1
EXHIBIT 3.7
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
LDM CANADA
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 FORMATION, NAME, OFFICE AND PURPOSES....................... 1
1.1 Formation of Partnership .......................... 1
1.2 Name............................................... 1
1.3 Office............................................. 1
1.4 Term............................................... 1
1.5 Purpose............................................ 1
ARTICLE 2 CAPITAL AND OTHER CONTRIBUTIONS............................ 2
2.1 General Partner's Contribution..................... 2
2.2 Limited Partner's Contributions.................... 2
2.3 Capital Accounts................................... 2
2.4 Additional Contributions by Partners............... 2
2.5 Loans to Partnership............................... 4
2.6 Use of Capital Contributions....................... 4
ARTICLE 3 PARTICIPATION IN PARTNERSHIP PROPERTY...................... 5
3.1 Ownership by Partners of the Partnership........... 5
3.2 Limitation on Distributions........................ 5
ARTICLE 4 MANAGEMENT................................................. 5
4.1 General Management................................. 5
4.2 Management Expenses................................ 5
4.3 Powers of the General Partner...................... 6
4.4 Self Dealing....................................... 8
4.5 Activities of the General Partner.................. 8
4.6 Holding of Property................................ 8
4.7 Meetings and Voting................................ 8
ARTICLE 5 PARTNERSHIP DISTRIBUTIONS.................................. 9
5.1 Definitions........................................ 9
5.2 Distribution of Net Cash Flow From Operations...... 9
5.3 Distribution of Capital Proceeds................... 10
5.4 Liquidation of Partnership......................... 10
ARTICLE 6 TAX ALLOCATIONS............................................ 10
6.1 Allocation of Profits and Losses................... 10
6.2 Regulatory Allocations............................. 11
6.3 Property Contributions............................. 13
6.4 Curative Allocations............................... 13
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6.5 Definitions......................................... 14
6.6 Determinations...................................... 15
ARTICLE 7 LIABILITY................................................. 15
7.1 Liability of General Partner...................... 15
7.2 Indemnification of General Partner................ 15
7.3 Limited Liability of Limited Partner.............. 16
7.4 Status of Limited Partner......................... 16
ARTICLE 8 ACCOUNTING................................................ 16
8.1 List of Partners and Books and Records............ 16
8.2 Fiscal Year....................................... 16
8.3 Tax Returns....................................... 16
8.4 Reports........................................... 16
8.5 Tax Matters Partner and Tax Elections............. 17
ARTICLE 9 TERMINATION AND DISSOLUTION............................... 17
9.1 Admission or Incapacity of Limited Partner........ 17
9.2 Dissolution and Liquidation....................... 18
9.3 Distribution on Liquidation....................... 18
ARTICLE 10 ASSIGNMENT AND TRANSFERS.................................. 19
10.1 Transfer by General Partner...................... 19
10.2 Transfer by Limited Partner...................... 20
10.3 Involuntary Transfers; Claims by Creditors and
Others........................................... 22
10.4 Transfer Election................................ 22
ARTICLE 11 GENERAL PROVISIONS........................................ 22
11.1 Investment Representation........................ 22
11.2 Certificates..................................... 23
11.3 Power of Attorney................................ 23
11.4 Partners' Relationship Inter Se.................. 23
11.5 Amendments....................................... 23
11.6 Notices, Statements, Etc......................... 24
11.7 Entire Agreement................................. 24
11.8 Interpretation................................... 24
11.9 Counterparts..................................... 25
11.10 Assets in Control of General Partner............. 25
11.11 Binding Effect................................... 25
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AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
LDM CANADA
THIS AMENDED & RESTATED LIMITED PARTNERSHIP AGREEMENT is made
and entered into as of the 10th day of December, 1996, by and between LDM
HOLDINGS, L.L.C., A MICHIGAN LIMITED LIABILITY COMPANY, as General Partner
(hereinafter the "General Partner"), and LDM TECHNOLOGIES, F/K/A LDM INDUSTRIES
INC., a Michigan corporation (hereinafter the "Limited Partner").
ARTICLE 1
FORMATION, NAME, OFFICE AND PURPOSES
1.1 FORMATION OF PARTNERSHIP.
In accordance with the terms and conditions hereof, the Partnership shall
be constituted as a Limited Partnership under and subject to the Michigan
Revised Uniform Limited Partnership Act (MCLA 449.1101 et. seq.), hereinafter
"Revised Act", upon filing of a Certificate of Limited Partnership for record
with the chief officer of the Michigan Department of Consumer and Industry
Services, Corporation, Securities and Land Development Bureau.
1.2 NAME.
The name of the Partnership shall be "LDM Canada Limited Partnership".
1.3 OFFICE.
The principal office and place of business of the Partnership shall be
located at 2500 Executive Hills Drive, Auburn Hills, Michigan 48326, or
such other place as the General Partner shall from time to time designate.
1.4 TERM.
The term of the Partnership shall commence with the execution and filing
of the Certificate of Limited Partnership and shall continue until December 31,
2036 or until prior dissolution as provided herein.
1.5 PURPOSE.
The Partnership may engage in any activity and carry on any business which
a Limited Partnership may carry on under the Revised Act, including, but not
limited to, investing capital,
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either directly or indirectly, to purchase, acquire, own, hold, develop,
improve, lease, finance, refinance, manage, operate, sell, assign, exchange or
otherwise dispose of certain real and personal property.
ARTICLE 2
CAPITAL AND OTHER CONTRIBUTIONS
2.1 GENERAL PARTNER'S CONTRIBUTION.
The General Partner shall contribute to the capital of the Partnership the
sum of One Hundred Dollars ($300) in exchange for an interest in the Partnership
("Partnership Interest") equal to three percent 3%).
2.2 LIMITED PARTNER'S CONTRIBUTIONS.
The Limited Partner shall contribute to the capital of the Partnership the
sum of Nine Thousand Nine Hundred Dollars ($9,700) in exchange for a
Partnership Interest equal to ninety-seven percent (97%).
2.3 CAPITAL ACCOUNTS.
Capital Accounts shall be established for each Partner to which
contributions and profits shall be credited and from which distributions and
losses shall be deducted. The Partners' Capital Accounts shall at all times
be determined and maintained in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv), as amended, or successor law and regulations.
2.4 ADDITIONAL CONTRIBUTIONS BY PARTNERS.
Under no circumstances shall any Partner be required to advance or
contribute any additional funds to the Partnership. Any and all additional
advances or contributions to the Partnership shall be strictly voluntary. In
the event the General Partner determines that additional capital would be
beneficial for Partnership operations, then the following provisions shall
apply:
(a) The General Partner shall issue a written notice of capital
request ("Notice of Capital Request") to each Partner to
contribute additional funds to the Partnership. The Notice of
Capital Request shall include the following information:
(i) The total amount of capital requested from all of the
Partners ("Total Capital Request");
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(ii) Each Partner's share of the Total Capital Request, which
shall be determined by multiplying the Total Capital Request
by the Partnership Interest of each Partner ("Partner
Capital Contribution"); and
(iii) The date on or before which the Partner Capital
Contribution shall be due, which date shall not be less than
thirty (30) days from the date of the Notice of Capital
Request (the "Payment Date").
(b) Should any Partner decline, neglect, fail or refuse to timely
contribute to the Partnership any portion of his, her or its Partner Capital
Contribution on or before the Payment Date ("Delinquent Partner"), the General
Partner may thereafter without further notice or opportunity to cure given to
the Delinquent Partner, notify the other Partners ("Partner Notice") and the
other Partners who have paid their Partner Capital Contribution in full
("Non-Delinquent Partners") shall have the option to contribute the Delinquent
Partner's Partner Capital Contribution on a pro-rata basis (in accordance with
the then respective Partnership Interest of each other Non-Delinquent Partner as
compared to the total Partnership Interest of all Non-Delinquent Partners). In
the event that any Non-Delinquent Partner neglects, fails or refuses to
contribute his or her pro-rata share of the Delinquent Partner's Partner Capital
Contribution within thirty (30) days of his or her receipt of the Partner
Notice, then all other Non-Delinquent Partners shall have the right to
contribute the remaining deficiency in the Delinquent Partner's Capital
Contribution on a pro-rata basis (as to all such other Non-Delinquent Partners
and in the manner hereinabove provided), which procedure shall be repeated until
the Delinquent Partner's Capital Contribution is satisfied or all Non-Delinquent
Partners fail to contribute any additional capital. If the Non-Delinquent
Partners fail to contribute sufficient capital to satisfy the Delinquent
Partner's Partner Capital Contribution, the General Partner may without any
further notice or opportunity to cure given to any of the Partners fund the
Delinquent Partner's Partner Capital Contribution from persons or entities
outside of the Partnership; provided, however, that in any instance where
outside persons or entities are brought into the Partnership in such manner,
such persons or entities shall be deemed Limited Partners and must meet all of
the requirements set forth for the transfer of a Limited Partner's Partnership
Interest contained in Sections 10.2.2 and 10.2.3.
(c) If any Delinquent Partner's Partner Capital Contribution is
not funded or is funded (whether in whole or part) in accordance with Section
2.4(b), then the Partnership Interests in the Partnership shall be reallocated
and adjusted among all Partners and any persons or entities admitted to the
Partnership to fund any Delinquent Partners' Capital Contribution ("Additional
Partners") in accordance with the following formula: The Partnership Interest of
each Partner or Additional Partner shall be equal to a fraction converted to a
percentage, the numerator of which shall be the total amount of capital
contributed to the Partnership (original and all previous and current Partner
Capital Contributions) actually contributed by the Partner or Additional Partner
(or the predecessor
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in interest of such Partner or Additional Partner) and the denominator of
which shall be the total amount of capital contributed by all Partners to
the Partnership (original and all previous and current Partner Capital
Contributions) actually contributed by all Partners and Additional
Partners. In the event any Partner fails to make any Partner Capital
Contribution requested under this Section 2.4 and the Partnership is
indebted to such Partner for any loan made pursuant to Section 2.5, then
the indebtedness due for such loan, including all accrued interest, shall
be applied pro tanto in satisfaction of his Partner Capital Contribution;
and any balance of the Partner Capital Contribution remaining unsatisfied
shall be used as a basis for adjusting the Partnership Interest of such
Partner in accordance with this Section.
2.5 LOANS TO PARTNERSHIP.
In the event the Partnership requires additional cash in order to satisfy
the Partnership's operating expenses, the General Partner and/or Limited
Partners, upon the request of the General Partner, shall have the right (but not
the obligation) to make loans to the Partnership reasonably necessary for the
Partnership activities. The terms and conditions of such loans shall be
mutually agreeable to the General Partner and each Partner making a loan, and
such loans may be secured or unsecured in the discretion of the General Partner.
No distributions of any kind shall be made to the Partners until all then
outstanding loans, together with accrued interest, are paid in full, unless the
Partners making such loans agree otherwise.
2.6 USE OF CAPITAL CONTRIBUTIONS.
The aggregate of all the contributions to the capital of the Partnership by
the Partners shall be available to the Partnership to carry out the purposes of
the Partnership and shall be used and applied as follows:
(a) To reimburse the General Partner for any amounts advanced by
it or its affiliates in connection with the acquisition or
financing of any property owned by the Partnership and to pay and
satisfy all of the costs related to the acquisition and financing
of any property owned by the Partnership incurred in behalf of
the Partnership;
(b) To reimburse the General Partner for the expenses and costs
incurred by it in connection with the organization of the
Partnership, the admission of the Partners and the implementation
of this Limited Partnership Agreement; and
(c) The balance of said funds, if any, to cover any expenses
necessary to carry out the purposes set forth in Section 1.5.
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ARTICLE 3
PARTICIPATION IN PARTNERSHIP PROPERTY
3.1 OWNERSHIP BY PARTNERS OF THE PARTNERSHIP.
Each Partner shall have and own an undivided interest in the Partnership
equal to the Partner's respective Partnership Interest as initially set forth in
Section 2.1 or Section 2.2, and as may be subsequently modified pursuant to this
Limited Partnership Agreement; provided, however, that no Partner shall have a
specific interest in any Partnership property nor any right of partition with
respect to any property or assets of the Partnership.
3.2 LIMITATION ON DISTRIBUTIONS.
No Partner shall have the right to demand and receive any distribution from
the Partnership in any form other than cash.
ARTICLE 4
MANAGEMENT
4.1 GENERAL MANAGEMENT.
The management and control of the affairs of the Partnership and the
maintenance of the property of the Partnership shall rest exclusively with the
General Partner; and in connection with the management of the affairs of the
Partnership, the General Partner shall have the right and absolute discretion to
use the capital contributions of the Limited Partner for Partnership purposes.
The Limited Partner shall take no part in the conduct or control of the
operation, management or performance of the Partnership and its business and
shall have no right or authority to act for or bind the Partnership.
4.2 MANAGEMENT EXPENSES.
The General Partner or any corporation, partnership, limited liability
company, firm or business entity controlled or owned by (51 percent or more) the
General Partner (hereinafter referred to as "Affiliate"), shall be reimbursed
for all reasonable expenses incurred by it or by its Affiliate to the extent
that such expenses are incurred directly on behalf of the Partnership and shall
be reimbursed for all reasonable expenses, if any, incurred prior to the
commencement of business of the Partnership, and in the preparation and/or
execution of documents in connection with the formation of the Partnership. The
Partnership shall also pay to the General Partner or Affiliate all reasonable
fees, costs and expenses incurred in connection with the management, operation
and conduct of the partnership business, including but not limited to management
services, secretarial services, accounting services, insurance costs, taxes,
filing fees, communication expenses, supplies and similar costs and expenses.
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4.3 POWERS OF THE GENERAL PARTNER.
The General Partner shall devote such time as may be necessary to supervise
and conduct the affairs of the Partnership. The General Partner is hereby
authorized and empowered to carry out and implement any and all of the purposes
of the Partnership; and, in that connection, the General Partner, except as
otherwise expressly provided herein, has all the rights and powers of and shall
be subject to all restrictions and liabilities of a general partner under the
Revised Act. The powers of the General Partner shall include, but shall not be
limited to the following:
(a) To purchase or otherwise acquire and to hold, sell, transfer,
exchange, or otherwise dispose of or turn to account or realize upon
securities, commodities and commodity contracts of any and all types and
descriptions including, but not limited to, shares of capital stock,
treasury stock bonds, notes, debentures, trust receipts, mortgages,
evidences of indebtedness, certificate of deposits, choses in action,
certificate of interest, or participation in any profit sharing agreements,
limited partnership interests, collateral trust certificates, voting trust
certificates, fractional undivided interests in oil, gas or other mineral
rights, put and call options and any and all combinations thereof,
certificates, receipts, warrants and other instruments representing rights
to receive, purchase, sell or subscribe for any of the foregoing or
representing any other rights or interests therein or in other property or
assets, and any and all other interests, certificates, instruments and
documents whether now known or hereafter devised which are or may hereafter
be commonly known or referred to as securities (all such items being
hereinafter collectively referred to as "Securities").
(b) To sell Securities short and to cover such sales.
(c) Distribute to the Partners all income, profits and losses,
cash distributions or other distributions in accordance with this
Agreement.
(d) Acquire, construct, manage, sell, assign, convey, lease,
mortgage, or otherwise dispose of the Partnership property (either real or
personal) upon terms and conditions acceptable to the General Partner.
(e) Make reasonably necessary capital expenditures and improvements
with respect to the Partnership property and take all actions reasonably
necessary to maintain, operate, and manage such property.
(f) Borrow money, sell, assign, pledge, grant security interests
in or otherwise encumber or dispose of all or any part of the Partnership
property or any and all collateral securing payment thereof.
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(g) Perform or cause to be performed all of the Partnership's
obligations under any agreement to which the Partnership is a party or with
respect to any indebtedness of the Partnership whether secured or
unsecured.
(h) Establish, maintain, deposit into, sign checks and otherwise
draw upon Partnership bank accounts, certificates of deposit, money market
accounts or similar accounts or investment vehicles and execute, accept and
deliver any instrument or agreement in connection therewith; including the
specific right to invest funds not needed in the operation of the business
as it deems appropriate in its reasonable discretion; provided, however,
all such funds commingled with the funds of any other person shall be
accounted for separately.
(i) Enter into, execute and deliver all agreements and instruments
to which the Partnership may be a party, with such agreements and
instruments being signed in the name of the Partnership by the General
Partner. This power given to the General Partner includes the ability to
enter into and perform contracts, agreements, undertakings and transactions
with the General Partner, its agents, representatives, employees or any
persons with which the General Partner is affiliated or with which it has a
substantial direct or indirect financial interest.
(j) Employ, engage, terminate and deal with managing agents,
brokers, accountants or lawyers or persons in such other capacities as the
General Partner may deem necessary or desirable; provided the compensation
for such services is reasonable and fair to the Partnership. The fact that
a General Partner or a Limited Partner is employed by or affiliated with or
has a financial interest in such person shall not prohibit the General
Partner from employing and otherwise dealing with such person.
(k) Admit or replace Partners (either General or Limited) as
permitted by this Limited Partnership Agreement and the Revised Act.
(l) Make elections under and to modify, construe and apply and
provisions of the Limited Partnership Agreement to conform with applicable
provisions of the Internal Revenue Code of 1986, as amended ("Code") the
laws, rules and Treasury Regulations thereunder and any corresponding
provisions of any succeeding law as the General Partner shall deem to be in
the best interests of the Partnership.
(m) Institute and defend or arbitrate lawsuits as is necessary to
protect the Partnership business and properties.
(n) Take such other actions and incur such other expenses on behalf
of the Partnership as may be necessary, prudent, or advisable in conducting
the Partnership business.
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(o) To enter into, make, and perform all things necessary,
advisable, incidental or convenient to the carrying out of any of the
foregoing.
4.4 SELF DEALING.
Any Partner and any affiliate of any Partner may deal with the Partnership,
directly or indirectly, as a vendor, purchaser, employee, agent or otherwise,
provided the terms of dealings are fair with respect to the Partnership. No
contract or other act of the Partnership shall be violated or affected in any
manner by the fact that a Partner or affiliate is directly or indirectly
interested in such contract or other act apart from his interest as a Partner,
nor shall any Partner or any affiliate of a Partner be accountable to the
Partnership or the other Partners in respect of any profits directly or
indirectly realized by him by reason of such contract or other act, and such
interested Partner shall be eligible to vote or take any other action as a
Partner in respect of such contract or other act as he would be entitled were he
or his affiliate not interested therein. All such contracts shall be made
available to any Partner upon written request for inspection and copying at the
expense of such Partner.
4.5 ACTIVITIES OF THE GENERAL PARTNER.
Nothing herein shall require the General Partner to devote its or its
Affiliates full time to the conduct of the affairs of the Partnership. The
General Partner shall use reasonable efforts in carrying out and implementing
the purposes of the Partnership and shall devote to the conduct of the affairs
of the Partnership such time and activity as shall be reasonably necessary
therefor. It is understood that the General Partner and its Affiliates may be
presently engaged in other businesses, investments and real estate ventures, in
which ventures the Limited Partner shall have no right to participate and may
continue such activity. These activities shall not be prohibited or restricted
because they might be competitive with the business of the Partnership.
4.6 HOLDING OF PROPERTY.
Property owned by the Partnership shall be held in the name of the
Partnership or in a nominee name.
4.7 MEETINGS AND VOTING.
The General Partner may call a meeting of the Partners for any Partnership
purpose, at any reasonable time, in the county in which the registered office is
located or such other place designated by the General Partner, upon at least
fifteen (15) days' notice to the other Partners. Such meetings shall be held not
less than fifteen (15) days nor more than thirty (30) days after receipt of said
request and shall be for the purposes set forth in the notice. The Limited
Partner shall have no right to vote or participate in the affairs of the
Partnership, except as may be expressly required by this Limited Partnership
Agreement or the Revised Act. For purposes of any voting or consent by the
Limited Partner which may be expressly required under this Limited
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Partnership Agreement or the Revised Act, the Limited Partner shall be entitled
to cast one vote and, except as otherwise required by the Revised Act, the
consent of the Limited Partner shall be requisite to approve any matter which
must be approved by the Limited Partner under this Limited Partnership
Agreement or the Revised Act. Partnership meetings called pursuant to this
paragraph may be held by telephone conference or other form of
telecommunication. Votes may be cast in writing, by telegram, telecopy, fax,
or other form of telecommunication or verbally in connection with telephone
conferences provided such votes are transcribed or recorded by a stenographer,
recorder or other independent third party and the evidence of such votes are
maintained as part of the Partnership books and records.
ARTICLE 5
PARTNERSHIP DISTRIBUTIONS
5.1 DEFINITIONS.
For purposes of this Limited Partnership Agreement, the following
definitions shall apply:
(a) "Net Cash Flow From Operations" shall mean the cash proceeds
from Partnership operations (exclusive of any "Capital Proceeds" as
hereinafter defined) less the portion thereof used to pay or establish
reserves for expenses (exclusive of depreciation, amortization and other
non-cash expenses) and liabilities (including, without limitation, loan
repayments to Partners, capital improvements, replacements and
contingencies), all as determined solely by the General Partner.
(b) "Capital Proceeds" shall mean the net cash proceeds from all
sales, dispositions and refinancing of Partnership property, less any
portion thereof used to pay or establish reserves for the costs associated
with any such sale, disposition or refinancing, for debt repayment
(including, without limitation, loan repayments to Partners), and for any
other obligations and contingencies, all as determined solely by the
General Partner.
5.2 DISTRIBUTION OF NET CASH FLOW FROM OPERATIONS.
The Net Cash Flow From Operations shall be distributed, in such amounts and
at such times as shall be determined solely by the General Partner, but all such
distributions shall be made in the following order of priority:
(a) First, to the repayment of loans made by Partners to the
Partnership; and
(b) Second, in accordance with the respective Partnership
Interests of the Partners.
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5.3 DISTRIBUTION OF CAPITAL PROCEEDS.
(a) The Capital Proceeds of the Partnership shall be distributed, in
such amounts and at such times as shall be determined solely by the General
Partner, but all such distributions shall be made in the following order of
priority:
(i) First, to the repayment of loans made by Partners to the
Partnership; and
(ii) Second, in accordance with the respective Partnership
Interests of the Partners.
(b) In the event that the Partnership shall distribute any asset
in-kind, to one (1) or more of its Partners, such in-kind distribution
shall be deemed a distribution of Capital Proceeds in an amount equal to
the fair market value of the asset on the date of distribution, as
determined solely by the General Partner.
5.4 LIQUIDATION OF PARTNERSHIP.
Notwithstanding anything contained in Sections 5.2 or 5.3 to the contrary,
in the event that the Partnership is liquidated under Section 9.2 hereof or is
"liquidated" within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(g), then the Net Cash Flow From Operations and Capital
Proceeds shall thereafter be distributed to the Partners who have positive
Capital Accounts in compliance with Treasury Regulation Section
1.704-1(b)(2)(ii)(b)(2), but only after such Capital Accounts have been adjusted
for all contributions and distributions, and all allocations under Article 6,
for all periods.
ARTICLE 6
TAX ALLOCATIONS
6.1 ALLOCATION OF PROFITS AND LOSSES.
After giving effect to the allocations set forth in Sections 6.2, 6.3 and
6.4 hereof, any income, gain, loss, deduction or credit of the Partnership
("Profits and Losses") for any fiscal year of the Partnership shall be allocated
among the Partners first, so that their Capital Accounts, increased by their
respective shares of Partnership Minimum Gain and their respective shares of
Partner Minimum Gain are, as nearly as possible, in the same ratios as their
Partnership Interests, and then, pro rata, in accordance with their Partnership
Interests; provided, however, that no Limited Partner shall be allocated any
Loss for any fiscal year to the extent that such Loss would create or increase a
deficit in such Limited Partner's Capital Account (as referenced under Treas.
Reg. 1.704-1(b)(2)(ii)(d)). All Losses in excess of the limitations set forth in
this Section shall be allocated to the General Partner.
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6.2 REGULATORY ALLOCATIONS.
The following regulatory allocations ("Regulatory Allocations") shall be
made in the following order:
(a) Partnership Minimum Gain Chargeback. Except as otherwise
provided in Treasury Regulation Section 1.704-2(f), if there
is a net decrease in Partnership Minimum Gain during any
fiscal year, each Partner shall be specifically allocated
items of Partnership income and gain for such fiscal year
(and, if necessary, subsequent fiscal years) in an amount
equal to such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with
Treasury Regulation Section 1.704-2(g). 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 Treasury Regulation Sections
1.704-2(f)(6) and 1.704-20(j)(2). This Section 6.2(a) is
intended to comply with the minimum gain chargeback
requirements of Treasury Regulation Section 1.704-2(f) and
shall be interpreted consistently therewith.
(b) Partner Minimum Gain Chargeback. Except as otherwise provided
in Treasury Regulation Section 1.704-2(i)(4), if there is a
net decrease in Partner Minimum Gain attributable to a Partner
Non-Recourse Debt during any fiscal year, each Partner who has
a share of the Partner Minimum Gain attributable to such
Partner Non-Recourse Debt, determined in accordance with
Treasury Regulation Section 1.704-2(i)(5), shall be
specifically allocated items of Partnership income and gain
for such fiscal year (and, if necessary, subsequent fiscal
years) in an amount equal to such Partner's share of the net
decease in Partner Minimum Gain attributable to such Partner
Non-Recourse Debt, determined in accordance with Regulation
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 Treasury Regulation Sections 1.704-2(i)(4) and
1.704-2(j)(2). This Section 6.2(b) is intended to comply with
the minimum gain chargeback requirement of Treasury Regulation
Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.
(c) Qualified Income Offset. In the event that any Partner
unexpectedly receives any adjustments, allocations or
distributions described in Treasury Regulation Sections
1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership
income and gain shall be specifically allocated to each such
Partner in amount and manner sufficient to eliminate, to the
extent required by the
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Treasury Regulations, any deficit in the Capital Account of
such Partner as quickly as possible, provided that an
allocation pursuant to this Section 6.2(c) shall be made only
if and to the extent that such Partner would have a deficit in
such Partner's Capital Account after all other allocations
provided for in this Section 6.2 have been tentatively made as
if this Section 6.2(c) were not in this Agreement.
(d) Gross Income Allocation. In the event that any Partner has a
deficit in such Partner's Capital Account at the end of any
fiscal year that is in excess of the sum of (i) the amount
such Partner may be obligated to restore pursuant to any
provision of this Agreement, and (ii) the amount such Partner
is deemed to be obligated to restore pursuant to the
penultimate sentences of Treasury Regulation Sections
1.704-2(g)(1) and 1.704-2(i)(5), then such Partner shall be
specifically 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 6.2(d) shall be
made only if and to the extent that such Partner would have a
deficit in such Partner's Capital Account in excess of said
sum after all other allocations provided for in this Section
6.2 have been made as if Section 6.2(c) and this Section
6.2(d) were not in this Agreement.
(e) Partnership Non-Recourse Deductions. Any Partnership
Non-Recourse Deductions under Treasury Regulation Section
1.704-2(b)(1) for any fiscal year shall be allocated among the
Partners in accordance with their respective Partnership
Interests to the extent and in a manner as may be required
under Treasury Regulation Section 1.704-2(e) and otherwise in
any manner determined by the Partners to satisfy the Treasury
Regulations.
(f) Partner Non-Recourse Deductions. Partner Non-Recourse
Deductions under Treasury Regulation Section 1.704-2(i)(2) for
any fiscal year shall be allocated to the Partners who bear
the economic risk of loss with respect to the Partner
Non-Recourse Debt to which Partner Non-Recourse Deductions are
attributable in accordance with and to the extent required by
Treasury Regulation Section 1.704-2(i)(1).
(g) Code Section 754 Adjustments. To the extent an adjustment
to the adjusted tax basis of any Partnership asset pursuant to
Code Sections 734(b) or 743(b) is required in accordance with
Treasury Regulation Section 1.704-1(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 specifically allocated to the
Partners in a manner consistent with the manner
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in which Capital Accounts are required to be adjusted pursuant
to said Treasury Regulation.
(h) Allocations Relating to Taxable Issuance of Partnership
Interests. Any income, gain, loss or deduction realized as a
direct or indirect result of the issuance of an interest by
the Partnership to a Partner ("Issuance Items") shall be
allocated among the Partners so that, to the extent possible,
the net amount of such Issuance Items, together with all other
allocations under this Agreement to each Partner shall be
equal to the net amount that would have been allocated to such
Partners if the Issuance Items had not be realized.
6.3 PROPERTY CONTRIBUTIONS.
In accordance with Code Section 704(c) and the Treasury Regulations
hereunder, income, gain, loss and deduction with respect to any property
contributed to the capital of the Partnership shall, solely for tax purposes, be
allocated among the Partners so as to take account of any variation between the
adjusted basis of such property to the Partnership for federal income tax
purposes and its initial value for Capital Account purposes ("Book Value"). In
the event the Book Value of any Partnership asset is later adjusted, subsequent
allocations of income, gain, loss and deduction with respect to such asset shall
take account of any variation between the adjusted basis of such asset for
federal income tax purposes and its Book Value in the same manner as under Code
Section 704(c)and the Treasury Regulations thereunder.
6.4 CURATIVE ALLOCATIONS.
(a) The Regulatory Allocations are necessary to comply with the
requirements of the Treasury Regulations. To the maximum
extent possible, the Regulatory Allocations shall be offset,
either with other Regulatory Allocations or with special
allocations of other items of Partnership income, gain, loss
or deduction pursuant to this Section 6.4. Therefore,
notwithstanding any other provision of this Article 6, the
Partners shall make such offsetting special allocations of
Partnership income, gain, loss or deduction in whatever manner
determined appropriate so that, after such offsetting
allocations are made, each Partner's Capital Account balance
is, to the maximum extent possible, equal to the Capital
Account balance such Partner would have had if the Regulatory
Allocations were not part of this Agreement and all items of
Partnership Profit and Loss were allocated in accordance with
each Partner's respective Partnership Interest.
(b) The manner in which the Partners intend and desire
distributions from the Partnership to be divided among them is
set forth in Sections 5.2 and 5.3 hereof. The Partners do not
intend either the allocations under this Article 6 or the
application of Section 5.4 due to the liquidation of the
Partnership,
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16
to directly or indirectly distort the manner in which they
share Partnership distributions under Sections 5.2 and 5.3
hereof. Therefore, it is the express intent of this Limited
Partnership Agreement and the Partners that allocations of
Profits and Losses among the Partners and the Regulatory
Allocations shall, to the maximum extent possible, be made in
such a manner so as to prevent any distortion in the manner in
which Partnership distributions are divided among the Partners
as set forth under Sections 5.2 and 5.3 hereof, and so that
upon the application of Section 5.4 due to the liquidation of
the Partnership, the Capital Accounts of each Partner shall
equal the distributions otherwise payable to such Partners
under Sections 5.2 and 5.3.
(c) Notwithstanding anything contained in this Limited Partnership
Agreement to the contrary, the Partners agree to any special,
corrective or other allocations of items of Profits and Losses
as the General Partner may deem necessary or appropriate, from
time to time, in order to carry out the purposes and intents
of the Partners as described herein and avoid any distortion
in the manner in which the Partners receive distributions
under Sections 5.2 and 5.3 hereof, whether due to the
application of Section 5.4 resulting from the liquidation of
the Partnership or any other factors whatsoever. The
Partners agree that the special and/or corrective allocations
referred to under this Section 6.4 may include, without
limitation, a special allocation of the gain and income
associated with or arising out of the disposition of
Partnership assets and/or the liquidation of the Partnership,
to one or more Partners as necessary or appropriate, in order
to carry out the purposes and intents of this Section 6.4.
6.5 DEFINITIONS.
For purposes of this Limited Partnership Agreement, the following
definitions shall apply:
(a) "Partnership Non-Recourse Deductions" has the same meaning as
provided in Treasury Regulation Section 1.704-2(b)(1).
(b) "Partner Non-Recourse Deductions" has the same meaning as
provided in Treasury Regulation Sections 1.704-2(i)(1) and
(2).
(c) "Partner Non-Recourse Debt" has the same meaning as provided in
Treasury Regulation Section 1.704-2(b)(4).
(d) "Partner Minimum Gain" means an amount, with respect to each
Partner Non-Recourse Debt, equal to the Partnership Minimum
Gain that would result if such Partner Non-Recourse Debt were
treated as a Non-Recourse
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17
Liability determined in accordance with Treasury Regulation
Section 1.704-2(i)(3).
(e) "Partnership Minimum Gain" has the same meaning as provided in
Treasury Regulation Sections 1.704-2(b(2) and 1.704-2(d).
6.6 DETERMINATIONS.
Any and all actions and decisions regarding the application and/or
interpretation of any term or provision of this Article 6, shall be determined
by the General Partner, which determination shall be final, adhered to by the
Partners, and not subject to further review or challenge.
ARTICLE 7
LIABILITY
7.1 LIABILITY OF GENERAL PARTNER.
Any liability of the Partnership shall first be satisfied out of the assets
of the Partnership, including the proceeds of any liability insurance which the
Partnership may recover. If such assets shall not be sufficient to satisfy such
liability, such liability shall be borne by the General Partner, except for a
liability with respect to which the creditor has agreed that no Partner has
personal liability.
7.2 INDEMNIFICATION OF GENERAL PARTNER.
(a) The General Partner shall be entitled to indemnity (including
expenses of litigation and appeal and attorneys' fees) from the
Partnership for any act performed by it or its Affiliates within the scope
of the authority conferred upon it or such Affiliate by this Limited
Partnership Agreement, except for those acts caused by it or its
Affiliates' own fraud, misrepresentation, bad faith, or willful breach of
a fiduciary duty; provided, however, that any indemnity under this Section
be provided out of and to the extent of Partnership assets only, and the
Limited Partner shall have any personal liability on account thereof.
(b) The General Partner shall not be liable, responsible or
accountable, in damages or otherwise, to any of the Partners or the
Partnership for any acts performed by it within the scope of the authority
conferred upon it by this Limited Partnership Agreement, except for those
acts caused by it or its Affiliates' own fraud, misrepresentation, bad
faith or willful breach of fiduciary duty.
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18
7.3 LIMITED LIABILITY OF LIMITED PARTNER.
The liability of the Limited Partner in all respects shall be limited to
the capital contributions paid by such Limited Partner under the provisions of
Sections 2.2 and 2.3 hereof.
7.4 STATUS OF LIMITED PARTNER.
The Limited Partner shall not participate in the control or management of
the business of the Partnership. The interest of the Limited Partner in the
Partnership shall not in any way prohibit or restrict same from engaging in or
owning an interest in any other business venture of any nature, including any
venture which might be competitive with the business of the Partnership.
ARTICLE 8
ACCOUNTING
8.1 LIST OF PARTNERS AND BOOKS AND RECORDS.
The General Partner shall keep a true, exact and complete list of the names
and addresses of the Partners and books of account recording the transactions of
the Partnership. The books of account shall be kept on the cash or accrual
method, as determined by the General Partner. Such list of Partners and books
of account, together with all tax returns, correspondence, papers and other
documents, shall be kept at the principal office of the Partnership or such
other office as may be designated by the General Partner, and shall be at all
reasonable times, available to all or any of the Partners or their
representatives designated in writing for inspection and copying at the sole
cost and expense of such partner.
8.2 FISCAL YEAR.
The fiscal and the taxable year of the Partnership shall end on the last
Sunday in September.
8.3 TAX RETURNS.
The General Partner shall cause to be prepared and transmitted to all
Partners and the State of Michigan and Internal Revenue Service a Schedule K-1
or other required form for the reporting of income or loss for federal and state
tax purposes.
8.4 REPORTS.
The General Partner shall cause to be furnished to the Limited Partner
within 120 days after the end of each fiscal year, an annual report containing a
balance sheet, a profit and loss
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statement and a statement showing distribution to the Partners and an allocation
to the Partners of income, gains, losses, deductions and credits and a statement
of changes in capital account.
8.5 TAX MATTERS PARTNER AND TAX ELECTIONS.
(a) As used in this Limited Partnership Agreement, "Tax Matters
Partner" has the same meaning as the term "tax matters partner" as
set forth in Code Section 6231(a)(7). The General Partner, acting
through Richard J. Nash, in his capacity as Treasurer of the General
Partner, is hereby designated Tax Matters Partner for the Company.
(b) The Tax Matters Partner designated pursuant to subsection (a)
hereof shall have full power and authority to act as such for the
Partnership and the Partners, with all the rights and
responsibilities of that position described in Code Sections 6222
through 6233, except, however, to the extent Code Section
6224(c)(3)(B) provides certain rights and privileges to the non-tax
matters partners of a Company. The duty of the Tax Matters Partner
to keep each Partner informed of administrative and judicial
proceedings involving tax issues relating to the Partnership, its
property or business shall be limited to a duty to inform each
Partner of the beginning, completion and results of such proceedings.
(c) The Tax Matters Partner shall in no event be liable for loss
or damage to the Partnership or any Partner arising from the exercise
of any of his rights and/or the performance of any of his
responsibilities referred to in this Section. The Partnership
shall reimburse the Tax Matters Partner for all costs and expenses
incurred by him in this exercise of the rights and/or the performance
of the responsibilities referred to in this Section. The Partnership
shall indemnify and hold harmless the Tax Matters Partner from all
claims, liabilities, costs and expenses, including reasonable
attorneys' fees and court costs, incurred in the exercise of the
rights and/or the performance of the responsibilities referred to in
this Section.
(d) Each Partner shall reflect on his individual income tax
returns all items of income, gain, loss deduction or credit relating
to the Partnership, its property or business in a manner which is
consistent with the treatment of such items on the Partnership
returns.
ARTICLE 9
TERMINATION AND DISSOLUTION
9.1 ADMISSION OR INCAPACITY OF LIMITED PARTNER.
The Partnership shall not terminate or dissolve upon the admission,
withdrawal, death, bankruptcy, insolvency, assignment for the benefit of
creditors, receivership or legal incapacity
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20
of any Limited Partner (hereinafter "Incapacitated Limited Partner"). Subject to
the provisions of Article 9 hereof, the heirs, legal representative, trustee,
receiver, successor or assignee (hereinafter "Successor") of any Incapacitated
Limited Partner may become an assignee of such Limited Partner and have the
rights provided for in Section 705 of the Revised Act, but shall not have the
rights of a Limited Partner unless the General Partner has consented to same and
Sections 10.2.2 and 10.2.3 have been complied with. Such successor shall
execute and deliver, in a form satisfactory to the General Partner, an addendum
to this Limited Partnership Agreement agreeing to be bound by all the terms and
conditions hereof and to assume all the obligations of the Incapacitated Limited
Partner hereunder.
9.2 DISSOLUTION AND LIQUIDATION.
The Partnership shall be dissolved and liquidated upon the occurrence of
any of the following events:
(a) The arrival of the termination date specified in Section 1.4
hereof;
(b) The entry of a final judgment, order or decree of a court of
competent jurisdiction adjudicating the Partnership to be bankrupt, and the
expiration of the period, if any, allowed by applicable law in which to
appeal therefrom; or
(c) The General Partner ceases to be a General Partner as provided
in Section 402 of the Revised Act, or the withdrawal of the General Partner
unless the Limited Partner affirmatively elects to reconstitute the
Partnership by admitting a new General Partner as provided under Section
801(3) of the Revised Act. In the event of such reconstitution, the
General Partner's interest shall be automatically converted to a limited
partnership interest, which resultant limited partnership interest shall
have the same economic characteristics as existed prior to such conversion.
(d) The affirmative consent of the General Partner and the Limited
Partner holding a majority of Partnership Interests.
9.3 DISTRIBUTION ON LIQUIDATION.
(a) Upon the dissolution of the Partnership by the occurrence of
any event described in Section 9.2 hereof, the General Partner or such
other person, who shall be designated within 60 days of such event by the
General Partners (which General Partner or designated person shall, for
purposes hereof, be referred to as the "Liquidator"), shall wind up its
affairs and apply and distribute the proceeds of such liquidation in the
same manner as provided for the distribution of Capital Proceeds in Section
5.4 (with the profits and losses arising from the sale or other disposition
of the assets of the Partnership being allocated in the same manner as the
allocation of profits and losses in Article 6).
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(b) In the event of liquidation hereunder, each Partner shall
make, constitute and appoint the Liquidator, with full power of
substitution, the true and lawful attorney for such Partner and in
such Partner's name, place and stead and for such Partner's use and
benefit, to wind up the affairs of the Partnership, manage the
business and assets of the Partnership until such is completed; to
execute, acknowledge and deliver documents with or without warranty
for such purpose; and to do and perform all and every act and thing
whatsoever necessary to be done in connection with the business and
assets of the Partnership. To evidence the appointment of the
Liquidator as attorney-in-fact for the Partners hereunder, each
Partner shall, from time to time, execute and deliver such power of
attorney or other instrument as shall be reasonably requested by the
Liquidator. The foregoing grant of authority shall be irrevocable
and shall constitute a power coupled with an interest binding upon
the heirs, legal representatives, successors and assigns of each
Partner.
(c) A reasonable time shall be allowed for the orderly
liquidation of the assets of the Partnership and the discharge of
its liabilities so as to enable the Liquidator to minimize the normal
losses attendant upon such liquidation. The provisions of Article 6
hereof relating to the allocation of distributive shares of items of
gain, loss, deduction and credit of the Partnership shall be
applicable during the period of liquidation.
(d) The Liquidator shall furnish each Partner with a
statement, from such firm of certified public accountants as he or
it shall designate, showing the manner in which the proceeds of
liquidation of the Partnership have been distributed.
(e) The Partnership shall terminate when all property owned
by the Partnership shall have been liquidated and the net proceeds,
after satisfaction of liabilities to creditors, shall have been
distributed among the Partners pursuant to this Agreement.
ARTICLE 10
ASSIGNMENT AND TRANSFERS
10.1 TRANSFER BY GENERAL PARTNER.
The General Partner shall not sell, transfer or exchange ("Transfer")
its Partnership Interest in one or more transfers, or substitute one or
more General Partners in its place or admit one or more General Partners or
voluntarily withdraw or terminate its participation in the Partnership as
General Partner, unless the Transfer is approved by the Limited Partner. In
the event of any Transfer under this Section or the substitution of one or
more General Partners with said approval of the Limited Partner, the
General Partner shall comply with the following additional conditions: (i)
the Transfer will not cause the Partnership to be taxed as a corporation
rather than a partnership for federal income tax purposes (ii) the
Transfer when added to the total of all other Partnership Interests
transferred within a period of 12 consecutive months prior thereto will not
result in the
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termination of the Partnership under Section 708 of the Code, (iii) the Transfer
will not violate any federal or state securities laws or cause the loss of any
exemption from registration available to the Partnership, (iv) the Transferee
shall execute an addendum in a form satisfactory to the General Partner
containing the Transferee's agreement to be bound by all the terms and
conditions of this Limited Partnership Agreement and any existing amendments,
and (v) the Transferee shall pay such reasonable expenses as may be incurred by
the Partnership in connection with the admission of the Transferee as a Partner.
In the event of a Transfer not resulting in the withdrawal of the General
Partner or the admission of one or more additional General Partners, the
Partnership Interest transferred shall automatically be converted to a Limited
Partnership Interest, the Transferee shall have no right to participate in the
management of the Partnership and in the event of a Transfer of less than all of
the Partnership Interest, the Transferor shall remain as a General Partner.
10.2 TRANSFER BY LIMITED PARTNER.
The Limited Partner shall not sell, transfer or exchange, ("Transfer"), all
or any portion of the Limited Partner's Partnership Interest without the prior
written consent of the General Partner and compliance with the following terms
and conditions:
(a) The Limited Partner ("Selling Partner") shall, after receipt
of a bona fide offer to purchase or exchange, which the Limited Partner
intends to accept, have the right to Transfer all or a portion of such
Limited Partner's Partnership Interest, but only after first offering, in
writing, to sell such Partnership Interest to the General Partner. Such
written offer shall be upon all of the same terms and conditions as the
aforesaid bona fide offer to purchase; and the General Partner shall have
the option, ("First Option") for a period of thirty (30) days after receipt
of such written offer, to purchase such interest upon the same terms and
conditions as the bona fide offer. In the event that the General Partner
shall decline to exercise the First Option, then the Selling Partner shall
offer in writing to sell such Partnership Interest pro rata to all the
Partners (General and Limited), unless there are no Limited Partners other
than Selling Partner. The offer shall be upon all the same terms and
conditions as the bona fide offer to purchase; and the Partners shall have
a second option ("Second Option") for a period of fifteen (15) days after
the expiration of the First Option to purchase such Partnership Interest.
In the event one or more of the Partners decline to exercise the Second
Option, then the remaining Partners exercising the Second Option
("Purchasing Partners") shall have a third option ("Third Option") for a
period of five (5) business days after the expiration of the Second Option
to acquire the pro rata share of the declining Partners in equal
proportions or as the Purchasing Partners shall otherwise agree. In the
event the entire Partnership Interest of the Selling Partner subject to the
bona fide offer to purchase is not purchased by the exercise of the
foregoing options, the Selling Partner shall have the right to proceed with
the Transfer pursuant to the bona fide offer to purchase; provided the
Transfer is completed within ninety (90) days after the expiration of the
Third Option. Failure to complete the sale or Transfer within
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said ninety (90) day period shall require the Selling Partner to again comply
with the conditions of this subsection.
(b) In the event of a Transfer pursuant to the provisions of this
Section 10.2, the purchaser, transferee or exchanging party ("Transferee"),
shall execute, with the consent of the General Partner and in form satisfactory
to the General Partner, an addendum to this Limited Partnership Agreement
pursuant to which the Transferee agrees to be bound by all the terms and
conditions hereof and to assume all the obligations of the Transferor Limited
Partner.
(c) The Transferee has:
(i) Provided an opinion of counsel, in form and substance
satisfactory to counsel for the Partnership, that neither the
offering nor the Transfer of the partnership interest violates
any provisions of federal or state securities or comparable laws,
nor causes the loss of any exemption from federal or state
securities laws which may be available to the limited partnership
interests, nor violates the limited partnership laws of the state
governing this Limited Partnership, nor causes the Partnership to
be taxed as a corporation rather than a partnership under the
Code; and
(ii) Paid such reasonable expenses as may be incurred by the
Partnership in connection with such admission as a substituted
Limited Partner; and
(iii) Satisfied the Partnership that the Partnership interest sought to
be transferred when added to the total of all other Partnership
interests transferred within the period of twelve (12)
consecutive months prior thereto will not result in the
termination of the Partnership under Code Section 708; and
(iv) Executed a statement providing that he or she is acquiring the
Partnership Interest for his or her own account, for investment
and not with a view towards distribution and providing any other
representations and warranties reasonably requested by the
Partnership; and
(v) The Transferor and Transferee, and if requested by the General
Partner, all other Partners shall execute and deliver all such
certificates, documents and agreements which the General Partner
deems necessary or appropriate in connection with the transfer
and/or to effectuate and preserve the status and existence of the
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Partnership, the terms and provisions of this Limited
Partnership Agreement, and the rights and obligations of the
Partners, the Transferor and Transferee.
(d) Under no circumstances may any Limited Partner, transfer,
assign or convey part his Partnership Interest, or any right,
benefit or interest as a Limited Partner, to any party, without the
express prior written consent of the General Partner.
10.3 INVOLUNTARY TRANSFERS: CLAIMS BY CREDITORS AND OTHERS
The Partnership Interests of the Partners are not subject to any
voluntary or involuntary encumbrance, sale, transfer, assignment or other
disposition without strict compliance with all the provisions of this
Article 10. Any such actual or purported transfer, sale, assignment or
other disposition in violation of this Article 10 shall be null and void.
In the event that any Partnership Interest is subject to any actual or
purported transfer or encumbrance, whether by attachment, seizure, levy,
divorce, order of any bankruptcy or other court, any procedure for the
benefit of creditors or through any other procedure, action or method, in
violation of any term or provision of this Agreement, then in such event,
the affected Partnership interest shall automatically (i) be subject to the
First Option, Second Option and Third Option under Section 10.2 hereof for
a period of one (1) year following written notice to the Partnership and
the other Partners of such transfer or purported transfer or encumbrance,
and (ii) have no right to participate, consent or vote in the management or
affairs of the Partnership or otherwise receive any distribution or
payment whatsoever.
10.4 TRANSFER ELECTION.
In the case of the transfer of a Partner's interest in the Partnership
pursuant to any provisions hereof, the Partnership may file the election
specified by Code Section 754.
ARTICLE 11
GENERAL PROVISIONS
11.1 INVESTMENT REPRESENTATION.
The Limited Partner represents and warrants to the Partnership that it
is acquiring its interest in the Partnership for its own account for
investment and not with a view toward transfer, resale or distribution
thereof, and that its interest shall not be sold or disposed of in
violation of the Securities Act of 1933 (the "Act") as amended, (including
any regulations promulgated thereunder) or the Uniform Securities Act of
the State of Michigan ("Uniform Act") (including any regulations
promulgated thereunder), nor in the absence of either an effective
registration statement under said Act or Uniform Act or an opinion of
counsel satisfactory to the Partnership and to its counsel that
registration is not required under the Act and/or the Uniform Act, and that
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25
any such sale will not invalidate any exemption from registration which
may otherwise be available to the partnership interests. The Limited Partner
shall indemnify and hold the Partnership harmless for all costs and expenses,
including reasonable attorneys' fees, incurred by the Partnership as a result
of a breach hereof by such Limited Partner.
11.2 CERTIFICATES.
At the expense of the Partnership, the General Partner shall promptly
cause to be filed a Certificate of Limited Partnership and any necessary
amendments, restated certificates or other documents with the chief officer of
the Michigan Department of Consumer & Industry and shall cause to be prepared,
executed and filed for record all other legally required fictitious name or
other applications, registrations, publications, certificates, affidavits and
amendments required to be filed with any governmental authority.
11.3 POWER OF ATTORNEY.
The Limited Partner hereby makes, constitutes and appoints Joe Balous,
Secretary of the General Partner, with full power of substitution, true and
lawful attorney-in-fact for it and in its name, place and stead, and for its
use and benefit: (a) to sign, file and record this Limited Partnership
Agreement and Certificate of Limited Partnership as provided in Section 11.2
and any amendments, restated certificates and other documents or filings
required under the Revised Act or required by any other governmental
authority; (b) to enter into, sign and record any other agreements or documents
authorized by this Limited Partnership Agreement; and (c) to sign, execute,
certify, acknowledge, file and record any other instruments referred to in
Section 11.2 hereof or required of the Partnership or Partners by law.
11.4 PARTNERS' RELATIONSHIP INTER SE.
Nothing herein contained shall be interpreted or construed to
constitute any Partner the agent of any other Partner, except as expressly
provided herein, or in any manner to limit the Partner in carrying on his own
businesses or activities.
11.5 AMENDMENTS.
This Limited Partnership Agreement and any part hereof may be amended
at any time or from time to time by the vote of the General Partner and the
Limited Partner.
Notwithstanding the foregoing, Amendments to this Limited Partnership
Agreement or the Certificate of Limited Partnership for purposes of properly
enforcing the provisions of this Agreement existing as of the date of execution
by the General Partner and the Limited Partner (such as reallocation of
Partnership interests under Section 2.3.3) and admitting additional Limited
Partners in compliance with this Limited Partnership Agreement shall not
require the vote of the Limited Partner. An Amendment to this Limited
Partnership Agreement removing, adding or
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substituting Limited Partners shall only require the signature of the
General Partner, the person being added or substituted (and if substituted,
also by the transferring Limited Partner). An Amendment removing, adding
or substituting a General Partner shall be signed by the current General
Partner, additional or successor General Partner and the General Partner on
behalf of the Limited Partner pursuant to the power of attorney in Section
11.3, provided the applicable voting requirements for the Limited Partner
are satisfied. All other amendments and any certificate, amendment, notice
or other document required to be filed with any governmental agency having
jurisdiction thereof in connection with any valid Amendment under this
Limited Partnership Agreement shall be signed by the General Partner and,
at the option of the General Partner, either the Limited Partner or the
General Partner on behalf of the Limited Partner pursuant to the power of
attorney in Section 11.3.
11.6 NOTICES, STATEMENTS, ETC.
All notices, statements or other documents which are required or
contemplated by this Limited Partnership Agreement shall be in writing and
shall be either personally served upon the person entitled thereto or
mailed postage prepaid, certified mail, return receipt requested, addressed
to such person at his last known mailing address, as set forth on the
latest Certificate of Limited Partnership or amendment thereof filed with
respect to the Partnership, or on any subsequent written instructions
delivered by him to the Partnership. Any mailed notice shall be deemed
served two days after the date mailed pursuant to this Section.
11.7 ENTIRE AGREEMENT.
This Limited Partnership Agreement represents the entire understanding
of the parties with respect to the subject matter hereof. Except as
provided in Section 11.5 hereof, no waiver, modification or amendment
("Amendment") of this Limited Partnership Agreement shall be binding unless
in writing and signed by each of the Partners affected by the Amendment.
11.8 INTERPRETATION.
(a) This Limited Partnership Agreement shall be interpreted,
construed and enforced in accordance with the laws of the State of
Michigan and in the event of a conflict between this Limited
Partnership Agreement and the Revised Act, the Revised Act shall
control.
(b) As used in this Limited Partnership Agreement, any
gender shall include any other gender and the plural shall include the
singular and the singular shall include the plural wherever
applicable.
(c) The titles of the Articles and Sections herein have been
inserted as a matter of convenience for reference only and shall not
control or affect the meaning of construction of any of the terms or
provisions hereof.
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11.9 COUNTERPARTS.
The parties hereto may execute this Limited Partnership Agreement
in any number of counterparts, each of which, when executed and delivered
by all the parties named as signatories hereto, shall have the force and
effect of an original; but all such counterparts shall constitute one and
the same instrument.
11.10 ASSETS IN CONTROL OF GENERAL PARTNER.
The General Partner has a fiduciary responsibility for the
safekeeping and use of all funds and assets of the Partnership, whether or
not in its immediate possession or control, and it shall not employ or
permit another to employ such funds or assets in any manner except for the
exclusive benefit of the Partnership.
11.11 BINDING EFFECT.
This Limited Partnership Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors and assignees.
IN WITNESS WHEREOF, this Limited Partnership Agreement has been
executed by the General Partner and by the Limited Partner, effective on the
day and year first above written.
IN THE PRESENCE OF: GENERAL PARTNER:
LDM HOLDINGS, L.L.C.,
A MICHIGAN LIMITED LIABILITY COMPANY
BY: LDM TECHNOLOGIES, INC.,
A MICHIGAN CORPORATION, MEMBER
Michael B. Lewis Richard J. Nash
- --------------------------- By: -----------------------------------
Michael B. Lewis Richard J. Nash
Its: President
LIMITED PARTNER:
LDM TECHNOLOGIES, INC.
a Michigan corporation
Michael B. Lewis By: Richard J. Nash
- --------------------------- --------------------------
Michael B. Lewis Richard J. Nash
Its: President
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STATE OF MICHIGAN)
) SS.
COUNTY OF OAKLAND)
Personally came before me this 10th day of December, 1996, the above
named Richard J. Nash, to me known to be the person who executed the foregoing
Agreement, who acknowledged that as the duly authorized President of LDM
Technologies, Inc., a member of LDM Holdings, L.L.C., he executed the same as
the free act and deed of such corporation, by its authority.
MICHAEL B. LEWIS MICHAEL B. LEWIS
Notary Public, Oakland County, MI -----------------------------------
My Commission Expires Aug. 2, 1998 Notary Public, County, MI
----------
My Commission Expires:
-------------
STATE OF MICHIGAN)
) SS.
COUNTY OF OAKLAND)
Personally came before me this 10th day of December, 1996, the above
named Richard J. Nash, to me known to be the person who executed the foregoing
Agreement, who acknowledged that as the duly authorized President of LDM
Technologies, Inc. he executed the same as the free act and deed of such
corporation, by its authority.
MICHAEL B. LEWIS MICHAEL B. LEWIS
Notary Public, Oakland County, MI -----------------------------------
My Commission Expires Aug. 2, 1998 Notary Public, County, MI
----------
My Commission Expires:
-------------
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