ALLTRISTA ZINC PRODUCTS, L.P.
AGREEMENT OF LIMITED PARTNERSHIP
Article I
Formation of Limited Partnership:
Name; Principal Place of Business
Section 1.1. Formation. Alltrista Newco Corporation, an Indiana
corporation, as general partner (the "General Partner"), and Quoin Corporation,
a Delaware corporation, as limited partner ("Limited Partner") do hereby form a
limited partnership (the "Partnership") under the Indiana Revised Uniform
Limited Partnership Act.
Section 1.2. Name. The Partnership shall be conducted under the name of
Alltrista Zinc Products, L.P. or such other name as the General Partner shall
hereafter designate by written notice to the Limited Partner.
Section 1.3. Offices and Principal Place of Business. The offices and
principal place of business of the Partnership shall be 2500 Old Stage Road,
Greeneville, Tennessee 37743-8950, unless changed to such other place as the
General Partner may from time to time designate by written notice to the Limited
Partner.
Section 1.4. Agent for Service of Process. The agent for service of
process for the Partnership shall be Alltrista Newco Corporation, 345 South High
Street, Suite 200, P.O. Box 5004, Muncie, Indiana 47307-5004, or any successor
at any different address as appointed by the General Partner.
ARTICLE II
Purpose of Partnership
The purpose of the Partnership is to manufacture and sell zinc products
and to do all things reasonable incident thereto, including, borrowing money for
Partnership purposes, and securing such borrowing by mortgages, pledges or other
liens.
ARTICLE III
Term of Partnership
The Partnership shall commence with the filing of the Certificate of
Limited Partnership with the Indiana Secretary of State, and shall continue
until December 30, 2046, unless dissolved sooner by law or as provided
hereafter.
ARTICLE IV
Partners
Section 4.1. Names, Addresses and Capital Contributions of Partners.
The General Partner and the Limited Partner (both of whom are collectively
referred to as "Partners" and individually referred to as "Partner"), their
respective addresses, their respective capital contributions to the Partnership
and their respective ownership interests in the Partnership ("Percentage
Interests") are set forth on Exhibit "A", attached hereto and made a part
hereof.
Section 4.2. Partner Loans; Capital Contributions; Withdrawals. Loans
by any Partner to the Partnership shall not be considered contributions to the
capital of the Partnership. No Partner shall be entitled to withdraw any part of
its capital contribution or to receive any distribution from the Partnership,
except as provided herein; nor shall any Partner be required to make any capital
contributions to the Partnership other than the capital contributions required
to be made by such Partner under Section 4.1 hereof. No interest shall be paid
on any capital contributed to the Partnership.
Section 4.3. Limitation on Liability. The Limited Partner shall not be
liable for any of the debts of the Partnership, except as provided by law. The
Limited Partner shall not be required to loan any funds to the Partnership. The
General Partner shall have no personal liability for the repayment of the
capital contribution of the Limited Partners. The Limited Partner shall not be
required to make any contribution to the Partnership by reason of any negative
balance in its Capital Account, nor shall any negative balance in a Partner's
Capital Account create any liability on the part of the Partner to any third
party.
Section 4.4. Admission of Additional Limited Partners. In order to
obtain additional funds, the General Partner may admit to the Partnership
additional limited partners who will participate in the profits, losses,
available cash flow and ownership of the assets of the Partnership on such terms
as are determined by the General Partner. Admission of such additional limited
partner(s) may result in a reduction of the interests of the Limited Partner.
ARTICLE V
Accounting and Records
Section 5.1. Records and Accounting. The books and records of the
Partnership shall be kept, and the financial position and the results of its
operations recorded, on an accrual basis and in accordance with the accounting
methods followed for federal income tax purposes. The books and records of the
Partnership shall reflect all Partnership transactions and shall be appropriate
and adequate for the Partnership's business. The fiscal year of the Partnership
for financial reporting and for federal income tax purposes shall be the
calendar year.
Section 5.2. Access to Accounting Records. All books and records of the
Partnership shall be maintained at the offices of the Partnership or at the
Partnership's principal place of business, and the Limited Partner shall have
access to them at the offices of the Partnership and the right to inspect and
copy them at reasonable times.
Section 5.3. Annual and Tax Information. The General Partner shall use
all reasonable efforts to deliver to each Partner (a) within ninety (90) days
after the end of each fiscal year all information necessary for the preparation
of each Partner's federal income tax return; and (b) within one hundred twenty
(120) days after the end of each fiscal year a financial report of the
Partnership for such fiscal year, containing a balance sheet as of the last day
of the year then ended; an income statement for the year then ended, a statement
of sources and applications of funds, a statement of reconciliation of the
capital accounts of the Partners, and a report of the activities of the
Partnership during the period covered by the report.
Section 5.4. Accounting Decisions. All decisions as to accounting
matters, except as otherwise specifically set forth herein, shall be made by the
General Partner. The General Partner may rely upon the advice of its accountants
as to whether such decisions are in accordance with accounting methods followed
for federal income tax purposes.
Section 5.5. Tax Matters Partner. The General Partner is hereby
designated the "Tax Matters Partner" of the Partnership, as that term is defined
in Section 6231 of the Code (as hereinafter defined).
Section 5.6. Federal Income Tax Elections. The General Partner of the
Partnership may make all elections for federal income tax purposes, including
the following:
(a) To the extent permitted by applicable law and
regulations, elect to use an accelerated depreciation method on each
depreciable unit of the assets of the Partnership.
(b) In case of a transfer of all or part of the
Partnership interest of any Partner, the Partnership may elect,
pursuant to Section 734, 743 and 754 of the Code (or corresponding
provision of future law), to adjust the basis of the assets of the
Partnership.
ARTICLE VI
Profits and Capital
Section 6.1. Allocation of Profits from Operations and Capital
Transactions. After giving effect to the special allocations se forth in Section
6.3, Profits shall be allocated in the following order:
(a) First, if any Losses have been allocated to the
Partners pursuant to Section 6.2, then Profits shall be first allocated
to the Partners in the same
proportion as such Losses were allocated, until each Partner's Capital
Account equals what it would have been had there been no such
allocations of Losses.
(b) Second, Profits shall be allocated 99.00% to the
Limited Partner and 1.00% to the General Partner.
Section 6.2. Allocation of Losses from Operations and Capital
Transactions. After giving effect to the special allocations set forth in
Section 6.3, Losses shall be allocated in the following order:
(a) First, if any Profit has been allocated to the
Partners pursuant to Section 6.1, then Losses shall first be allocated
to the Partners in the same proportion as such Profits were allocated,
until Partner's Capital Account equals what it would have been had
there been no such allocation of Profits.
(b) Second, Losses shall be allocated 99.00% to the
Limited Partner and 1.00% to the General Partner.
Section 6.3. Special Allocations. The following special allocations
shall be made in the following order:
(a) Minimum Gain Chargeback. Except as otherwise provided
in Treasury Section 1.704-2(f), if in any fiscal year or other period
there is a net decrease in the amount of the Partnership Minimum Gain,
then each Partner shall first be allocated items of income and gain for
such year (and, if necessary, subsequent years) in an amount equal to
such Partner's share of the net decrease in such Partnership Minimum
Gain during such year (as determined under Treasury regulation Section
1.704-2(g)(2)); provided, however, if there is insufficient income and
gain to make the allocation specified above for all Partners for such
year, the income and gain shall be allocated among the Partners in
proportion to the respective amount they would have been allocated had
there been an unlimited amount of income and gain for such year.
(b) Partner Minimum Gain Chargeback. Except as otherwise
provided in Treasury Regulation Section 1.704-2(i)(4), if in any year
there is a net decrease in the amount of the Partner Nonrecourse Debt
Minimum Gain, then each Partner shall first be allocated times of
income and gain for such year (and, if necessary, subsequent years) in
an amount equal to such Partner's share of the net decrease in such
Partner Nonrecourse Debt Minimum Gain (as determined under Treasury
Regulation Section 1.704-2(i)(4)); provided; however, if there is
sufficient income and gain in a year to make the allocation specified
above for all Partners for such year, the income and gain shall be
allocated among the Partners in proportion to the respective amounts
they would have been allocated had there been an unlimited amount of
income and gain for such year.
(c) Qualified Income Offset. In the event that any Limited
Partner unexpectedly receives any adjustments, allocations, or
distributions described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6), 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 Treasury
Regulations, the Capital Account deficit of such Limited Partner as
quickly as possible.
(d) Limited on Loss Allocations. Notwithstanding the
provisions of Sections 6.1 and 6.2 and except as otherwise provided in
this Section 6.3, Losses allocated pursuant to Sections 6.2(a) and
6.2(b) shall not be allocated to the Limited Partner if and to the
extent that such allocation would cause, as of the end of the
Partnership taxable year, the negative balance in such Limited
Partner's Capital Account to exceed the amount of such Limited
Partner's share of Partnership Minimum Gain plus the amount of such
Limited Partner's share of Partner Nonrecourse Debt Minimum Gain, if
any, plus the amount of such Limited Partner's obligation, if any, to
restore a deficit balance in its Capital Account. Any losses which are
not allocated to the Limited Partners by virtue of the application of
this Section 6.3(d) shall be allocated to the General Partner.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any
fiscal year shall be specially allocated among the Partners in
proportion their Percentage Interests as provided under Treasury
Regulation Section 1.704-2(e).
(f) Partner Nonrecourse Deductions. Any Partner
Nonrecourse Deductions for any fiscal year 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 Treasury Regulation Section
1.704-2(i)(1).
(g) Curative Allocations. The allocations set forth in
this Section 6.3 (the "Regulatory Allocations") are intended to comply
with certain requirements of Treasury Regulation Sections 1.704-1 and
1.704-2. In the event that Profits and Losses are allocated pursuant to
Section 6.3, subsequent Profits and Losses (or items thereof) will
first be allocated (subject to Section 6.3) to the Partners in a manner
which will result in each Partner having a Capital Account balance
equal to that which would have resulted had the Regulatory Allocations
not occurred.
Section 6.4. Other Allocation Rules. Notwithstanding the foregoing
provisions of this Article VI:
(a) For federal income tax purposes, income, gain, loss
and deduction with respect to property which has a variation between
its basis computed in accordance with Treasury Regulation Section
1.704-1(b) and its basis computed for federal income tax purposes shall
be shared among Partners so as to take
account of such variation in a manner consistent with the principles of
Section 704(c) of the Code and Treasury Regulation Section
1.704-1(b)(2)(iv)(g).
(b) Whenever a proportionate part of Partnership profit or
loss is credited or charged to a Partner's Capital Account, every item
of income, gain, loss, deduction, credit or tax preference entering
into the computation of such profit or loss, or applicable to the
period during which such profit or loss was realized, shall be
considered credited or charged, as the case may be, to such Partner's
Capital Account in the same proportion.
(c) In the event of an increase or a decrease in the
interest of a Partner at any time after the Partnership's initial
fiscal year other than at the end of a fiscal year of the Partnership,
the share of the Profits and Losses, tax credits and the Cash Flow of
the Partnership shall be allocated among the persons whose shares are
changed in the same ratio as the number of days in such Partnership
fiscal year before and after the date of such transfer, except that
Capital Transaction Profits and Losses and proceeds shall be allocated
and distributed to the person or entity who is a Partner as of the date
of such event.
(d) An individual Capital Account shall be established and
maintained for each Partner, including any additional or substituted
Partner who shall hereafter receive an interest in the Partnership. The
original Capital Account established for each such substituted Partner
shall be in the same amount as, and shall replace, the Capital Account
of the Partner which such substituted Partner succeeds, and, for the
purposes of this Agreement, such substituted Partner shall be deemed to
have made the capital contribution, to the extent actually paid in, of
the Partner which such substituted Partner succeeds. The term
"substituted Partner", as used in this Section 6.4(d), shall mean a
person who shall become entitled to receive a share of the Profits,
Losses, tax credits and distributions of the Partnership by reason of
such person succeeding to the interest in the Partnership of a Partner
by assignment of all or any part of a Partner's interest in the
Partnership. To the extent a substituted Partner receives less than
100% of the interest in the Partnership of a Partner he succeeds, the
original Capital Account of such substituted Partner and his capital
contribution shall be in proportion to the interest he receives and the
Capital Account of the Partner who retains a partial interest in the
Partnership and his capital contribution shall continue, and not be
replaced, in proportion to the interest he retains. Nothing in this
Section 6.4(d) shall affect the limitations on transferability of
interests in the Partnership set forth in Articles VIII and IX.
Section 6.5. Non-Liquidating Distributions. The General Partner shall
determine the amount, if any, of Cash Flow and proceeds from Capital
Transactions that shall be distributed to the Partners. Any amount distributed
under this Section 6.5 shall be distributed 99.00% to the Limited Partner and
1.00% to the General Partner.
Section 6.6. Distributions in Liquidation.
(a) Upon dissolution and termination, after payment of, or
adequate provision for, the debts and obligations of the Partnership
(including to Partners to the extent otherwise permitted by law), the
remaining assets of the Partnership (or the proceeds of sales or other
dispositions in liquidation of the Partnership assets, as may be
determined by the General Partner) shall be distributed to the Partners
in accordance with the positive balances in their Capital Accounts
after taking into account all Capital Account adjustments for the
Partnership taxable year, including adjustments to Capital Accounts
pursuant to Section 6.1, Section 6.2 and Section 6.6(b). In the event
that a General Partner has a deficit balance in his or its Capital
Account following the liquidation of the Partnership or his or its
interest in the Partnership, as determined after taking into account
all Capital Account adjustments for the Partnership taxable year in
which such liquidation occurs, such General Partner shall pay to the
Partnership in cash an amount equal to the deficit balance in his or
its Capital Account by the end of such taxable year (or, if later,
within ninety (90) days after the date of such liquidation) which
amount shall, upon liquidation of the Partnership, be paid to recourse
creditors of the Partnership or distributed to other Partners in
accordance with the positive balances in their Capital Accounts.
(b) With respect to assets distributed in kind to the Partners
in liquidation or otherwise, (i) any unrealized appreciation or
unrealized depreciation in the values of such assets shall be deemed to
be profits and losses realized by the Partnership immediately prior to
the liquidation or other distribution event; and (ii) such Profits and
Losses shall be allocated to the Partners in accordance with Section
6.1 and Section 6.2 and any property so distributed shall be treated as
a distribution of an amount in cash equal to the excess of such fair
market value over the outstanding principal balance of and accrued
interest on any debt by which the property is encumbered. For the
purposes of this Section 6.6(b ), "unrealized appreciation" or
"unrealized depreciation" shall mean the difference between the fair
market value of such assets, taking into account the fair market value
of the associated financing but subject to Section 7701(g) of the Code,
and the adjusted basis of such assets as computed under the principles
of Treasury Regulation Section 1.704-1 (b). This Section 6.6(b) is
merely intended to provide a rule for allocating unrealized gains and
losses upon liquidation or other distribution event, and nothing
contained in this Section 6.6(b) or elsewhere in this Agreement is
intended to treat or cause such distributions to be treated as sales
for value. The fair market value of such assets shall be determined by
an appraiser to be selected by the General Partner.
Section 6.7. Definitions.
(a) "Capital Account" means, with respect to any Partner, the
capital account maintained with respect to such Partner consisting of
(1) the amount of cash such Partner has contributed to the Partnership,
plus (2) the fair market value of any property such Partner has
contributed to the Partnership net of liabilities assumed by the
Partnership or to which such property is subject, plus (3) the amount
of Profits and tax-exempt income
allocated to such Partner, less (4) the amount of Losses allocated to
such Partner, less (5) the amount of all cash distributed to such
Partner, less (6) the fair market value of any property distributed to
such Partner net of liabilities assumed by such Partner or to which
such property is subject, less (7) such Partner's share of any other
expenditures which are not deductible by the Partnership for federal
income tax purposes or which are not allowable as additions to the
basis of Partnership property, and (8) shall otherwise be subject to
such other adjustments as may be required under the Code and Treasury
Regulation Section 1.704-1(b)(2)(iv).
(b) "Capital Transactions" means the proceeds of the sale,
refinancing, exchange, condemnation, destruction (including insurance
proceeds in excess of amounts required to be applied to restore the
insured property) or other disposition of all or any substantial part
of the Partnership's property.
(c) "Cash Flow" means the net operating profits or losses of
the Partnership, including as expenses all fees paid to the General
Partner and its affiliates, (1) increased by depreciation and other
charges not requiring the expenditure of revenue from operations; and
(2) reduced by (a) debt amortization; (b) reasonable reserves for
working capital, contingencies, anticipated expenses, capital
improvements and replacements; and (c) expenditures for capital
improvements and replacements in excess of reserves. "Cash Flow" does
not include cash from capital transactions. Cash Flow shall be
determined separately for each fiscal year of the Partnership.
(d) "Code" means the Internal Revenue Code of 1986, as
amended, as it may be further amended from time to time.
(e) "Partner Nonrecourse Debt" means any Nonrecourse Liability
(as defined in Treasury Regulation Section 1.752-1(a)(2)) of the
Partnership for which any Partner or Related Person bears the economic
risk of loss under Treasury Regulation Section 1.752-2.
(f) "Partner Nonrecourse Debt Minimum Gain" means an amount
with respect to each Partner Nonrecourse Debt, equal to the Partnership
Minimum Gain that would result if such Partner Nonrecourse Debt were
treated as Partnership Nonrecourse Liability, determined in accordance
with Treasury Regulations Section 1.704-2(i)(3).
(g) "Partner Nonrecourse Deductions" has the meaning set forth
in Treasury Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2).
(h) "Partnership Minimum Gain" shall mean the amount computed
under Treasury Regulation Section 1.704-2(d)(1) with respect to the
Partnership's nonrecourse liabilities.
(i) "Partnership Non-Recourse Liability" means any Partnership
liability (or portion thereof) for which no Partner or Related Person
bears the economic risk of loss as defined in Treasury regulation
Section l.704-2(b )(3).
(j) "Percentage Interest" means with respect to the General
Partner, 1.00% and with respect to the Limited Partners, 99.00%.
(k) "Profits and Losses" means the Partnership's taxable
income and losses, and each item of income, gain, loss, deduction or
credit entering into the computation thereof, as determined in
accordance with Section 703(a) of the Code except that for this purpose
(1) al items of income, gain, deduction or loss required to be
separately stated by Section 703(a)(1) of the code shall be included in
taxable income or loss; (2) tax exempt income shall be added to taxable
income or loss; (3) any expenditures described in Section 705(a)(2)(B)
of the Code (or treated as Section 705(a)(2)(B) expenditures) and not
otherwise taken into account in computing taxable income or loss shall
be subtracted; and (4) taxable income or loss shall be adjusted to
reflect any item of income or loss specifically allocated in Article VI
hereof.
(l) "Qualified Income Offset Item" means (1) an allocation of
Loss or deduction that, as of the end of each year, reasonably is
expected to be made (a) pursuant to Section 704(e)(2) of the Code to a
donee of an interest in the Partnership, (b) pursuant to Section 706(d)
of the Code as the result of a change in any Partner's interest in the
Partnership, or (c) pursuant to Treasury Regulation Section
1.751-1(b)(2)(ii) as the result of a distribution by the Partnership of
unrealized receivables or inventory items, and (2) a distribution that,
as of the end of such year, reasonably is expected to be made to a
Partner to the extent it exceeds offsetting increases to such Partner's
Capital Account which reasonably are expected to occur during or prior
to the Partnership taxable year in which such distribution reasonably
is expected to occur.
(m) "Related Person" means a person related to a Partner
within the meaning of Treasury Regulation Section 1.752-4(b).
ARTICLE VII
Management and Control of Business
Section 7.1. Duties of General Partner. The General Partner shall have
the exclusive management and control of the business of the Partnership and
shall diligently and faithfully devote such time to the business of the
Partnership as may be necessary to conduct it for the greatest advantage of the
Partnership and shall render to the Partners, whenever reasonably requested by
any of them, a just and faithful account of all dealings and transactions in
relation to the business of the Partnership. The General Partner may delegate
any of its duties under this Agreement to any related person, firm or
corporation, provided that the General Partner shall continue to be primarily
responsible for the performance of such duties. The General Partner or any of
its affiliates may engage in other activities of the same nature and other
business activities of any nature.
Section 7.2. Powers of General Partner. The General Partner shall have
all necessary powers to carry out the purposes, business and objectives of the
Partnership, including the right to enter into and carry out contracts of all
kinds; to employ agents, employees, consultants and advisors on behalf of the
Partnership; to lend or borrow money and to issue evidences of indebtedness; to
bring and defend actions in law or at equity; to buy, own, manage, sell, lease,
mortgage, pledge or otherwise acquire or dispose of Partnership property
(including without limitation future capital contributions); and to determine
the amount of Cash Flow from time to time as provided in Section 6.7(c). The
General Partner may deal with any related person, firm or corporation on terms
and conditions that would be available from an independent responsible third
party that is willing to perform. The General Partner is specifically empowered
on behalf of the Partnership to acquire the Properties and to borrow any funds
necessary to pay the costs thereof.
Section 7.3. Reimbursement of Expenses. The General Partner shall be
entitled to reimbursement from the Partnership of all expenses of the
Partnership reasonably incurred and paid by it on behalf of the Partnership.
Section 7.4. Organizational Expenses. The Partnership shall pay all
expenses incurred in the organization of the Partnership.
Section 7.5. Limitations on Limited Partner. The Limited Partner shall
not participate in the management or control of the Partnership's business, nor
shall they transact any business for the Partnership, nor shall they have the
power to sign for or bind the Partnership.
Section 7.6. Limitation of Liability. The General Partner shall not be
liable to the Limited Partners for any act or omission by it in good faith and
in a manner reasonably believed by it to be within the scope of its authority.
The General Partner shall only be liable for actual fraud, willful misconduct,
or gross negligence. Any action or omission on advice of counsel for the
Partnership shall be deemed as having been taken in good faith.
ARTICLE VIII
Changes in General Partner
Section 8.1. Withdrawal of the General Partner. The General Partner may
voluntarily withdraw from the Partnership or sell, assign or otherwise transfer
its rights and duties hereunder, provided that the transferee must accept all of
the duties of the General Partner hereunder. The General Partner may assign its
economic interest in the Partnership without the assignee assuming the duties of
the General Partner.
Section 8.2. Removal of a General Partner. The General Partner may not
be removed, except for willful or wanton disregard of its duties or gross
negligence. Prior to undertaking any such removal of the General Partner, the
Limited Partner shall provide written notice to the General Partner of any such
default constituting cause for removal and shall allow the General Partner a
period of thirty (30) days after such notice to cure the default prior to
effecting any removal of the General Partner. After any such removal, such
General Partner interest shall
become a Limited Partners interest herein. At any time after a removal of a
General Partner, the removed General Partner shall have the right, upon delivery
of a notice to such effect to the Partnership, to cause the Partnership to be
dissolved as quickly as practicable, with its assets to be disposed of and its
affairs wound up with the proceeds from the liquidation of the Partnership's
assets to be distributed in the manner provided in Section 6.6 hereof. Upon any
removal of a General Partner, the Partnership must promptly pay to the removed
General Partner all amounts then accrued and owing to the removed General
Partner. A General Partner so removed will not be liable for any obligations of
the Partnership after the effective date of its removal. If, after any such
removal, there shall be no General Partner having a sufficient interest in the
Partnership to cause the Partnership to continue to be treated as a partnership
under the Code and as a limited partnership under the Uniform Act (as determined
by independent legal counsel for the Partnership), all Partnership Interests
shall be reduced proportionately in accordance with the then existing
percentages for allocation of profits and losses so that the successor General
Partner will have the requisite interest in the Partnership pursuant to the Code
and the Uniform Act.
Section 8.3. Admission of Additional Partners. Additional General
Partners may only be admitted to the Partnership with the unanimous written
consent of all the Partners.
ARTICLE IX
Transfers of Limited Partnership Interests
Section 9.1. Transfer and Assignment of Limited Partnership Interest.
No Limited Partner shall assign, convey, sell, encumber or in any way alienate
all or any part of its interest in the Partnership. Any attempted transfer of a
limited partnership interest shall be null and void.
ARTICLE X
Termination
Section 10.1. Dissolution. The Partnership shall be dissolved, its
assets shall be disposed of and its affairs wound up on the first to occur of
the following:
(a) A determination by the General Partner that the Partnership
should be dissolved;
(b) The General Partner shall dissolve, liquidate, or be adjudicated
a bankrupt;
(c) Sale of all or substantially all of the assets of the
Partnership; or
(d) The expiration of the Partnership term.
(e) The voluntary or involuntary withdrawal of a General Partner.
The proceeds from the liquidation of the Partnership assets shall be
distributed in the manner provided in Section 6.6.
Section 10.2. Continuation. Upon the bankruptcy, dissolution or
withdrawal of a General Partner, the business of the Partnership will be
continued if within ninety (90) calendar days the remaining Partners elect by
written action to continue the business of the Partnership and, to the extent
that they desire or if there are no remaining General Partners, agree to the
appointment, effective as of the date of the bankruptcy, dissolution or
withdrawal, of a new General Partner of the Partnership. If the business of the
Partnership is continued, the interest of the General Partner will be converted
to that of a limited partner. If the Limited Partners fail to continue the
Partnership's business as provided in this Section 10.2, the Partnership will be
liquidated under Section 6.6.
ARTICLE XI
General
Section 11.1. Counterparts. This Agreement may be signed by each party
hereto upon a separate copy, in which event all such copies shall constitute a
single counterpart of this Agreement.
Section 11.2. Indemnification of General Partner.
(a) The Partnership shall indemnify the General
Partner and any of its employees or agents, against any loss
or threat of loss as a result of any claim or legal proceeding
related to the performance or nonperformance of any act
concerning the activities of the Partnership; provided,
however, that the General Partner or the employee or agent of
the Partnership against whom claim is made or the legal
proceeding is directed, was not guilty of fraud, gross
negligence or bad faith in such performance or nonperformance
and provided, further, that this obligation to indemnify the
General Partner shall apply to claims or legal proceedings
against the General Partner by one or more Limited Partners.
(b) It is the intent of this Section 11.2 to empower
the Partnership to provide indemnification to the fullest
extent possible as long as such indemnification is not
prohibited by law or by the express terms of this Section
11.2. Therefore, indemnification may be provided irrespective
of the nature of the legal or equitable theory upon which a
claim is made, including but not limited to, whether or not
the person to be indemnified is charged with negligence,
breach of contract, breach of warranty, strict liability, or
any violation of federal or state securities law. The
provisions of this Section 11.2 shall not limit any other
rights of indemnification to which the General Partner
otherwise may be entitled by law.
(c) The indemnification authorized by this Section
11.2 shall include payment of (1) reasonable attorney's fees
or other expenses incurred in settling any claim or threatened
action or incurred in any finally adjudicated legal
proceeding; and (2) the
removal of any liens affecting any property of the indemnitee.
Indemnification shall be made from assets of the Partnership, but
neither the General Partner nor any Limited Partners shall be
personally liable to any indemnitee. This Section 11.2 shall inure to
the benefit of the General Partner, its members, managers, employees
and agents, the employees and agents of the Partnership, and their
respective heirs, executors, administrators, successors and assigns.
Section 11.3. Amendment. This Agreement may be amended at any time by
the General Partner by written notice to the Limited Partners; provided,
however, that any such amendment shall not reduce the interest of any Partner in
the profits and losses, Cash Flow or other distributions of the Partnership
without obtaining the prior written consent of that Partner. Upon amendment of
this Agreement, the Certificate of Limited Partnership shall also be amended, if
necessary, to reflect such change.
Section 11.4. Conflict With Indiana Revised Uniform Limited Partnership
Act. In the event of a conflict between this Agreement and the Indiana Revised
Uniform Limited Partnership Act, it is the intention of the parties hereto that
this Agreement shall prevail to the fullest extent permitted by law.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned Partners have executed this Agreement
effective as of the 1st day of January, 1997.
GENERAL PARTNER
ALLTRISTA NEWCO CORPORATION, an Indiana
corporation
By: /s/ Jerry T. McDowell, President
--------------------------------
QUOIN CORPORATION, an Delaware corporation
By: /s/ Monte L. Miller, President
------------------------------
ALLTRISTA ZINC PROPERTIES, L.P.
AGREEMENT OF LIMITED PARTNERSHIP
Exhibit A
Initial Capital
Name and Address Percentage Interest Contributions
- ---------------- ------------------- ----------------
1. GENERAL PARTNER
ALLTRISTA NEWCO CORPORATION 1.00% $1.00
345 South High Street, Suite 200
P.O. Box 5004
Muncie, Indiana 47307-5004
2. LIMITED PARTNER
QUOIN CORPORATION Suite 1100 99.0% $99.00
300 South Fourth Street Las Vegas, NY 89101
TOTAL 100.00% $100.00