (iv) all Capital Contributions received by
the Partnership from its Partners; (v) all cash amounts previously
reserved by the Partnership, if the
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specific purposes for which such amounts were reserved are no longer
applicable; and (vi) the proceeds of liquidation of the Partnership's
property in accordance with this Agreement:
over the sum of:
(b) (i) all operating costs and expenses of the Partnership
and capital expenditures made during such period (without deduction,
however, for any capital expenditures, charges for depreciation or
other expenses not paid in cash or expenditures from reserves described
in (vii) below); (ii) all costs and expenses expended or payable
during such period in connection with the sale or other disposition,
or financing or refinancing, of property of the Partnership or the
recovery of insurance or condemnation proceeds; (iii) all fees
provided for under this Agreement; (iv) all debt service, including
principal and interest, paid during such period on all indebtedness of
the Partnership; (v) all Capital Contributions, advances,
reimbursements or similar payments made to any Person (whether a
partnership, corporation or other entity) in which the Partnership has
an interest; (vi) all loans made by the Partnership to any Person in
which the Partnership has an interest (whether a partnership,
corporation or other entity); and (vii) any reserves reasonably
determined by the General Partner for working capital, capital
improvements, payments of periodic expenditures, debt service or other
purposes.
1.7 "Capital Account" means, with respect to any Partner, the
Capital Account maintained for such Partner in accordance with the following
provisions:
(i) To each Partner's Capital Account there shall be credited
such Partner's Capital Contributions, such Partner's distributive share
of Profits and any items in the nature of income or gain which are
specially allocated pursuant to Sections 4.3 or 4.4 hereof, and the
amount of any Partnership liabilities assumed by such Partner or which
are secured by any Property distributed to such Partner.
(ii) To each Partner's Capital Account there shall be debited
the amount of cash and the Gross Asset Value of any Property
distributed to such Partner pursuant to any provision of this
Agreement, such Partner's distributive share of Losses and any items in
the nature of expenses or losses which are specially allocated pursuant
to Sections 4.3 or 4.4 hereof, and the amount of any liabilities of
such Partner assumed by the Partnership or which are secured by any
property contributed by such Partner to the Partnership.
(iii) In determining the amount of any liability for purposes
of the foregoing subparagraphs (i) and (ii), there
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shall be taken into account Code Section 752(c) and any other
applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with Regulations Sections 1.704-l(b) and 1.704-2, and shall be interpreted and
applied in a manner consistent with such Regulations. In the event the General
Partner shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Partnership,
General Partner or the Limited Partners) are computed in order to comply with
such Regulations, the General Partner may make such modification, provided that
it is not likely to have a material adverse effect on the amounts distributable
to any Partner pursuant to Article IX hereof upon the dissolution of the
Partnership. The General Partner also shall (i) make any adjustments that are
necessary or appropriate to comply with Regulations Section 1.704-l(b)(2)
(iv)(q) and (ii) make any appropriate modifications in the event unanticipated
events might otherwise cause this Agreement not to comply with Regulations
Sections 1.704-l(b) or 1.704-2.
1.8 "Capital Contributions" means, with respect to any
Partner, the amount of money and the initial Gross Asset Value of any property
(other than money) contributed to the Partnership with respect to the Interest
in the Partnership held by such Partner. The principal amount of a promissory
note which is not readily tradable on an established securities market and
which is contributed to the Partnership by the maker of the note shall not be
included in the Capital Account of any Person until the Partnership makes a
taxable disposition of the note or until (and to the extent) such Partner makes
principal payments on the note, all in accordance with Regulations Section
l.704-l(b)(2)(iv)(d)(2).
1.9 "Certificate" shall mean the Certificate of Limited
Partnership of the Partnership filed with the Secretary of State of Delaware in
accordance with the Act or the applicable predecessor statute thereof, as such
Certificate may be amended from time to time.
1.10 "Code" means the Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provisions of succeeding law).
1.11 "Depreciation" means, for each Partnership taxable year
or other period, an amount equal to the depreciation, amortization or other cost
recovery deduction allowable with respect to an asset for such year or other
period, except that, if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such year or
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other period, Depreciation shall be an amount which bears the same ratio to such
beginning Gross Asset Value as the federal income tax depreciation, amortization
or other cost recovery deduction for such year or other period bears to such
beginning adjusted tax basis; provided, however, that, if the federal income
tax depreciation, amortization or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the General Partner;
provided, further, however, that to the extent the "remedial" method
described in Regulations Section 1.704-3 is elected pursuant to the terms of
this Agreement, Depreciation shall be determined in a manner consistent
therewith.
1.12 "General Partner" means any Person which (i) is referred
to as such in the first paragraph of this Agreement or has become a General
Partner pursuant to the terms of this Agreement and (ii) has not ceased to be a
General Partner pursuant to the terms of this Agreement.
1.13 "Gross Asset Value" means, with respect to any asset, the
asset's adjusted basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by
a Partner to the Partnership shall be the gross fair market value of
such asset, as determined by the contributing Partner and the
Partnership;
(ii) The Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross fair market values, as
reasonably determined by the General Partner, as of the following
times: (a) the acquisition of an additional Interest in the Partnership
by any new or existing Partner in exchange for more than a de minimis
Capital Contribution; (b) the distribution by the Partnership to a
Partner of more than a de minimis amount of Partnership assets,
including money, as consideration for an Interest in the Partnership;
and (c) the liquidation of the Partnership within the meaning of
Regulations Section 1.704-l(b)(2)(ii)(g); provided, however, that
adjustments pursuant to clauses (a) and (b) above shall be made only if
the General Partner reasonably determines that such adjustments are
necessary or appropriate to reflect the relative economic interests of
the Partners in the Partnership;
(iii) The Gross Asset Value of any Partnership asset
distributed to any Partner shall be the gross fair market value of such
asset on the date of distribution, as reasonably determined by the
General Partner; and
(iv) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the
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adjusted basis of such assets pursuant to Code Sections 734(b) or
743(b), but only to the extent that such adjustments are taken into
account in determining Capital Accounts pursuant to Regulations Section
1.704-l(b)(2)(iv)(m) and the definition of "Capital Account" hereof;
provided; however, that Gross Asset Values shall not be adjusted
pursuant to this subparagraph (iv) to the extent the General Partner
determines that an adjustment pursuant to the foregoing subparagraph
(ii) of this definition hereof is necessary or appropriate in
connection with a transaction that would otherwise result in an
adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted pursuant
to any of the foregoing subparagraphs (i), (ii) or (iv), such Gross Asset Value
shall thereafter be adjusted by the Depreciation taken into account with
respect to such asset for purposes of computing Profits and Losses.
1.14 "Interest" means a Partner's ownership interest in the
Partnership, including any and all benefits to which the holder of such an
Interest may be entitled as provided in this Agreement, together with all
obligations of such Partner to comply with the terms and provisions of this
Agreement.
1.15 "Limited Partner" means the Person (i) the name of which
is set forth on Exhibit A attached hereto and designated as such or who has
become a Limited Partner pursuant to the terms of this Agreement and (ii) who
holds an Interest. "Limited Partners" means all such Persons if at any time
there shall be more than one Limited Partner. All references in this Agreement
to a majority in interest or a specified percentage of the Limited Partners
shall mean Limited Partners whose combined Percentage Interests represent more
than 50% or such specified percentage, respectively, of the Percentage Interests
then held by all Limited Partners.
1.16 "Nonrecourse Deductions" has the meaning set forth in
Regulations Section 1.704-2(b). The amount of Nonrecourse Deductions for a
Partnership taxable year equals the excess, if any, of the net increase, if
any, in the amount of Partnership Minimum Gain during that Partnership taxable
year over the aggregate amount of any distributions during that Partnership
taxable year of proceeds of a Nonrecourse Liability that are allocable to an
increase in Partnership Minimum Gain, determined according to the provisions of
Regulations Section 1.704-2(c).
1.17 "Nonrecourse Liability" has the meaning set forth in
Regulations Section 1.704-2(b)(3).
1.18 "Partner Minimum Gain" has the meaning set forth in the
definition of "partner nonrecourse debt minimum gain" in Regulations Section
1.704-2(i)(2), and shall be computed as provided in Regulations Section
1.704-2(i)(3).
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1.19 "Partner Nonrecourse Debt" has the meaning set forth in
Regulations Section 1.704-2(b)(4).
1.20 "Partner Nonrecourse Deductions" has the meaning set
forth in Regulations Section 1.704-2(i). The amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership taxable
year equals the excess, if any, of the net increase, if any, in the amount of
Partnership Minimum Gain attributable to such Partner Nonrecourse Debt during
that Partnership taxable year over the aggregate amount of any distributions
during that Partnership taxable year to the Partner that bears the economic risk
of loss for such Partner Nonrecourse Debt to the extent such distributions are
from the proceeds of such Partner Nonrecourse Debt and are allocable to an
increase in Partnership Minimum Gain attributable to such Partner Nonrecourse
Debt, determined in accordance with Regulations Section 1.704-2(i).
1.21 "Partners" means the General Partner and the Limited
Partners, where no distinction is required by the context in which the term is
used herein. "Partner" means any one of the Partners. All references in this
Agreement to a majority interest or a specified percentage of the Partners shall
mean Partners whose combined Percentage Interests represent more than 50% or
such specified percentage, respectively, of the Percentage Interests then held
by all Partners.
1.22 "Partnership" means the partnership formed pursuant to
this Agreement and the partnership continuing the business of this Partnership
in the event of dissolution as herein provided.
1.23 "Partnership Minimum Gain" has the meaning set forth in
Regulations Section 1.704-2(d).
1.24 "Percentage Interest" means the percentage set forth for
the General Partner and Limited Partners on Exhibit A hereto, as may be adjusted
from time to time by the General Partner in accordance with Section 3.2 hereof.
1.25 "Person" means any individual, general partnership,
limited partnership, corporation, trust or other association or entity.
1.26 "Profits" and "Losses" means, for each Partnership
taxable year or other period, an amount equal to the Partnership's taxable
income or loss for such year or period, determined in accordance with Code
Section 703(a) (for this purpose, all items of income, gain, loss or deduction
required to be stated separately pursuant to Code Section 703(a) (1) shall be
included in taxable income or loss), with the following adjustments:
(i) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in
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computing Profits or Losses pursuant to this definition shall be added
to such taxable income or loss;
(ii) Any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Regulations Section 1.704-l(b)(2)(iv)(i) and
not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be subtracted from such taxable
income or loss;
(iii) In the event the Gross Asset Value of any Partnership
asset is adjusted pursuant to subparagraph (ii) or (iv) of the
definition of Gross Asset Value hereof, the amount of such adjustment
shall be taken into account as gain or loss from the disposition of
such asset for purposes of computing Profits or Losses;
(iv) Gain or loss resulting from any disposition of property
with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Gross Asset Value of the
property disposed of notwithstanding that the adjusted tax basis of
such property differs from its Gross Asset Value;
(v) In lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable income
or loss, there shall be taken into account Depreciation for such
Partnership taxable year or other period, computed in accordance with
the definition of Depreciation herein; and
(vi) Notwithstanding any other provision of this definition of
"Profits" and "Losses," any items which are specially allocated
pursuant to Sections 4.3 or 4.4 hereof shall not be taken into account
in computing Profits or Losses.
1.27 "Property" means all real and personal property acquired
by the Partnership and any improvements thereto and shall include both tangible
and intangible property.
1.28 "Recapture Gain" has the meaning set forth in Section
4.3(g).
1.29 "Regulations" means the Income Tax Regulations,
including Temporary Regulations, promulgated under the Code, as such regulations
may be amended from time to time (including corresponding provisions of
succeeding regulations).
1.30 "Tax Matters Partner" shall mean the General Partner or
any successor General Partner.
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1.31 "Transfer" means, as a noun, any voluntary or
involuntary transfer, sale, pledge, hypothecation or other disposition or
encumbrance and, as a verb, voluntarily or involuntarily to transfer, sell,
pledge, hypothecate or otherwise dispose of or encumber.
ARTICLE II
THE PARTNERSHIP
2.1 Organization. The Partners hereby agree to form a limited
partnership pursuant to the provisions of the Act and upon the terms and
conditions set forth in this Agreement.
2.2 Partnership Name. The name of the Partnership shall be
Lear Kentucky, L.P. and all business of the Partnership shall be conducted in
such name or such other name as the General Partner shall determine. The
Partnership shall hold all of its property in the name of the Partnership and
not in the name of any Partner.
2.3 Purpose. The purpose and business of the Partnership is
the transaction of any and all lawful business for which limited partnerships
may be organized.
2.4 Principal Place of Business. The principal place of
business of the Partnership shall be 21557 Telegraph Road, Southfield, Michigan
48086, or such other location as may be designated by the General Partner from
time to time. The registered office of the Partnership in the State of Delaware
is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801
or such other location as may be designated by the General Partner from time to
time.
2.5 Term. The term of the Partnership commenced on the date on
which the Certificate was filed in the office of the Secretary of State of
Delaware in accordance with the Act and shall continue until the winding up and
liquidation of the Partnership and its business is completed, as provided in
Article IX hereof.
2.6 Filings; Agent for Service of Process.
(a) The Certificate has been filed in the office of the
Secretary of State of Delaware in accordance with the provisions of the Act. The
General Partner shall take any and all other actions reasonably necessary to
perfect and maintain the status of the Partnership as a limited partnership
under the laws of the State of Delaware which is qualified to do business and in
good standing in the State of Kentucky. The General Partner shall cause
amendments to the Certificate to be filed whenever required by the Act. Such
amendments may be executed by the General Partner only.
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(b) The General Partner shall execute and cause to be filed
original or amended Certificates and shall take any and all other actions as may
be reasonably necessary to perfect and maintain the status of the Partnership as
a limited partnership or similar type of entity under the laws of any other
states or jurisdictions in which the Partnership engages in business.
(c) The agent for service of process on the Partnership in the
State of Delaware, and the address of such agent, shall initially be The
Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County,
Delaware, 19801 or any successor as appointed by the General Partner. The agent
for service of process in the State of Texas shall be determined by the General
Partner. The General Partner, in its sole and absolute discretion, may change
the registered agent and appoint successor registered agents.
(d) Upon the dissolution of the Partnership, the General
Partner (or, in the event there is no remaining General Partner, the Person
responsible for winding up and dissolution of the Partnership pursuant to
Article IX hereof) shall promptly execute and cause to be filed certificates of
dissolution in accordance with the Act and the laws of any other states or
jurisdictions in which the Partnership has filed certificates.
2.7 Reservation of Other Business Opportunities. No business
opportunities other than those actually exploited by the Partnership pursuant to
Section 2.3 shall be deemed the property of the Partnership, and any Partner or
its Affiliates may engage in or possess an interest in any other business
venture, independently or with others, of any nature or description; and neither
any other Partner nor the Partnership shall have any rights by virtue hereof in
and to such other business ventures, or to the income or profits derived
therefrom. The provisions of this Section 2.7 shall be subject to, and not in
any way affect the enforceability of, any separate agreement by a Partner or
any Affiliate thereof restricting or prohibiting certain business activities of
such Partner or Affiliate.
ARTICLE III
PARTNERS' CAPITAL CONTRIBUTIONS;
ADDITIONAL FINANCING AND CONTRIBUTIONS
3.1 General Partner. The name, address, Capital Contribution
and Percentage Interest of the General Partner is set forth on Exhibit A
hereto.
3.2 Limited Partner. The name, address, Capital Contribution
and Percentage Interest of the Limited Partner is set forth on Exhibit A
attached hereto. Additional Limited Partners may be admitted upon the approval
of the General Partner; provided,
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however, that such admission will not cause the Partnership to have more than
100 Partners for purposes of Code Section 7704, as determined by the General
Partner. Any Person approved by the General Partner to be a Limited Partner
shall be admitted as a Limited Partner upon such Person (i) executing a
counterpart of this Agreement, (ii) making a Capital Contribution in the amount
to be determined by the General Partner, and (iii) paying to the Partnership
its reasonable out-of-pocket costs and expenses incurred in connection with the
admission of such Person as a Limited Partner. The General Partner shall update
Exhibit A from time to time to reflect any changes to the information set forth
therein. The General Partner shall provide the Limited Partners with an updated
Exhibit A within ten (10) days of any change to Exhibit A. Any amendment or
revision of Exhibit A shall not be deemed an amendment to this Agreement. Any
reference in this Agreement to Exhibit A shall be deemed to be a reference to
Exhibit A as amended and in effect from time to time.
3.3 Additional Financing. The sums of money required to finance the
business and affairs of the Partnership shall be derived from the Capital
Contributions made by the Partners to the Partnership, from funds generated from
the operation and the business of the Partnership and from any loans, bond
financing or other indebtedness which the General Partner may, in its
discretion, approve for the Partnership. No additional Capital Contributions
shall be made to the Partnership except at the direction of the General Partner.
3.4 Other Matters.
(a) Except as otherwise provided in this Agreement, no Partner shall
demand or receive a return of its Capital Contributions from the Partnership
without the consent of the other Partners. Under circumstances requiring a
return of any Capital Contributions, no Partner shall have the right to receive
property other than cash except as may be specifically provided herein.
(b) No Partner shall receive any interest, salary or drawing with
respect to its Capital Contributions or its Capital Account or for services
rendered on behalf of the Partnership or otherwise in its capacity as a Partner,
except as otherwise provided in this Agreement or with the consent of the other
Partner.
ARTICLE IV
ALLOCATIONS
4.1 Profits. After giving effect to the special allocations set forth in
Sections 4.3 and 4.4 hereof, Profits for any Partnership taxable year shall be
allocated, first, to the Partners in proportion to the cumulative Losses
allocated to each Partner, until the cumulative Profits allocated pursuant to
this
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Section 4.1 for the current and all prior Partnership taxable years are equal to
the cumulative Losses allocated to the Partners pursuant to Section 4.2 hereof
for all prior Partnership taxable years and, thereafter, to the Partners pro
rata in accordance with their Percentage Interests.
4.2 Losses.
(a) After giving effect to the special allocations set forth in Sections
4.3 and 4.4 hereof and subject to the limitation in Section 4.2(b) below, Losses
for any Partnership taxable year shall be allocated to the Partners pro rata in
accordance with their Percentage Interests.
(b) Notwithstanding the provisions of Section 4.2(a) hereof, Losses
shall not be allocated to any Partner if such allocation would cause such
Partner to have an, or increase the amount of an existing, Adjusted Capital
Account Deficit at the end of any Partnership taxable year. All Losses in excess
of the limitations set forth in this Section 4.2(b) shall be allocated to the
General Partner.
4.3 Special Allocations. The following special allocations shall be made
in the following order and priority:
(a) Minimum Gain Chargeback.
(i) Partnership Minimum Gain Chargeback. Notwithstanding any
other provision of this Article IV (other than Section 4.3(a) (iii)), if
there is a net decrease in Partnership Minimum Gain during any Partnership
taxable year, each Partner shall be specially allocated items of Partnership
income and gain for such year (and, if necessary, subsequent years) in
proportion to, and to the extent of, an amount equal to such Partner's share of
the net decrease in Partnership Minimum Gain determined in accordance with
Regulations Sections 1.704-2(g) and 1.704-2(i)(4). The items to be so
allocated shall be determined in accordance with Regulations Sections 1.704-2(f)
and 1.704-2(i). This Section 4.3(a) is intended to comply with the minimum gain
chargeback requirement in such section of the Regulations and shall be
interpreted consistently therewith.
(ii) Partner Minimum Gain Chargeback. Except as otherwise
provided in Regulations Section 1.704-2(i)(4), notwithstanding any other
provision of this Article IV, if there is a net decrease in Partner Minimum Gain
attributable to a Partner Nonrecourse Debt during any Partnership taxable
year, each Partner who has a share of the Partner Minimum Gain attributable to
such Partner Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(5), shall be specially allocated items of Partnership income and gain
for such Partnership taxable year (and, if necessary, subsequent Partnership
taxable years) in an amount
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equal to such Partner's share of the net decrease in Partner Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence
shall be made in proportion to the respective amounts required to be allocated
to each Partner pursuant thereto. The items to be so allocated shall be
determined in accordance with Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2). This Section 4.3 (a) (ii) is intended to comply with the minimum
gain chargeback requirement in Regulations Section 1.704-2(i)(4) and shall be
interpreted consistently therewith.
(iii) Exceptions to Section 4.3(a)(i). The allocation otherwise
required pursuant to Section 4.3(a) (i) shall not apply to a Partner to the
extent that: (A) such Partner's share of the net decrease in Minimum Gain is
caused by a guarantee, refinancing or other change in the instrument evidencing
a nonrecourse debt of the Partnership which causes such debt to become a
partially or wholly recourse debt or a Partner Nonrecourse Debt, and such
Partner bears the economic risk of loss (within the meaning of Regulations
Section 1.752-2) for such changed debt; (B) such Partner's share of the net
decrease in Minimum Gain results from the repayment of a nonrecourse liability
of the Partnership, which repayment is made using funds contributed by such
Partner to the capital of the Partnership; (C) the Internal Revenue Service,
pursuant to Regulations Section 1.704-2(f)(4), waives the requirement of such
allocation in response to a request for such waiver made by the General Partner
on behalf of the Partnership (which request the General Partner may or may not
make, in its sole discretion, if it determines that the Partnership would be
eligible therefor); or (D) additional exceptions to the requirement of such
allocation are established by revenue rulings issued by the Internal Revenue
Service pursuant to Regulations Section 1.7042(f)(5), which exceptions apply
to such Partner, as determined by the General-Partner in its sole discretion.
(b) Qualified Income Offset. Notwithstanding any other provision of this
Article IV, except Sections 4.3(a) and 4.3(e), in the event any Limited
Partner unexpectedly receives any adjustments, allocations or distributions
described in Regulations Sections 1.704-l(b) (2) (ii) (d) (4), 1.704-l(b) (2)
(ii) (d) (5) or 1.704-l(b) (2) (ii) (d)(6), items of Partnership income and gain
shall be specially allocated to each such Limited Partner in an amount and
manner sufficient to eliminate, to the extent required by the Regulations, the
Adjusted Capital Account Deficit of such Limited Partner as quickly as possible,
provided that an allocation pursuant to this Section 4.3 (b) shall be made only
if and to the extent that such Limited Partner would have an Adjusted Capital
Account Deficit after all other allocations provided for in this Article IV have
been tentatively made as if this Section 4.3(b) were not in the Agreement.
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(c) Gross Income Allocation. In the event any Partner has a Capital
Account deficit at the end of any Partnership taxable year which is in excess of
the sum of (i) the amount that such Partner is obligated to restore pursuant to
any provision of this Agreement and (ii) the amount that such Partner is deemed
to be obligated to restore pursuant to the penultimate sentences of Regulations
Sections 1.704-2(g) (1) and 1.704-2(i) (5), each such Partner shall be specially
allocated items of Partnership income and gain in the amount of such excess as
quickly as possible, provided that an allocation pursuant to this Section 4.3
(c) shall be made only if and to the extent that such Partner would have a
Capital Account deficit in excess of such sum after all other allocations
provided for in this Article IV have been made as if Section 4.3(b) hereof and
this Section 4.3(c) were not in the Agreement.
(d) Nonrecourse Deductions. Notwithstanding the provisions of Section
4.2 hereof, Nonrecourse Deductions for any Partnership taxable year or other
period shall be specially allocated to the Partners in accordance with their
respective Percentage Interests.
(e) Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions
for any Partnership taxable year or other period shall be specially allocated to
the Partner who bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable
in accordance with Regulations Section 1.704-2(i).
(f) Section 754 Adjustments. To the extent an adjustment of the adjusted
tax basis of any Partnership asset pursuant to Code Sections 734(b) or 743(b) is
required, pursuant to Regulations Section 1.704-l(b) (2) (iv) (m), to be taken
into account in determining Capital Accounts, the amount of such adjustment to
the Capital Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases such
basis) and such gain or loss shall be specially allocated to the Partners in a
manner consistent with the manner in which their Capital Accounts are required
to be adjusted pursuant to such section of the Regulations.
4.4 Curative Allocations. The allocations set forth in Section 4.3
hereof (the "Regulatory Allocations") are intended to comply with certain
requirements of Regulations Sections 1.704-l(b) and 1.704-2. Notwithstanding any
other provision of this Agreement, other than this Section 4.4, the Regulatory
Allocations shall be taken into account in allocating items of income, gain,
loss and deduction among the Partners so that, to the extent possible, the net
amount of such allocations of such other items and the Regulatory Allocations to
each Partner shall be equal to the net amount that would have been allocated to
each such Partner in each year as if the Regulatory Allocations had not
occurred.
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However, Regulatory Allocations relating to (i) Nonrecourse Deductions shall not
be taken into account except to the extent that there has been a decrease in
Partnership Minimum Gain, and (ii) Partner Nonrecourse Deductions shall not be
taken into account except to the extent that there has been a decrease in
Partner Minimum Gain. Allocations pursuant to this Section 4.4 shall only be
made with respect to Regulatory Allocations to the extent the General Partner
reasonably determines that such allocations will otherwise be inconsistent with
the economic agreement among the Partners. Further, allocations pursuant to this
Section 4.4 shall be deferred with respect to allocations pursuant to (i) and
(ii) above to the extent the General Partner reasonably determines that such
allocations are likely to be offset by subsequent Regulatory Allocations.
4.5 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses or any other items
allocable to any period, Profits, Losses and any such other items shall be
determined on a daily, monthly or other basis, as determined by the General
Partner using any permissible method under Code Section 706 and the Regulations
thereunder.
(b) For purposes of Regulations Section 1.752-3(a)(3), the Partners
agree that Nonrecourse Liabilities of the Partnership in excess of the sum of
(A) the amount of Partnership Minimum Gain and (B) the total amount of built-in
gain (as defined in Regulations Section 1.752-3(a) (2)) shall be allocated among
the Partners as determined by the General Partner in accordance with Code
Section 752 and applicable Regulations.
(c) In the event Interests are transferred in accordance with the
provisions of Article VIII hereof during any Partnership taxable year, the
distributive share of Partnership income, gain, loss and deductions attributable
to such transferred Interests for that year shall be apportioned between the
transferor and the transferee in proportion to the number of days during such
Partnership taxable year that each was the owner of the Interests transferred,
but subject to the constraints and limitations imposed by Code Section 706.
Distributions with respect to Interests transferred shall be made only to
Partners of record on a date designated by the General Partner as the date of
such distribution.
4.6 Tax Allocations; Code Section 704(c).
(a) In accordance with Code Section 704(c) and the Regulations
thereunder, solely for income tax purposes, income, gain, loss and deduction
with respect to any property contributed to the capital of the Partnership shall
be allocated among the Partners so as to take account of any variation between
the adjusted basis of such property to the Partnership for federal income tax
purposes and its initial Gross Asset Value.
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(b) In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to paragraph (ii) of the definition of "Gross Asset Value"
contained herein, solely for federal income tax purposes, subsequent allocations
of income, gain, loss and deduction with respect to such asset will take account
of any variation between the adjusted basis of such asset and its Gross Asset
Value in the same manner as under Code Section 704(c) and the Regulations
thereunder.
(c) Any elections or other decisions relating to allocations under this
Section 4.6, including the selection of any allocation method permitted under
Regulations Section 1.704-3, will be made by the General Partner in any manner
that reasonably reflects the purpose and intention of this Agreement. Except as
otherwise provided in this Section 4.6, all items of Partnership income, gain,
loss, deduction and credit will for tax purposes be divided among the Partners
in the same manner as they share correlative Profits, Losses or Partnership
items of income, gain, loss or deduction, as the case may be, for the
Partnership taxable year. Allocations pursuant to this Section 4.6 are solely
for purposes of federal, state and local taxes and will not affect, or in any
way be taken into account in computing, any Partner's Capital Account or share
of Profits, Losses or other items or distributions pursuant to any provision of
this Agreement.
(d) If any taxable item of income or gain is computed differently from
the taxable item of income or gain which results for purposes of the alternative
minimum tax, then to the extent possible, without changing the overall
allocations of items for purposes of either the Partners' Capital Accounts or
the regular income tax (i) each Partner will be allocated items of taxable
income or gain for alternative minimum tax purposes taking into account the
prior allocations of originating tax preferences or alternative minimum tax
adjustments to such Partner (and its predecessors) and (ii) other Partnership
items of income or gain for alternative minimum tax purposes of the same
character that would have been recognized, but for the originating tax
preferences or alternative minimum tax adjustments, will be allocated away from
those Partners that are allocated amounts pursuant to clause (i) so that, to the
extent possible, the other Partners are allocated the same amount, and type, of
alternative minimum tax income and gain that would have been allocated to them
had the originating tax preferences or alternative minimum tax adjustments not
occurred.
(e) Recapture Gain. If any portion of gain recognized from the
disposition of property by the Partnership represents the "recapture" of
previously allocated deductions by virtue of the application of Code Section
1245 or 1250 ("Recapture Gain"), such Recapture Gain will be allocated in the
following order and priority:
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(i) to the Partners in proportion to the lesser of each
Partner's (i) allocable share of the total gain recognized from the disposition
of such Partnership property and (ii) share of depreciation or amortization with
respect to such property (as determined under Proposed Treasury Regulation
section 1.1245-l(e) (2)), until each such Partner has been allocated
Recapture Gain equal to such lesser amount; and
(ii) the balance of Recapture Gain will be allocated among the
Partners whose allocable shares of total gain exceed their shares of
depreciation or amortization with respect to such property (as determined under
Proposed Treasury Regulation section 1.1245-1(e)(2)), in proportion. to their
shares of total gain (including Recapture Gain) from the disposition of such
property;
provided, however, that no Partner will be allocated Recapture Gain under this
Section 4.3(g) in excess of the total gain allocated to such Partner from such
disposition.
ARTICLE V
DISTRIBUTIONS
5.1 Distributions of Available Cash Flow. Except as otherwise provided
in Article IX hereof, Available Cash Flow, if any, shall be distributed, at
such times as the General Partner may determine to be appropriate, to the
Partners in accordance with their respective Percentage Interests. To the extent
that any distribution made to a Partner pursuant to this Section 5.1 creates, or
increases the amount of, an Adjusted Capital Account Deficit for such Partner,
such amount of the distribution shall be a draw against such Partner's future
distributive share of Profits, Losses and items thereof to be allocated to such
Member for the LLC taxable year under Article IV.
5.2 Withholding. Notwithstanding any other provision of this Agreement,
the Tax Matters Partner is authorized to take any action that it determines to
be necessary or appropriate to cause the Partnership to comply with any
withholding requirements established under any federal, state or local tax law,
including, without limitation, withholding on any distribution to any Partner.
For all purposes of this Article V, any amount withheld on any distribution and
paid over to the appropriate governmental body shall be treated as if such
amount had, in fact, been distributed to the Partner.
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ARTICLE VI
MANAGEMENT OF PARTNERSHIP
6.1 Management of Partnership.
(a) The exclusive management and control of the business and affairs of
the Partnership shall be vested in the General Partner. The powers of the
General Partner shall include all powers, statutory or otherwise, possessed by
or permitted to general partners under the laws of the State of Delaware. Each
Partner hereby waives any and all claims such Partner may have against the
Partnership or any other Partner for breach of fiduciary duty or other similar
responsibility or obligation. The General Partner shall have full power and
authority to do all things deemed necessary or desirable by it to conduct the
business of the Partners, including, without limitation, the following:
(i) the making of any expenditures, the lending or borrowing of
money, the assumption, guarantee of or other contracting of indebtedness
and other liabilities, the issuance of evidences of indebtedness and the
incurring of any obligations it deems necessary for the conduct of the
activities of the Partnership;
(ii) the making of tax, regulatory and other filings or
rendering of periodic or other reports to governmental or other agencies
having jurisdiction over the Partnership or the business or assets of the
Partnership;
(iii) the acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation or exchange of any assets of the Partnership or
the merger or other combination of the Partnership with or into another
entity;
(iv) the use of the assets of the Partnership (including,
without limitation, cash on hand) for any purpose and on any terms it sees
fit, including, without limitation, the financing of the conduct of the
operations of the General Partner or the Partnership, the lending of funds
to other Persons and the repayment of obligations of the Partnership;
(v) the negotiation, execution and performance of any
contracts, conveyances or other instruments that the General Partner
considers useful or necessary to the conduct of the Partnership's
operations or the implementation of the General Partner's powers under this
Agreement;
(vi) the distribution of Partnership cash or other Partnership
assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the
Partnership or the General Partner and agents, outside
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attorneys, accountants, consultants and contractors of the General Partner
or the Partnership and the determination of their compensation and other
terms of employment or hiring;
(viii) the maintenance of insurance for the benefit of the
Partnership;
(ix) the formation of or acquisition of an interest in and the
contribution of property to any further limited or general partnerships,
joint ventures or other relationships that it deems desirable;
(x) the control of any matters affecting the rights and
obligations of the Partnership, including the conduct of litigation,
incurring of legal expense and settlement of claims and litigation and the
indemnification of any Person against liabilities and contingencies to the
extent permitted by law;
(xi) the undertaking of any action in connection with the
Partnership's direct or indirect investment in any other Person (including,
without limitation, the contribution or loan of funds by the Partnership to
such Persons); and
(xii) the determination of the fair market value of any
Partnership property distributed in kind using such reasonable method of
valuation as it may adopt.
(b) The Limited Partners agree that the General Partner is authorized to
execute, deliver and perform the above-mentioned agreements and transactions on
behalf of the Partnership without any further act, approval or vote of the
Limited Partners.
(c) At all times from and after the date hereof, the General Partner may
cause the Partnership to obtain and maintain casualty, liability and other
insurance on the properties and on the activities of the Partnership.
(d) At all times from and after the date hereof, the General Partner may
cause the Partnership to establish and maintain working capital reserves in such
amounts as the General Partner, in its sole and absolute discretion, deems
appropriate and reasonable from time to time.
6.2 Compensation and Expense Reimbursement of Partners.
(a) No payment will be made by the Partnership for the services of any
Partner or any member, employee, agent or partner of any Partner or an Affiliate
thereof, except as may be expressly approved by the General Partner.
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(b) Each of the Partners, and all Affiliates thereof, shall be
reimbursed by the Partnership for the reasonable out-of-pocket expenses
incurred by such Partner, or an Affiliate thereof, on behalf of the Partnership
in connection with the business and affairs of the Partnership, including all
legal, accounting, travel and other similar expenses reasonably incurred by the
Partners in connection with the formation of the Partnership or the acquisition,
development, renovation, rehabilitation, repair, management or operation of the
Partnership Property.
6.3 Limitation of Liability. Neither the Partners, nor any officer,
director, partner, employee or Affiliate of any Partner shall be liable,
responsible or accountable in damages or otherwise to the Partnership or any
Partner for any action taken or failure to act on behalf of the Partnership
within the scope of the authority conferred on such Person by this Agreement or
by law, unless such action or omission was performed or omitted fraudulently or
in bad faith or constituted gross negligence or willful misconduct.
6.4 Indemnification. The Partnership shall indemnify and hold harmless
the General Partner and the Limited Partners and each of their respective
partners, officers, directors, stockholders, employees, agents and Affiliates
(collectively the "Parties") from and against any loss, expense, damage or
injury suffered or sustained by the Parties (or any of them) by reason of any
acts, omissions or alleged acts or omissions arising out of its or their
activities on behalf of the Partnership or in furtherance of the interests of
the Partnership, including, but not limited to, any judgment, award,
settlement, reasonable attorney's fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim provided that the acts, omissions or alleged acts or omissions upon which
such actual or threatened action, proceeding or claim is based was performed or
omitted in good faith and were not performed or omitted fraudulently or in bad
faith or as a result of gross negligence or willful misconduct by any such Party
and provided that such Party reasonably believed that the acts, omissions, or
alleged acts or omissions upon which such actual or threatened action,
proceeding or claim is based was in the best interests of the Partnership. Such
indemnification shall be made only to the extent of the assets of the
Partnership.
6.5 No Participation in Management. The Limited Partners shall not
participate in the management or control of the Partnership's business, nor
shall the Limited Partners transact any business for the Partnership or have the
power to act for or bind the Partnership, said powers being vested solely and
exclusively in the General Partner.
6.6 No Personal Liability. The Limited Partners shall not have any
personal liability whatsoever, whether to the
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Partnership, to the General Partner or to the creditors of the Partnership for
the debts, obligations, expenses or liabilities of the Partnership or any of its
losses, beyond the Limited Partner's Capital Contribution.
ARTICLE VII
BOOKS AND RECORDS
7.1 Books and Records. The General Partner shall keep proper and usual
books and records pertaining to the Partnership's business on an accrual basis
in accordance with tax accounting principles or generally accepted accounting
principles consistently applied, showing all of its assets and liabilities,
receipts and disbursements, profits and losses, Partners' Capital Contributions
and distributions and all transactions entered into by the Partnership. The
books and records and all files of the Partnership shall be kept at its
principal office or such other place as the General Partner may designate from
time to time. The fiscal year of the Partnership shall end on December 31 of
each year.
7.2 Bank Accounts. Funds of the Partnership shall be deposited in an
account or accounts in the bank or banks designated by the General Partner. Such
account or accounts shall be in the name of the Partnership and shall be subject
to withdrawal only upon signatures of those Persons authorized from time to time
by the General Partner.
7.3 Tax Returns. Federal, state and local tax returns of the Partnership
shall be prepared and timely filed by or at the direction of the General Partner
at the expense of the Partnership.
7.4 Tax Decisions and Elections.
(a) The General Partner is hereby designated the "Tax Matters Partner"
of the Partnership for all purposes under this Agreement and as such term is
defined under the Code.
(b) Each Partner acknowledges that this Agreement creates a partnership
for federal and state income tax purposes, and hereby agrees not to elect
under Code Section 761 or applicable state law to be excluded from the
application of Subchapter K of Chapter 1 of Subtitle A of the Code or any
similar state statute.
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ARTICLE VIII
TRANSFER OR ASSIGNMENT OF PARTNERSHIP INTERESTS
8.1 Restrictions on Transfer. Each Partner may Transfer all or
any portion of its rights or Interest in the Partnership, but may not withdraw
or retire from the Partnership without the prior written consent of the General
Partner; provided, however, no Transfer by a Partner will be permitted, without
the prior written consent of the General Partner (or if the Transferor is the
General Partner, by Limited Partners holding more than 50% of the Percentage
Interests of all Limited Partners) if, in each case as determined by the General
Partner, such disposition would cause there to be more than 100 Partners for
purposes of Code Section 7704. Further, no Transfer will be permitted until the
Transferee (a) delivers to the General Partner a written instrument evidencing
such Transfer; (b) executes a copy of this Agreement accepting and agreeing to
all of the terms, conditions and provisions of this Agreement; and (c) pays to
the Partnership its reasonable out-of-pocket costs and expenses incurred in
connection with such Transfer and the admission of the Transferee as a Partner.
8.2 Admission of Transferees. A Transferee of a Partner
Interest in accordance with the provisions of Section 8.1 of this Article VIII
shall be admitted as a Partner with respect to the Interest Transferred upon the
fulfillment of such provisions. Until such provisions are fulfilled, a
Transferee shall not be admitted to the Partnership or otherwise be recognized
by the Partnership as having any rights as a Partner, including any right to
receive distributions from the Partnership (directly or indirectly) or to
acquire an interest in the capital or profits of the Partnership.
ARTICLE IX
DISSOLUTION AND WINDING UP
9.1 Liquidating Events. The Partnership shall dissolve and
commence winding up and liquidating upon the first to occur of any of the
following ("Liquidating Events"):
(a) December 31, 2047;
(b) The sale of all or substantially all of the Property;
(c) The unanimous agreement of all Partners; or
(d) The happening of any other event that makes it unlawful,
impossible or impractical to carry on the business of the Partnership;
or
(e) an event of dissolution required under the Act.
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The Partners hereby agree that, notwithstanding any provision of the Act, the
Partnership shall not dissolve prior to the occurrence of a Liquidating Event.
Furthermore, if an event specified in Section 9.1(e) hereof occurs, the
remaining Partners may, within ninety (90) days of the date such event occurs,
unanimously vote to elect a successor General Partner (if necessary) and
continue the Partnership business, in which case the Partnership shall not
dissolve and the occurrence of the event under Section 9.1(e) shall not be
deemed a Liquidating Event. The Partners further agree that in the event the
Partnership is dissolved prior to a Liquidating Event, the Partnership may be
continued upon the unanimous vote of the existing Partners at such time to so
continue the Partnership, provided such vote occurs within thirty (30) days of
the event triggering such dissolution.
9.2 Winding Up. Upon the occurrence of a Liquidating Event,
the Partnership shall continue solely for the purpose of winding up its affairs
in an orderly manner, liquidating its assets and satisfying the claims of its
creditors and Partners. No Partner shall take any action that is inconsistent
with, or not necessary to or appropriate for, the winding up of the
Partnership's business and affairs. The General Partner (or, in the event there
is no General Partner, the Limited Partners or any Person elected by a majority
of the Limited Partners) shall be responsible for overseeing the winding up and
dissolution of the Partnership and shall take full account of the Partnership's
liabilities and the Partnership Property shall be liquidated as promptly as is
consistent with obtaining the fair value thereof (but not later than the end of
the LLC taxable year in which such Liquidating Event occurred, or if later,
within 90 days of such Liquidating Event), and the proceeds therefrom, to the
extent sufficient, shall be applied and distributed in the following order:
(a) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors other than Partners;
(b) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to Partners; and
(c) The balance, if any, to the General Partner and Limited
Partners in accordance with their respective positive Capital Accounts,
after giving effect to all contributions, distributions and allocations
for all periods.
No partner shall have no obligation to make any contribution to the capital of
the Partnership with respect to any deficit in its Capital Account, and such
deficit shall not be considered a debt owed to the Partnership or to any other
Person for any purpose whatsoever.
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9.3 Liquidating Trust. In the discretion of the General
Partner (or such other Person responsible for overseeing the winding up and
dissolution of the Partnership), a pro rata portion of the distributions that
would otherwise be made to the General Partner and Limited Partners pursuant to
this Article IX may be:
(a) distributed to a trust established for the benefit of the
General Partner and the Limited Partners, provided such trust is a
liquidating trust or a grantor trust for federal income tax purposes,
for the purpose of liquidating Partnership assets, collecting amounts
owed to the Partnership and paying any contingent or unforeseen
liabilities or obligations of the Partnership or of the General Partner
arising out of or in connection with the Partnership. The assets of any
such trust shall be distributed to the General Partner and the Limited
Partners from time to time at such times and in such amounts as
determined, in the reasonable discretion of the General Partner (or
such other Person responsible for overseeing the winding up and
dissolution of the Partnership), to be appropriate in the same
proportions as the amount distributed to such trust by the Partnership
would otherwise have been distributed to the General Partner and the
Limited Partners pursuant to this Agreement; or
(b) withheld to provide a reasonable reserve for Partnership
liabilities (contingent or otherwise) and to reflect the unrealized
portion of any installment obligations owed to the Partnership,
provided that such withheld amounts shall be distributed to the General
Partner and the Limited Partners as soon as practicable.
ARTICLE X
MISCELLANEOUS
10.1 Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given on the date of service if served personally; three (3) business days after
the date of mailing, if mailed, by first class mail, registered or certified,
postage prepaid; one (1) business day after delivery to the courier if sent by
private receipt courier guaranteeing next day delivery, delivery charges
prepaid, and in each case, addressed as set forth on Exhibit A hereto or at such
other place as the respective Partner may, from time to time, designate in a
written notice to the other Partners. All communications among Partners in the
normal course of the Partnership business shall be deemed sufficiently given if
sent by regular mail, postage prepaid.
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10.2 Binding Effect. Except as otherwise provided in this
Agreement, every covenant, term and provision of this Agreement shall be binding
upon and inure to the benefit of the Partners and their respective heirs,
legatees, legal representatives, successors, transferees and assigns.
10.3 Creditors. None of the provisions of this Agreement shall
be for the benefit of or enforced by any creditor of the Partnership or any
Partner.
10.4 Remedies Cumulative. No remedy herein conferred upon any
party is intended to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
10.5 Construction. Every covenant, term and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Partner.
10.6 Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
10.7 Severability. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this Agreement.
10.8 Incorporation by Reference. Every exhibit, schedule and
other appendix attached to this Agreement and referred to herein is hereby
incorporated in this Agreement by reference.
10.9 Further Action. Each Partner, upon the request of the
General Partner, agrees to perform all further acts and execute, acknowledge and
deliver any documents which may be reasonably necessary, appropriate or
desirable to carry out the provisions of this Agreement.
10.10 Variation of Pronouns. All pronouns and any variations
thereof shall be deemed to refer to masculine, feminine or neuter, singular or
plural, as the identity of the Person or Persons may require.
10.11 Governing Law. The laws of the State of Delaware shall
govern the validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the Partners, without regard to the
principles of conflicts of laws.
- 25 -
10.12 Waiver of Action for Partition. Each of the Partners
irrevocably waives any right that it may have to maintain any action for
partition with respect to any of the Partnership Property.
10.13 Counterpart Execution. This Agreement may be executed in
any number of counterparts with the same effect as if all of the Partners had
signed the same document. All counterparts shall be construed together and shall
constitute one agreement.
[SIGNATURE PAGE FOLLOWS]
- 26 -
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the day first above set forth.
GENERAL PARTNER:
LEAR OPERATIONS CORPORATION a
Delaware corporation
By: /s/ Joseph F. McCarthy
---------------------------------------
Name: Joseph F. McCarthy
Title: Vice President, Secretary and
General Counsel
LIMITED PARTNER:
LEAR CORPORATION MENDON a Delaware
corporation
By: /s/ Joseph F. McCarthy
---------------------------------------
Name: Joseph F. McCarthy
Title: Vice President
- 27 -
EXHIBIT A
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEAR KENTUCKY, L.P.,
A DELAWARE LIMITED PARTNERSHIP
GROSS ASSET VALUE OF PERCENTAGE
NAMES AND ADDRESSES CAPITAL CONTRIBUTIONS PROPERTY CONTRIBUTED INTERESTS
- ------------------- --------------------- -------------------- ---------
GENERAL PARTNER:
Lear Operations See Schedule A $ 30,766,000 99.9%
Corporation
LIMITED PARTNER:
Lear Corporation $ 30,766 $ 30,797
Mendon 0.1%
---------------- ------------- -------
TOTALS $ 30,796,796 $ 30,796,797 100%
Schedule A
1. All of Lear Operations Corporation's ("LOC") right, title and interest
in real property located at 12510 Westport Road, Louisville, Kentucky
40241 (the "Louisville Facility"), together with all assets and
tangible personal property of LOC used in connection with the operation
of the Louisville Facility of every kind and description, real,
personal and mixed, wherever located and whether or not reflected on
the books and records of LOC, including, without limitation:
a. All buildings located at the Louisville Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Louisville Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Louisville Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Louisville Facility or employees of the Louisville
Facility;
e. Any bank accounts and funds contained therein relating to the
Louisville Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Louisville Facility on the date hereof, known
or unknown, fixed or unfixed, whether or not specifically
referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.
2. All of LOC's right, title and interest in real property located at 850
Industrial Road, P.O. Box 1167, Madisonville, Kentucky 42431 (the
- 2 -
("Madisonville Facility"), together with all assets and tangible
personal property of LOC used in connection with the operation of the
Madisonville Facility of every kind and description, real, personal and
mixed, wherever located and whether or not reflected on the books and
records of LOC, including, without limitation:
a. All buildings located at the Madisonville Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Madisonville Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Madisonville Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Madisonville Facility or employees of the Madisonville
Facility;
e. Any bank accounts and funds contained therein relating to the
Madisonville Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Madisonville Facility on the date hereof,
known or unknown, fixed or unfixed, whether or not
specifically referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.
- 3 -
FIRST AMENDMENT
THIS FIRST AMENDMENT, dated as of December 30, 1998 (this
"Amendment"), to the Limited Partnership Agreement of Lear Kentucky, L.P., a
Delaware limited partnership (the "LP"), dated as of December 31, 1997 (as
amended, supplemented or otherwise modified from time to time, the "LP
Agreement"), by Lear Operations Corporation, a Delaware corporation (the
"General Partner"), and Lear Corporation Mendon, a Delaware corporation (the
"Limited Partner" and together with the General Partner, the "Partners").
WITNESETH
WHEREAS, the Partners desire to change the general partner of
the LP;
NOW THEREFORE, the Partners hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the LP Agreement and used herein shall have the meanings given to
them in the LP Agreement.
2. Amendments to LP Agreements.
(a) The introductory paragraph to the LP Agreement is
hereby amended by deleting it in its entirety and inserting in lieu thereof the
following:
"This AGREEMENT OF LIMITED PARTNERSHIP (this "Agreement") is entered into this
31st day of December, 1997, by and between Lear Operations Corporation, a
Delaware corporation, as the Limited Partner, and Lear Corporation Mendon, a
Delaware corporation, as the General Partner, pursuant to the provisions of the
Delaware Revised Uniform Limited Partnership Act, on the following terms and
conditions:"
(b) Exhibit A to the LP Agreement is hereby amended
by deleting it in its entirety and inserting in lieu thereof the Exhibit A
attached hereto.
3. Effectiveness. This Amendment shall become effective as of
December 30, 1998.
4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE.
5. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives, successor, transferees and assigns.
IN WITNESS WHEREOF, the Partners have executed this Amendment
as of the day first above set forth.
LEAR OPERATIONS CORPORATION
By: /s/ Raymond F. Lowry
---------------------------------
Name: Raymond F. Lowry
Title: Vice President and Treasurer
LEAR CORPORATION MENDON
By: /s/ Joseph F. McCarthy
---------------------------------
Name: Joseph F. McCarthy
Title: Vice President and Secretary
EXHIBIT A
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEAR KENTUCKY, L.P.
A DELAWARE LIMITED PARTNERSHIP
GROSS ASSET
VALUE OF
CAPITAL PROPERTY PERCENTAGE
NAMES CONTRIBUTIONS CONTRIBUTED INTEREST
----- ------------- ----------- --------
LIMITED PARTNER:
Lear Operations See Schedule A $30,766,000 99.9%
Corporation
GENERAL PARTNER:
Lear Corporation
Mendon $ 30,766 $ 30,797 0.1%
TOTALS $ 30,796,796 $30,796,796 100%
Schedule A
1. All of Lear Operations Corporation's ("LOC") right, title and interest
in real property located at 12510 Westport Road, Louisville, Kentucky
40241 (the "Louisville Facility"), together with all assets and
tangible personal property of LOC used in connection with the operation
of the Louisville Facility of every kind and description, real,
personal and mixed, wherever located and whether or not reflected on
the books and records of LOC, including, without limitation:
a. All buildings located at the Louisville Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Louisville Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Louisville Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Louisville Facility or employees of the Louisville
Facility;
e. Any bank accounts and funds contained therein relating to the
Louisville Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Louisville Facility on the date hereof, known
or unknown, fixed or unfixed, whether or not specifically
referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.
2. All of LOC's right, title and interest in real property located at 850
Industrial Road, P.O. Box 1167, Madisonville, Kentucky 42431 (the
"Madisonville Facility"), together with all assets and tangible
personal property of LOC used in connection with the operation of the
Madisonville Facility of every kind and description, real, personal and
mixed, wherever located and whether or not reflected on the books and
records of LOC, including, without limitation:
a. All buildings located at the Madisonville Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Madisonville Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Madisonville Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Madisonville Facility or employees of the Madisonville
Facility;
e. Any bank accounts and funds contained therein relating to the
Madisonville Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Madisonville Facility on the date hereof,
known or unknown, fixed or unfixed, whether or not
specifically referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.
SECOND AMENDMENT
THIS SECOND AMENDMENT, dated as of December 31, 1998 (this
"Amendment"), to the Limited Partnership Agreement of Lear Kentucky, L.P., a
Delaware limited partnership (the "LP"), dated as of December 31, 1997 (as
amended, supplemented or otherwise modified from time to time, the "LP
Agreement"), by Lear Corporation Mendon, a Delaware corporation (the "General
Partner"), and Lear Midwest, Inc., a Kentucky corporation (the "Limited Partner"
and together with the General Partner, the "Partners").
W I T N E S E T H
WHEREAS, the Partners desire to change the name of the LP;
NOW THEREFORE, the Partners hereby agrees as follows:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the LP Agreement and used herein shall have the meanings given to
them in the LP Agreement.
2. Amendments to the LP Agreement.
(a) The title page to the LP Agreement is hereby
amended by deleting it in its entirety and inserting in lieu thereof the
following:
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEAR MIDWEST AUTOMOTIVE, LIMITED PARTNERSHIP
(f/k/a Lear Kentucky, L.P.),
A DELAWARE LIMITED PARTNERSHIP
(b) The first page of the LP Agreement is hereby
amended by deleting the title portion of the page preceding the first,
introductory, paragraph by deleting it in its entirety and inserting in lieu
thereof the following:
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEAR MIDWEST AUTOMOTIVE, LIMITED PARTNERSHIP
(f/k/a Lear Kentucky, L.P.),
A DELAWARE LIMITED PARTNERSHIP
(c) The first "Whereas" clause to the LP Agreement is
hereby amended by deleting the "Lear Kentucky, L.P." in the first sentence
thereof and inserting in lieu thereof "Lear Midwest Automotive, Limited
Partnership (f/k/a Lear Kentucky, L.P.)."
(d) Section 2.2 to the LP Agreement is hereby amended
by deleting the words "Lear Kentucky, L.P." in the first sentence thereof and
inserting in lieu thereof "Lear Midwest Automotive, Limited Partnership (f/k/a
Lear Kentucky, L.P.)."
(c) Exhibit A to the LP Agreement is hereby amended
by deleting it in its entirety and inserting in lieu thereof the Exhibit A
attached hereto.
3. Effectiveness. This Amendment shall become effective as of
December 31, 1998.
4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE.
5. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives, successor, transferees and assigns.
IN WITNESS WHEREOF, the Partners have executed this Amendment
as of the day first above set forth.
LEAR MIDWEST, INC.
By: /s/ Joseph F. McCarthy
---------------------------------
Name: Joseph F. McCarthy
Title: Vice President and Secretary
LEAR CORPORATION MENDON
By: /s/ Raymond F. Lowry
---------------------------------
Name: Raymond F. Lowry
Title: Vice President and Treasurer
EXHIBIT A
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEAR MIDWEST AUTOMOTIVE, LIMITED PARTNERSHIP
(f/k/a Lear Kentucky, L.P.),
A DELAWARE LIMITED PARTNERSHIP
GROSS ASSET
VALUE OF
CAPITAL PROPERTY PERCENTAGE
NAMES CONTRIBUTIONS CONTRIBUTED INTEREST
----- ------------- ----------- --------
LIMITED PARTNER:
Lear Midwest, Inc. See Schedule Al $30,766,000
See Schedule A2 $37,500,000 99.9%
GENERAL PARTNER:
Lear Corporation
Mendon $ 30,766 $ 30,797
$ 37,500 $ 37,500 0.1%
TOTALS $ 68,334,297 $68,334,297 100%
Schedule A1
1. All of Lear Operations Corporation's ("LOC") right, title and interest
in real property located at 12510 Westport Road, Louisville, Kentucky
40241 (the "Louisville Facility"), together with all assets and
tangible personal property of LOC used in connection with the operation
of the Louisville Facility of every kind and description, real,
personal and mixed, wherever located and whether or not reflected on
the books and records of LOC, including, without limitation:
a. All buildings located at the Louisville Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Louisville Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Louisville Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Louisville Facility or employees of the Louisville
Facility;
e. Any bank accounts and funds contained therein relating to the
Louisville Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Louisville Facility on the date hereof, known
or unknown, fixed or unfixed, whether or not specifically
referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.
2. All of LOC's right, title and interest in real property located at 850
Industrial Road, P.O. Box 1167, Madisonville, Kentucky 42431 (the
"Madisonville Facility"), together with all assets and tangible
personal property of LOC used in connection with the operation of the
Madisonville Facility of every kind and description, real, personal and
mixed, wherever located and whether or not reflected on the books and
records of LOC, including, without limitation:
a. All buildings located at the Madisonville Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Madisonville Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Madisonville Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Madisonville Facility or employees of the Madisonville
Facility;
e. Any bank accounts and funds contained therein relating to the
Madisonville Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Madisonville Facility on the date hereof,
known or unknown, fixed or unfixed, whether or not
specifically referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.
Schedule A2
1. All of LOC's right, title and interest in real property located at 2821
Muth Court, Sheboygan, Wisconsin 53082 (the "Sheboygan F&A Facility"),
together with all assets and tangible personal property of LOC used in
connection with the operation of the Sheboygan F&A Facility of every
kind and description, real, personal and mixed, wherever located and
whether or not reflected on the books and records of LOC, including,
without limitation:
a. All buildings located at the Sheboygan F&A Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Sheboygan F&A Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Sheboygan F&A Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Sheboygan F&A Facility or employees of the Sheboygan F&A
Facility;
e. Any bank accounts and funds contained therein relating to the
Sheboygan F&A Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Sheboygan F&A Facility on the date hereof,
known or unknown, fixed or unfixed, whether or not
specifically referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.
2. All of LOC's right, title and interest in real property located at 2907
North 21st Street, Sheboygan, Wisconsin (the "Sheboygan Manufacturing
Facility"), together with all assets and tangible personal property of
LOC used in connection with the operation of the Sheboygan
Manufacturing Facility of every kind and description, real, personal
and mixed, wherever located and whether or not reflected on the books
and records of LOC, including, without limitation:
a. All buildings located at the Sheboygan Manufacturing Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Sheboygan Manufacturing Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Sheboygan Manufacturing Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Sheboygan Manufacturing Facility or employees of the
Sheboygan Manufacturing Facility;
e. Any bank accounts and funds contained therein relating to the
Sheboygan Manufacturing Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Sheboygan Manufacturing Facility on the date
hereof, known or unknown, fixed or unfixed, whether or not
specifically referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.
3. All of LOC's right, title and interest in real property located at 2924
South 31st Street, Sheboygan, Wisconsin (the "Substrates Facility"),
together with all assets and tangible personal property of LOC used in
connection with the operation of the Substrates Facility of every kind
and description, real, personal and mixed, wherever located and whether
or not reflected on the books and records of LOC, including, without
limitation:
a. All buildings located at the Substrates Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Substrates Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Substrates Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Substrates Facility or employees of the Substrates
Facility;
e. Any bank accounts and funds contained therein relating to the
Substrates Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Substrates Facility on the date hereof, known
or unknown, fixed or unfixed, whether or not specifically
referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky
in manufacturing, marketing and selling automotive or light
truck components.
4. All of LOC's right, title and interest in real property located at 3708
Enterprise Drive, Janesville, Wisconsin 53546 (the "Janesville
Facility"), together with all assets and tangible personal property of
LOC used in connection with the operation of the Janesville Facility of
every kind and description, real, personal and mixed, wherever located
and whether or not reflected on the books and records of LOC,
including, without limitation:
a. All buildings located at the Janesville Facility;
b. All equipment, computer hardware and software, machinery,
tools, electronics, appliances, spare parts, supplies,
vehicles and furniture located at or used in connection with
the Janesville Facility;
c. All work-in-progress and inventory of every sort and in any
medium related to the Janesville Facility;
d. All of LOC's right, title and interest in and claims or
obligations under any contracts or agreements relating to
assets or properties used in connection with the operation of
the Janesville Facility or employees of the Janesville
Facility;
e. Any bank accounts and funds contained therein relating to the
Janesville Facility; and
f. All other assets, properties and rights of every kind and
nature owned or held by LOC and used in or relating to the
operation of the Janesville Facility on the date hereof, known
or unknown, fixed or unfixed, whether or not specifically
referred to in this Agreement;
provided, however, that the Assets shall not include patented
and proprietary designs, materials, know-how, customer
relations, manufacturing techniques and systems, or any other
intellectual property that may be employed by Lear Kentucky in
manufacturing, marketing and selling automotive or light truck
components.