EXHIBIT 3.20
EXECUTION COPY
DURA G.P.
PARTNERSHIP
AGREEMENT
Effective as of December 30, 2001
TABLE OF CONTENTS
ARTICLE AND SECTION PAGE
- ------------------- ----
Preamble and Recitations.......................................................1
ARTICLE I ORGANIZATION.....................................................1
1.1 Formation........................................................1
1.2 Name.............................................................2
1.3 Consents; Power of Attorney......................................2
1.4 Purpose of Business..............................................2
1.5 Place of Business................................................3
1.6 Effective Dates and Term.........................................3
1.7 Names and Addresses of Partners..................................3
1.8 Waiver of Action for Partition...................................3
1.9 Organizational Obligations.......................................3
ARTICLE II CAPITAL CONTRIBUTIONS AND OTHER FUNDING..........................4
2.1 Capital Contribution(s) of Dura..................................4
2.2 Capital Contribution of Atwood...................................4
2.3 Additional Capital Funding.......................................4
2.4 Capital Accounts, Adjustments, Substantial Economic Effect.......5
2.5 No Third Party Rights............................................5
2.6 Interest.........................................................5
2.7 Withdrawals......................................................5
2.8 Partner Loans....................................................5
ARTICLE III DISTRIBUTIONS; ALLOCATION OF PROFITS, LOSSES,
CERTAIN EXPENSES.................................................6
3.1 Distributions....................................................6
3.2 Partnership Allocations..........................................6
3.3 Management and Certain Other Expenses............................6
ARTICLE IV POWERS, DUTIES, DECISIONS, LIABILITIES AND
COMPENSATION OF PARTNERS.........................................7
4.1 Authority of Partners............................................7
4.2 Management and Control of Partnership............................7
4.3 Certain Dealings of Partners with the Partnership................8
4.4 Additional Duties and Obligations of Partners....................8
4.5 Indemnification..................................................9
4.6 Liability of Partners; Standard of Care.........................10
i
ARTICLE V MEETINGS AND VOTING.............................................10
5.1 Meetings of the Partnership.....................................10
5.2 Voting..........................................................10
ARTICLE VI BOOKS OF ACCOUNT, RECORDS AND REPORTS; FISCAL MATTERS...........10
6.1 Accounting......................................................10
6.2 Reports.........................................................11
6.3 Additional Reports..............................................11
6.4 Fiscal Year.....................................................11
6.5 Further Investigations..........................................11
6.6 Partnership Funds...............................................12
ARTICLE VII TAX MATTERS.....................................................12
7.1 Tax Matters Partner.............................................12
7.2 Tax Information.................................................12
7.3 Returns.........................................................12
7.4 Elections.......................................................13
7.5 Consistency of Tax Treatment....................................13
7.6 Tax Coordinators................................................13
7.7 Taxes on the Partnership........................................14
7.8 Survival of Tax Obligations.....................................14
ARTICLE VIII ADMISSION OF ADDITIONAL MEMBERS; REMOVAL AND
WITHDRAWAL OF NEW MEMBERS; TRANSFERS OF INTERESTS...............14
8.1 Admission of New Partners.......................................14
8.2 Removal, Withdrawal, Transfer of Interests......................14
ARTICLE IX DISSOLUTION OF THE PARTNERSHIP..................................15
9.1 Dissolution.....................................................15
9.2 Payment of Debts; Distributions.................................16
9.3 Reserve.........................................................17
9.4 Final Accounting................................................17
ARTICLE X REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS................17
10.1 Capacity and Authority..........................................17
10.2 Registration....................................................17
ii
ARTICLE XI MISCELLANEOUS...................................................18
11.1 Amendments......................................................18
11.2 Governing Law...................................................19
11.3 Notices.........................................................19
11.4 Counterparts....................................................20
11.5 Agreement for Further Execution.................................20
11.6 Entire Agreement................................................20
11.7 Severability....................................................20
11.8 Captions........................................................21
11.9 Number and Gender...............................................21
11.10 Holidays........................................................21
Exhibit A - Table of Defined Terms
Exhibit B - Names, Addresses and Interests of Partners
Exhibit C - List of Ratified Obligations and Agreements
Exhibit D - Capital Contributions
iii
AGREEMENT
THIS AGREEMENT OF GENERAL PARTNERSHIP ("Agreement") is made and executed as
of this 30TH day of December, 2001, by and between the following parties:
(i) Dura Operating Corp. ("Dura"), a corporation duly organized
and existing under the laws of the state of Delaware, with its
principal corporate offices at 2791 Research Drive, Rochester Hills,
Michigan 48309; and,
(ii) Atwood Automotive, Inc. ("Atwood"), a corporation duly
organized and existing under the laws of the state of Michigan, with
its principal corporate offices at 2791 Research Drive, Rochester
Hills, Michigan 48309.
The parties are collectively referred to herein as the "Partners" or
individually as a "Partner."
RECITALS:
WHEREAS, the Partners desire to form this general partnership
("Partnership") to receive or acquire, hold, manage, lease and otherwise deal
with certain assets at the locations listed on EXHIBIT D attached hereto;
WHEREAS, the Partners desire to cause the Partnership to receive or acquire
those certain assets more particularly described in EXHIBIT D attached hereto
and thereafter to own, maintain, lease and operate such assets; and,
WHEREAS, the Partners desire to enter into this Agreement in order to set
forth the entire agreement and the relationships as now intended between the
Partners;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants, conditions and agreements herein set forth, the Partnership Agreement
shall be stated in its entirety as follows:
ARTICLE I
ORGANIZATION
SECTION 1.1 - FORMATION.
The partnership is formed as a general partnership under and subject to the
Delaware Revised Uniform Partnership Act (the "Partnership Act"). Except as is
expressly herein stipulated to the contrary, the rights and obligations of the
Partners and
the administration and termination of the Partnership shall be governed by the
Partnership Act.
SECTION 1.2 - NAME.
The name of the Partnership is "DURA G.P." In addition, the Partnership may
adopt such trade names and trade styles as the Partners may from time to time
consider appropriate. The Partners shall execute all assumed or fictitious name
certificates required by law to be published or filed, in connection with the
formation and operation of the Partnership.
SECTION 1.3 - CONSENTS; POWER OF ATTORNEY.
(a) The Partners each hereby consent and agree to the filing with the
Secretary of State of the State of Delaware of a Statement of Partnership
Existence and of such other certificates or instruments as may be necessary to
effect this Agreement, and do hereby constitute the Managing General Partner (as
hereinafter defined) as their lawful attorney-in-fact for the purpose of
executing and filing such certificates on their behalf.
(b) Each Partner, including any Partner who becomes such after the date
hereof, hereby irrevocably constitutes and appoints the Managing General Partner
as its true and lawful attorney, in its name, place and stead, solely to make,
execute, sign and file any certificate or instrument which may be required by
virtue of any amendment to this Agreement or in order to effectuate any change
in the membership of the Partnership, or the amount of capital contributed
thereto, or the dissolution and termination thereof in each case pursuant to the
terms of this Agreement. The Managing General Partner shall promptly furnish
each Partner with copies of all such certificates or instruments. Such attorney
shall not have the right, power or authority on behalf of any of the Partners to
consent to any amendments to this Agreement or otherwise to modify this
Agreement when acting in such capacity. This power of attorney is coupled with
an interest and shall continue in full force and effect, notwithstanding the
subsequent disability, dissolution or termination of any Managing General
Partner.
SECTION 1.4 - PURPOSE OF BUSINESS.
The purpose for which the Partnership has been formed and the powers which
it may exercise, all being in the furtherance of and not in limitation of the
general powers conferred on general partnerships under the Partnership Act, are
as follows:
(a) to receive or acquire, invest in, design, purchase, construct, develop,
improve, finance, refinance, own, hold, maintain, renovate, sell, exchange,
lease, sub-lease and otherwise operate and manage the assets contributed to or
hereafter acquired by the Partnership (the "Property") and to engage in any and
all activities related to or incidental thereto.
2
(b) to do any and all things and to carry on any and all other activities
necessary, convenient or incidental to the accomplishment of any of the
foregoing purposes and powers or to the protection and benefit of the
Partnership, including, without limitation: (i) entering into contracts and
sub-contracts; (ii) providing for the financing of and borrowings secured by the
Property or any asset or assets of the Partnership on such terms as may be
necessary or beneficial; and (iii) entering into one or more agreements for
management and operation of the Property.
SECTION 1.5 - PLACE OF BUSINESS.
(a) The principal office of the Partnership shall be located at 2791
Research Drive, Rochester Hills, Michigan 48309 or any other location in
Michigan chosen by the Managing General Partner.
(b) The registered office of the Company shall be at CT Corporation, 1209
Orange Street, Wilmington, Delaware, 19801, or such other location(s) as the
Managing General Partner may duly designate pursuant to the Partnership Act.
SECTION 1.6 - EFFECTIVE DATES AND TERM.
The Partnership shall commence on the effective date of this Agreement
which date shall also be the effective date of the filing of the Statement of
Partnership Existence. The Partnership shall continue for a perpetual term,
unless terminated earlier pursuant to any provision of this Agreement.
SECTION 1.7 - NAMES AND ADDRESSES OF PARTNERS.
The names and addresses of the Partners are set forth in EXHIBIT B as
attached to this Agreement and made a part hereof.
SECTION 1.8 - WAIVER OF ACTION FOR PARTITION.
Each of the Partners hereto irrevocably waives during the term of the
Partnership any right that it may have to maintain any action for partition with
respect to the Property or assets of the Partnership.
SECTION 1.9 - ORGANIZATIONAL OBLIGATIONS.
The Partners recognize and specifically ratify, as valid obligations of the
Partnership, certain agreements set forth on EXHIBIT C which were entered into
prior to or contemporaneously with the execution of this Agreement and formation
of the Partnership and in furtherance of the goals and objectives of the
Partnership.
3
ARTICLE II
CAPITAL CONTRIBUTIONS AND OTHER FUNDING
SECTION 2.1 - CAPITAL CONTRIBUTION(S) OF DURA.
(a) As of the date of the closing of the organization of the Partnership
("Closing Date"), Dura shall have made or shall make a cash contribution to the
capital of the Partnership in the amount set forth on EXHIBIT D, which shall be
that amount, as determined by Dura in its sole discretion, which represents the
appropriate amount of working capital funds for general operation and management
of the assets to be contributed pursuant to Section 2.1(b).
(b) As of the Closing Date and pursuant to an Asset Transfer Agreement and
an Assignment and Assumption Agreement between the Partnership and Dura and
dated as of the date hereof, Dura shall have made or shall make a contribution
of the non-cash assets set forth on EXHIBIT D to the capital of the Partnership.
The Partners agree in connection with such contribution that the Capital Account
of Dura shall be credited with the fair market value of such property pursuant
to the rules of Treasury Regulations ss. 1.704-1(b)(2)(iv)(g).
(c) Except as otherwise provided in this Section and Sections 2.3 and 7.2
of this Agreement or by law, in no event shall Dura be required to contribute
additional capital to or for the benefit of the Partnership.
SECTION 2.2 - CAPITAL CONTRIBUTION OF ATWOOD.
(a) As of the Closing Date, Atwood shall make a cash contribution to the
capital of the Partnership in the amount set forth on EXHIBIT D.
(b) Except as otherwise provided in this Section and Sections 2.3 and 7.2
of this Agreement or by law, in no event shall Atwood be required to contribute
additional capital to or for the benefit of the Partnership.
SECTION 2.3 - ADDITIONAL CAPITAL FUNDING.
If at any time the Managing General Partner determines that the Partnership
requires additional capital funding, then it shall provide notice of the
requirement to each Partner. At such time, either or both of the Partners may,
but shall not be required to, make additional contributions to the capital of
the Partnership ("Additional Contributions"). Any contributions made pursuant to
this Section shall be in proportion to the Partners' respective Percentage
Interests (as hereinafter defined).
4
SECTION 2.4 - CAPITAL ACCOUNTS, ADJUSTMENTS, SUBSTANTIAL ECONOMIC EFFECT.
The Partnership shall establish and maintain a capital account ("Capital
Account") for each Partner. The Partners intend that the Capital Accounts of the
Partners shall be determined and maintained throughout the full term of the
Partnership in accordance with the rules of Section 704 of the Internal Revenue
Code of 1986, as amended (the "Code") and Treasury Regulations
ss.1.704-1(b)(2)(iv) or any subsequent similar provisions. Accordingly, the
Partners understand and agree that the amounts of profits and losses (including
any amounts of tax credit) allocated to each Partner as provided in Article III
hereof will be credited or debited to the Partners' Capital Accounts and will
affect the amounts received by the Partners upon liquidation and that Partners
may be required to restore any deficit in such account as provided in Section
7.2 of this Agreement.
SECTION 2.5 - NO THIRD PARTY RIGHTS.
The right of the Managing General Partner to require any additional capital
contributions pursuant to Section 2.3 or other payments to or for the benefit of
the Partnership (including Partner Loans (as hereinafter defined)) under the
terms of this Partnership Agreement shall not be construed as conferring any
rights or benefits to or upon any person not a party to this Agreement, or the
holder of any obligations secured by a mortgage, deed of trust, security
interest or other lien or encumbrance upon all or any part of the Property or
affecting the Partnership or any of its assets or any interest of a Partner
therein.
SECTION 2.6 - INTEREST.
No interest shall be paid on the Capital Account of any Partner provided,
that nothing contained in this Section shall affect the obligation of the
Partnership to pay interest on the unpaid balance of any Partner Loan (as
hereinafter defined) or other loans to the Partnership made by any Partner.
SECTION 2.7 - WITHDRAWALS.
The capital of the Partnership shall not be withdrawn by any Partner except
as provided in this Agreement.
SECTION 2.8 - PARTNER LOANS.
(a) If at any time, the Managing General Partner determines that the
Partnership requires additional funding, then at such time, the Partners or
either of them may but shall not be required to loan funds in the Partnership,
as a loan ("Partner Loan(s)").
(b) Any Partner Loans made pursuant to this Section shall bear interest
quarterly at that percentage rate which is equal to the prime lending rate of
Bank of
5
America, N.A. as posted and in effect at the beginning of each quarter for which
interest is determined plus one (1) additional percentage point.
ARTICLE III
DISTRIBUTIONS; ALLOCATION OF PROFITS, LOSSES, CERTAIN EXPENSES
SECTION 3.1 - DISTRIBUTIONS.
The Managing General Partner shall determine whether, and to what extent,
distributions shall be made by the Partnership to the Partners. Notwithstanding
the foregoing, so long as any Partner Loans remain outstanding, the Partnership
shall not make any distribution to any Partner with respect to such Partner's
equity interests in the Partnership.
SECTION 3.2 - PARTNERSHIP ALLOCATIONS.
(a) The Partners intend that the allocations of profits and losses provided
by this Section are for Federal income tax purposes as well as financial
accounting purposes. All profits and losses of the Partnership, including all
items of income, gain, deduction, loss, allowance, or credit shall be allocated
in accordance with the Partners' respective Percentage Interests as provided in
subsection (b) below.
(b) Each Partner's percentage interest ("Percentage Interest") in the
Partnership shall be the Percentage Interest set forth below:
(i) Dura 99.9%
(ii) Atwood 0.1%
------
TOTAL 100%
SECTION 3.3 - MANAGEMENT AND CERTAIN OTHER EXPENSES.
(a) The Managing General Partner (as hereinafter defined) shall be
reimbursed by the Partnership for all costs and expenses paid or incurred by it
for or on behalf of the Partnership including, but not limited to, (a) legal and
accounting fees and expenses, costs and expenses relating to the organization of
the Partnership, and (b) the costs and expenses of performing the duties of the
Tax Matters Partner including accountants, attorneys and other professional
fees.
(b) Dura shall be reimbursed by the Partnership for all costs and expenses
paid or incurred by it for or on behalf of the Partnership and relating to the
acquisition and transfer of the Property to the Partnership.
6
ARTICLE IV
POWERS, DUTIES, DECISIONS,
LIABILITIES, AND COMPENSATION OF PARTNERS
SECTION 4.1 - AUTHORITY OF PARTNERS.
(a) Subject to the limitations imposed by the Partnership Act and this
Agreement, the Partners shall have full and exclusive authority to manage and
control the business affairs of the Partnership and to make all decisions
regarding the business of the Partnership.
(b) The Partners shall exercise the authority provided in subsection (a) as
provided in Section 4.2, and except as otherwise expressly provided in the
Partnership Act, this Agreement, or authorized by the Managing General Partner
in writing, no Partner, acting alone (other than the Managing General Partner),
shall exercise any authority to act for, undertake or assume any obligations or
responsibility on behalf of the Partnership or any other Partner.
SECTION 4.2 - MANAGEMENT AND CONTROL OF PARTNERSHIP.
(a) The Managing General Partner shall direct, manage, control and conduct
the business of the Partnership, and shall cause its officers and employees to
devote such time to the Partnership business as may be necessary to adequately
and properly manage and supervise the Partnership business and affairs in an
efficient manner and discharge its obligations hereunder, but nothing in this
Agreement shall preclude the employment, at the expense of the Partnership, of
any agent or third party to manage or provide other services in respect of the
Partnership properties or administrative matters.
(b) All documents to be executed and delivered by or on behalf of the
Partnership shall be executed by the Managing General Partner.
(c) The Partners, including the Managing General Partner, may have other
business interests and may engage in other activities in addition to those
relating to the Partnership. Neither the Partnership nor any Partner shall have
the right by virtue of this Agreement or the Partnership relationship created
hereby in or to such other ventures or activities or to the income or proceeds
derived therefrom and, except as otherwise specifically agreed the pursuit of
such activities or ventures, even if competitive with the business of the
Partnership, shall not be deemed wrongful or improper.
(d) Dura shall be the managing general partner (the "Managing General
Partner") of the Partnership and shall perform or cause to be performed at the
Partnership's expense the following:
7
(i) preparation of the operating budget for the Partnership, if
determined to be appropriate by the Managing General Partner;
(ii) preparation and completion of all tax, accounting and clerical
functions of the Partnership as detailed herein and employment of such
accountants and attorneys as may be required from time to time to carry on the
business of the Partnership;
(iii) procure and maintain with responsible companies such insurance
and fidelity bonds as may be available in such amounts and covering such risks
as are deemed appropriate;
(iv) establish the bank accounts required for Partnership purposes as
set forth in Section 6.6 herein;
(v) commence litigation or the defense of the same or the settlement of
any litigation involving the Partnership; and
(vi) perform or complete all other activities incident to the
receiving, acquiring, holding, managing, operating, leasing, subleasing and
financing of the Property.
SECTION 4.3 - CERTAIN DEALINGS OF PARTNERS WITH THE PARTNERSHIP.
-------------------------------------------------
(a) In addition to those agreements which are the subject of Section 1.9,
the Managing General Partner is expressly authorized in the name of and on
behalf of the Partnership to enter into contracts with or pay fees to any
Partner or any person or entity which is owned or controlled by any Partner
("Affiliate") upon satisfaction of subsection (b) hereof.
(b) The charges or compensation to be paid pursuant to any agreement
between the Partnership and any Partner (or any Affiliate) for the provision of
materials or services may not exceed the fair market value of, or the range of
compensation customarily charged in arms-length transactions by others or by the
Partners or any Affiliates to third parties as an on-going activity for, the
materials provided or the services rendered.
SECTION 4.4 - ADDITIONAL DUTIES AND OBLIGATIONS OF PARTNERS.
(a) The Managing General Partner shall direct the affairs of the
Partnership prudently and in the best interest of the Partnership, including the
safekeeping and use of all Partnership funds and assets and the use thereof for
the benefit of the Partnership.
8
(b) The Managing General Partner shall take all actions which may be
necessary or appropriate for the continuation of the Partnership's valid
existence as a general partnership under the Partnership Act and the laws of the
State of Delaware.
(c) The Managing General Partner shall prepare and file any documents which
are required by law to be filed and/or recorded under the laws of the State of
Delaware or any other jurisdiction in which the Partnership is or may become
qualified to transact business.
(d) The Managing General Partner shall use its best efforts to meet all
current and future Federal income tax requirements to assure that the
Partnership will not fail to be classified for Federal income tax purposes as a
"partnership" rather than as "an association taxable as a corporation."
SECTION 4.5 - INDEMNIFICATION.
(a) The Partnership shall defend, indemnify and hold the Partners
(including the Managing General Partner) harmless from and against any loss,
expense, damage or injury suffered or sustained by reason of any acts, omissions
or alleged acts or omissions arising out of its or their activities on or
believed by such Partner to be on behalf of the Partnership or in or believed by
such Partner to be in furtherance of the interest of the Partnership including
but not limited to any judgment, award, settlement, reasonable attorney's fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim if the acts, omissions or
alleged acts or omissions upon which such actual or threatened actions,
proceedings or claims are based were not performed or omitted fraudulently or in
bad faith by the Partner. Any such indemnification shall only be from the assets
of the Partnership (and may include advances of amounts contemplated by this
Section if approved by the Managing General Partner (even if it itself makes the
claim proposed to be indemnified).
(b) Any and all indemnity obligations with respect to any Partner shall
survive any termination of the Partnership.
SECTION 4.6 - LIABILITY OF PARTNERS; STANDARD OF CARE.
(a) The Partners (including the Managing General Partner) shall not be
liable, responsible or accountable in damages or otherwise to the Partnership or
any Partner for any action taken or failure to act on behalf of the Partnership
within the scope of the authority conferred on the Partners by this Agreement or
by law unless such action or omission was performed or omitted fraudulently or
in bad faith.
(b) The Managing General Partner shall serve without bond.
9
ARTICLE V
MEETINGS AND VOTING
SECTION 5.1 - MEETINGS OF THE PARTNERSHIP.
(a) The Managing General Partner shall schedule a meeting of the Partners
for purposes of reviewing Partnership operations and results not less frequently
than annually.
(b) The Managing General Partner may, at any time, upon three (3) days'
prior written notice call a meeting of the Partners of the Partnership for
informational purposes or for the purpose of taking any action requiring the
consent or approval of the Partners under this Agreement.
(c) All meetings of the Partnership shall be held at reasonable times at
the Partnership's principal office(s) or such other place as may be reasonably
requested by the Managing General Partner.
SECTION 5.2 - VOTING.
For purposes of managing the Partnership or any provision of this Agreement
or the Partnership Act requiring the vote or consent of the Partners, such
management, vote or consent shall be effected and determined by weighting the
vote or consent of each Partner in proportion to the Partners' respective
Percentage Interests in the Partnership. In general and except to the extent
this Agreement or the Partnership Act shall impose a higher percentage standard,
any vote shall be considered carried or given and sufficient consents shall be
considered to have been obtained if Partners holding a simple majority of the
Percentage Interests in the Partnership (counted as provided in the preceding
sentence) shall have voted favorably or consented.
ARTICLE VI
BOOKS OF ACCOUNT, RECORDS AND REPORTS; FISCAL MATTERS
SECTION 6.1 - ACCOUNTING.
Proper and complete records and books of account shall be kept by the
Managing General Partner in which shall be entered fully and accurately all
transactions and other matters relative to the Partnership's business as are
usually entered into records and books of account maintained by persons engaged
in businesses of like character. The Partnership books and records shall be
maintained on an accrual basis and, except as the Code may require to the
contrary, shall be prepared in accordance with generally
10
accepted accounting principles consistently applied. The Partnership's books and
records shall at all times be maintained at the principal office of the
Partnership and shall be open to the inspection and examination of the Partners
or their duly authorized representatives.
SECTION 6.2 - REPORTS.
(a) As soon as practicable, but not later than two hundred forty (240) days
after the end of each fiscal year, the Managing General Partner shall send to
each person who was a holder of a Partnership interest in the Partnership at any
time during the fiscal year then ended: (i) a balance sheet as of the end of the
such fiscal year and statements of income, Partners' equity and changes in
financial position for such fiscal year, all of which shall be prepared in
accordance with Section 5.1; (ii) a cash flow statement; (iii) a report
summarizing the fees, distributions and other remuneration or compensation paid
by the Partnership for such fiscal year to any Partners; (iv) a report of the
activities of the Partnership during such fiscal year; and (v) a statement
showing all distributions to holders of Partnership interests of the Partnership
in respect of such year.
(b) All such annual statements shall be audited (unless the Managing
General Partner shall direct to the contrary) by a certified public accounting
firm on the basis of such firm's annual audit of the Partnership. The firm shall
be appointed by the Managing General Partner.
SECTION 6.3 - ADDITIONAL REPORTS.
The Partnership shall provide to each Partner such additional reports as
the Partners deem to be helpful or appropriate or as a particular Partner may
reasonably request.
SECTION 6.4 - FISCAL YEAR.
The fiscal year of the Partnership shall coincide with the fiscal year of
Dura, which shall be the 52/53 week year ending on the Sunday closest to
December 31 unless the Partnership shall be required to operate on a different
fiscal year to conform with the requirements of Code Section 706 and the
Regulations thereunder.
SECTION 6.5 - FURTHER INVESTIGATIONS.
Each of the Partners shall have the right at its own risk and expense to
examine and inspect at any reasonable time, any properties, records or
operations of the Partnership, and such examination and inspection may be
conducted by its own employees and/or by its own counsel, independent certified
public accountants, or other representatives; provided, however, that such
examination or inspection shall not unreasonably interfere with the operations
of the Partnership.
11
SECTION 6.6 - PARTNERSHIP FUNDS.
The funds of the Partnership shall be deposited in such bank or financial
institution account or accounts or certificates of deposit which are selected by
the Managing General Partner. All withdrawals from any such accounts shall be
made by the Managing General Partner or a duly authorized agent. Partnership
funds shall not in general be commingled with those of any other person,
provided, however, that the Managing General Partner shall be permitted to (and
the other Partner specifically agrees that irrespective of any requirement of
this Section or fiduciary duty imposed on the Managing General Partner it may)
sweep cash balances and similar current funds of the Partnership into one or
more accounts owned or controlled by the Managing General Partner which accounts
may include funds of the Managing General Partner and one or more affiliates
thereof for cash management and similar commercial purposes, subject only to the
Managing General Partner's duty to keep appropriate books and records indicating
the amounts in any such commingled accounts which are attributable to the
Partnership.
ARTICLE VII
TAX MATTERS
SECTION 7.1 - TAX MATTERS PARTNER.
Pursuant to Code Section 6231(a)(7) or any subsequent similar provision,
Dura is hereby designated as the Tax Matters Partner, and shall assume and be
responsible for duties provided in the Code and this Agreement.
SECTION 7.2 - TAX INFORMATION.
As soon as practicable but not later than two hundred forty (240) days
after the end of each fiscal year, the Tax Matters Partner shall send to each
Partner a copy of the Partnership's annual Federal income tax return, a Form K-1
and such other tax information as shall be appropriate for the preparation by
such Partner of Federal, Delaware, and other state or local income or other tax
returns.
SECTION 7.3 - RETURNS.
The Tax Matters Partner shall cause to be prepared and filed on or before
the due date (or any extension thereof) Federal, Delaware (to the extent
required), and other state or local tax or information returns required to be
filed by the Partnership. The Tax Matters Partner, to the extent that
Partnership funds are available, shall cause the Partnership to pay any taxes
payable by the Partnership provided that the Tax Matters Partner shall not be
required to cause the Partnership to pay any tax so long as the Tax Matters
Partner of the Partnership is in good faith and by appropriate administrative or
legal proceedings
12
contesting the validity, applicability or amount thereof and such contest does
not materially endanger any right or interest of the Partnership.
SECTION 7.4 - ELECTIONS.
To the extent that the Partnership may be or is required to make elections
for Federal, Delaware, and other state or local income or other tax purposes,
and to the extent that Partners may be or are required to make such elections
concerning the Property or the business of the Partnership, such elections shall
be made by the Managing General Partner in its sole discretion.
SECTION 7.5 - CONSISTENCY OF TAX TREATMENT.
No Partner shall treat a Partnership item on its Federal, Delaware or other
state or local income or other tax returns or permit an Affiliate to treat a
Partnership item on such Affiliate's tax returns in a manner inconsistent with
the treatment of such Partnership item on the Partnership's Federal, Delaware,
or other state or local tax returns.
SECTION 7.6 - TAX COORDINATORS.
(a) The Tax Matters Partner shall keep the other Partners informed of all
administrative and judicial proceedings for the adjustment at the Partnership
level of Partnership items and shall make available to the other Partners copies
of any notices or communications received from the Internal Revenue Service, the
United States Departments of Treasury or Justice, or with Delaware or other
state or local tax authorities.
(b) The other Partner shall promptly provide to the Tax Matters Partner
copies of all correspondence to or from, or summaries of any other
communications with, the Internal Revenue Service or the United States
Departments of Treasury or Justice or with Delaware or other state or local tax
authorities any tax matter or issue or any Partnership and Partnership tax
items.
(c) No Partner, other than the Tax Matters Partner, shall enter into
settlement negotiations with the Internal Revenue Service or the United States
Departments of the Treasury or Justice or with Delaware or other state or local
tax authorities with respect to the Federal income tax treatment of Partnership
items. The Tax Matters Partner shall be responsible for all such negotiations.
Further, no Partner other than the Tax Matters Partner shall file: (1) a request
for an administrative adjustment of Partnership items under Code Section
6227(a); (2) a petition for readjustment of Partnership items under Code Section
6226(b) or (3) civil action for refund under Code Section 6228(b) (2) without
first giving reasonable advance written notice of such intended action
(including the proposed treatment of the Partnership item(s) and the proposed
court, if applicable) to the Tax Matters Partner.
13
SECTION 7.7 - TAXES ON THE PARTNERSHIP.
To the extent any taxes (including the Michigan Single Business Tax) are
imposed on the Partnership, rather than the Partners, such amounts shall be
treated in all respects as expenses of the Partnership.
SECTION 7.8 - SURVIVAL OF TAX OBLIGATIONS.
The provisions of this Article regarding tax matters shall survive the
termination of the Partnership Agreement and/or the termination or transfer of
any Partner's interest under the Partnership Agreement and shall remain binding
on any terminating or transferring Partner for a period of time necessary to
resolve with the Internal Revenue Service, the United States Department of
Treasury or Justice, and/or any Delaware or other state or local tax authority
any and all matters regarding the Federal, Delaware or other state or local
income or other matters relative to the taxation of the Partnership and present
or previous Partners.
ARTICLE VIII
ADMISSION OF ADDITIONAL MEMBERS; REMOVAL AND
WITHDRAWAL OF MEMBERS; TRANSFERS OF INTEREST
SECTION 8.1- ADMISSION OF NEW PARTNERS.
Additional Partners may be admitted to the Partnership with the
approval of the Managing General Partner with such admission to be effective
upon the date or other conditions set by the Managing General Partner. Subject
to such approval, additional Partners may be admitted to the Partnership in
connection with the making of a capital contribution to the Partnership or
pursuant to a transfer of all or part of a Partner's interest. If a capital
contribution is made or required in connection with any such admission, the
capital contribution and the interest of the additional Partner shall be as
determined by the Managing General Partner (and the interests of all other
Partners shall be adjusted to reflect the interests(s) granted to the additional
Partner, pro rata based on relative interests immediately prior to the admission
of the additional Partner. Any additional Partner shall execute a counterpart of
this Agreement and shall agree thereby to be bound by all of the terms and
provisions hereof.
SECTION 8.2 - REMOVAL, WITHDRAWAL, TRANSFER OF INTERESTS.
(a) A Partner may not be removed as a Partner of the Partnership.
14
(b) A Partner may not voluntarily withdraw from the Partnership without the
written consent of the other Managing General Partner.
(c) A Partner may not, directly or indirectly, transfer or assign any
interest in the Partnership or under this Agreement without the consent of the
Managing General Partner.
ARTICLE IX
DISSOLUTION OF THE PARTNERSHIP
SECTION 9.1 - DISSOLUTION.
(a) The Partnership shall be dissolved upon the earliest to occur of: (i)
the expiration of the term specified in Section 1.6; (ii) the withdrawal or
Bankruptcy of any Partner (unless continued pursuant to subsection (c); (iii)
the giving of written consent of all Partners; (iv) the entering of any decree
by a court which results in the inability of the Partners or Partnership to meet
the Partnership's obligations (unless such decree is being duly appealed); or
(v) the sale of the Property or substantially all of the assets of the
Partnership. Upon any such termination, the Managing General Partner (or the
remaining Partner if there shall then be no Managing General Partner) shall
proceed with the winding up of the Partnership and its assets shall be applied
and distributed as herein provided.
(b) For purposes of this Agreement, the "Bankruptcy" of a Partner shall be
deemed to have occurred sixty (60) days after the happening of any of the
following: (i) the filing of an application by a Partner for, or a consent to
the appointment of a trustee of, its assets; (ii) statutory bankruptcy or the
filing of a pleading in any court of record admitting in writing its inability
to pay its debts as they come due; (iii) the making by a Partner of a general
assignment for the benefit of creditors; (iv) the filing by a Partner of an
answer admitting the material allegations of, or its consenting to, or
defaulting in answering a bankruptcy petition filed against it in any bankruptcy
proceeding; or (v) the entry of an order, judgment or decree by any court of
competent jurisdiction adjudicating a Partner a bankrupt or appointing a trustee
of its assets, and such order, judgment or decree continuing unstayed and in
effect for such period of sixty (60) days.
(c) If any Partner shall withdraw or experience Bankruptcy, the Partnership
shall not dissolve, if, within ninety (90) days after such withdrawal or
adjudication, the remaining Partner(s) agrees in writing to continue the
business of the Partnership and (if then required for such continuation) to the
admission of one (or more) additional Partners. In such event, the Partnership
interest of any Partner who shall have been withdrawn or adjudicated bankrupt
shall become that of the new Partner(s), in the same percentage as
15
such withdrawn or bankrupt Partner and the holder of such Partnership interest
shall be admitted to the Partnership as a Partner.
SECTION 9.2 - PAYMENT OF DEBTS; DISTRIBUTIONS.
(a) Upon the winding up of the Partnership, the Managing General Partner
shall proceed to the orderly liquidation of the assets and termination of the
Partnership, and the proceeds of such sale or disposition, together with other
available proceeds shall be applied and distributed in the following order of
priority: (i) to the expenses of liquidation; (ii) to the payment or provision
for payments of all debts and liabilities of the Partnership, including any
Partner Loans made to the Partnership by the Partners; and (iii) to the
establishment of any reserves which the Managing General Partner deems
reasonable or necessary to provide for any contingent or unforeseen liabilities
or obligations of the Partnership or the Partners arising out of or in
connection with the Partnership.
(b) After the payments described in subsection (a), the amount of
liquidating proceeds distributable shall next be determined in accordance with
the following subsections:
(i) a tentative balance for each Partner's Capital Account shall be
determined, taking into account the profits and losses of the Partnership for
its final period (including expenses of liquidation) and profits and losses from
the sale or disposition of the Property and other Partnership items allocated to
each Partner pursuant to Article III.
(ii) any Partner with a deficit in such Partner's Capital Account
following the tentative determination of the Capital Account balances as
provided in subsection (i) shall make a further cash contribution to the
Partnership to restore the amount of such deficit to the Partnership; and any
such further cash contribution shall be made as soon as practicable but in no
event later than: (A) the end of the Partnership taxable year during which the
liquidation occurs, or (B) ninety (90) days after the date of liquidation.
(iii) any additional capital contributions made pursuant to subsection
(ii), shall be available first to discharge the obligations of the Partnership
described in subsection (a) of this section and thereafter such contributions
together with any remaining proceeds determined pursuant to subsection (a) shall
be the total proceeds available for distribution to the Partners in accordance
with subsection (c) of this section. Any such further discharge or distribution
shall be made by the later of: (A) the end of the Partnership taxable year
during which the liquidation occurs or, (B) ninety (90) days after the date of
liquidation.
(c) The total proceeds distributable in liquidation as determined after the
payments and/or establishment of reserves required under subsection (a)
increased by
16
any Partner payments received or to be received pursuant to subsection (b) shall
be distributed to and among the Partners in accordance with their Percentage
Interests until such balances are exhausted.
SECTION 9.3 - RESERVE.
After the expiration of such period of time as the Partners may deem
advisable, the balance of any reserve, established pursuant to the authority in
Section 9.2(a) remaining after payment of such contingencies shall be
distributed in the manner set forth in Section 9.2. Any such reserve may, in the
discretion of the Partners, be paid over to a national banking or other
financial institution with trust authority as escrow agent, to be held by it for
the discharge of the liabilities of the Partnership. Any such amounts, when and
if subsequently distributable to the Partners, shall be distributed in
accordance with Section 9.2.
SECTION 9.4 - FINAL ACCOUNTING.
Each of the Partners shall be furnished with a statement, which shall set
forth the assets and liabilities of the Partnership as of the date of the
complete liquidation. Upon the compliance by the Partners with the distribution
plan set forth in Sections 9.2 and 9.3, the Partnership shall cease to be and
the remaining Partner(s) shall execute and cause to be filed a Statement of
Dissolution with the Delaware Secretary of State.
ARTICLE X
REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS
SECTION 10.1 - CAPACITY AND AUTHORITY.
The Partners each represent and warrant that: (i) the purchase or
acquisition of a Partnership Interest and entering into this Agreement has been
duly authorized in accordance with its respective governing instruments or
otherwise and (ii) the consummation of the transactions contemplated by this
Agreement will not result in a breach or a violation of, or a default under,
their charter, bylaws, and/or any agreement by which they or any of their
properties is bound or any statute, regulation, order or any other law to which
they are subject.
SECTION 10.2 - REGISTRATION.
(a) Each Partner hereby acknowledges and represents: That the acquired
interests in the Partnership have not been registered under the Securities Act
of 1933, as
17
amended, or under the securities laws of Delaware or any state in reliance upon
applicable exemptions under said laws; and,
(b) Notwithstanding any provisions contained in this Agreement, that no
Partnership interest may be offered or sold and no transfer of such interest
will be made either by the Partnership or the Partners unless:
(i) Such interest is registered under the Securities Act of 1933 and/or
any applicable state securities laws; or
(ii) An opinion of counsel for the Partnership is obtained to the
effect that such registration is not necessary.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 - AMENDMENTS.
(a) This Agreement may be amended by the Managing General Partner without
the approval of any Partner if such amendment does not materially adversely
affect the rights or obligations of the Partners.
(b) This Agreement may further be amended by the Managing General Partner
without the approval of any Partner if such amendment is, in the opinion of
counsel for the Partnership, necessary or appropriate to satisfy: requirements
of the Code or Treasury Regulations; requirements of any Federal or state
securities laws or regulations; or the requirements of any Lender. Any
amendments made pursuant to this subsection may be made effective as of the date
of this Agreement, unless the Managing General Partner shall provide otherwise.
(c) Partners shall be provided notice pursuant to Section 11.3 of the
substance of any amendment to the Agreement, and upon request shall be furnished
a copy thereof.
(d) Except as provided in subsections (a) and (b) above, this Agreement may
be amended only by a written amendment approved and executed by each Partner.
18
SECTION 11.2 - GOVERNING LAW.
The formation and operation of the Partnership and this Agreement shall be
governed by and construed in accordance with the laws of Delaware with respect
to partnerships and without regard to the provisions thereof with respect to
conflicts of law.
SECTION 11.3 - NOTICES.
(a) Any notice, request, consent, offer or demand required or permitted to
be given under this Partnership Agreement shall be in writing and shall either
be delivered in person or mailed by registered or certified first class mail,
postage prepaid, or sent by telex, telecopy or telegram, addressed to the party
intended as the recipient as follows unless a Partner shall have requested the
Partnership in writing at least five (5) days before the date of a notice to use
a different address:
If to the Partnership:
2791 Research Drive
Rochester Hills, MI 48309
Attn: Treasurer
With a copy to:
J. Bryan Williams, Esq.
Dickinson Wright PLLC
38525 Woodward, Suite 2000
Bloomfield Hills, MI 48304
If to Dura or Atwood:
2791 Research Drive
Rochester Hills, MI 48309
Attn: Treasurer
With a copy to:
J. Bryan Williams, Esq.
Dickinson Wright PLLC
38525 Woodward, Suite 2000
Bloomfield Hills, MI 48304
(b) Any such notice, request, consent, offer or demand shall be deemed
received, given or served, if mailed by first class mail, on the third (3rd) day
after the day
19
of mailing, and, if sent by telex, telecopy or telegram, twenty-four (24) hours
after the time of dispatch, provided customary confirmation of delivery or
receipt has been received.
SECTION 11.4 - COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which shall constitute one Agreement, and
the signature of any party to any counterpart shall be deemed to be a signature
to, and may be appended to, any other counterpart.
SECTION 11.5 - AGREEMENT FOR FUTURE EXECUTION.
At any time or times upon the request of the Managing General Partner, the
other Partner agrees to sign, swear to or acknowledge any certificate required
by the Partnership Act, to sign, swear to, or acknowledge any amendment or
cancellation as required by law, to sign, swear to or acknowledge similar
certificates or affidavits or certificates of fictitious firm name, trade name
or the like (and by any amendments or cancellations thereof) required by the
laws of Delaware or any other jurisdiction in which the Partnership does, or
proposes to do, business, and cause the filing of any of the same for record
wherever such filing shall be required by law.
SECTION 11.6 - ENTIRE AGREEMENT.
This Agreement (including the Exhibits hereto and certain related
agreements referred to herein including specifically those set forth on EXHIBIT
C and the Ancillary Agreements (as hereinafter defined)) constitutes the entire
understanding between the parties. There are no representations, agreements,
arrangements or understandings, oral or written, between or among the parties
hereto relating to the subject matter of this Agreement which are not fully
expressed herein; however, the parties acknowledge the following ancillary
agreements ("Ancillary Agreements") being entered into simultaneously with this
Agreement: (a) the Asset Transfer Agreement; (b) the Assignment and Assumption
Agreement; and (c) such other agreements as the Managing General Partner
considers necessary or appropriate in order to effectuate the formation of the
Partnership and the contribution of property to it.
SECTION 11.7 - SEVERABILITY.
This Agreement is intended to be performed in accordance with, and only to
the extent permitted by, all applicable laws, ordinances, rules and regulations
of the jurisdictions in which the Partnership does business. If any provision of
this Agreement or the application thereto to any person or circumstance shall,
for any reason and to any extent, be invalid or unenforceable, the remainder of
the Agreement and the application of such provision to any other person or
circumstances shall not be affected thereby, but rather shall be enforced to the
greatest extent permitted by law.
20
SECTION 11.8 - CAPTIONS.
Any Section titles or captions contained in this Agreement are for
convenience only and shall not be deemed part of the context of this Agreement.
SECTION 11.9 - NUMBER AND GENDER.
All of the terms and words used in this Agreement regardless of the number
and gender in which they are used, shall be deemed and construed to include any
other number singular or plural, and any other gender, masculine, feminine or
neuter, as the context or sense of this Agreement or any paragraph or clause
herein may require, the same as if such work had been fully and properly written
in such number and gender.
SECTION 11.10 - HOLIDAYS.
In the event that the date on which any act or performance required or
permitted hereunder shall be a Saturday, Sunday or other day on which banking
institutions in the State of Delaware are authorized to remain closed, such act
or performance may be taken or made on the next succeeding business day.
21
IN WITNESS WHEREOF, the undersigned corporations, by their duly authorized
officers, have each caused this Agreement to be executed all as of the day first
written above.
PARTNER:
DURA OPERATING CORP.
By: /s/ David R. Bovee
----------------------------------------
David R. Bovee
Its: Vice President, Chief Financial
Officer and Assistant Secretary
PARTNER:
ATWOOD AUTOMOTIVE INC.
By: /s/ David R. Bovee
----------------------------------------
David R. Bovee
Its: President, Chief Financial Officer
and Treasurer
EXHIBIT A
TABLE OF DEFINED TERMS
TERM LOCATION
- ---- --------
Additional Contributions Section 2.3
Affiliate Section 4.3(a)
Agreement Preamble
Ancillary Agreements Section 11.6
Atwood Preamble
Bankruptcy Section 9.1(b)
Capital Account Section 2.4
Closing Date Section 2.1(a)
Code Section 2.4
Dura Preamble
Managing General Partner Section 4.2(d)
Partner(s) Preamble
Partner Loan(s) Section 2.8(a)
Partnership Recitals
Partnership Act Section 1.1
Percentage Interest Section 3.2(a)
Property Section 1.4(a)
Tax Matters Partner Section 7.1
EXHIBIT B
NAMES, ADDRESSES AND INTERESTS OF PARTNERS
PARTNER NAME PARTNER ADDRESS PERCENTAGE INTEREST
- ------------ --------------- -------------------
Dura Operating Corporation 2791 Research Drive 99.9%
Rochester Hills, MI 48309
Atwood Automotive, Inc. 2791 Research Drive 0.1%
Rochester Hills, MI 48309
------
TOTAL 100.0%
EXHIBIT C
LIST OF RATIFIED OBLIGATIONS AND AGREEMENTS
1. All agreements which are the subject of that Assumption and Assignment
Agreement between the Partnership and Dura dated as of December 30, 2001.
2. A lease agreement between the Partnership and Dura dated as of December 30,
2001 pursuant to which the Partnership will lease to Dura the assets of the
Partnership located in Gladwin, Michigan.
EXHIBIT D
CAPITAL CONTRIBUTIONS
1. Capital contribution of cash pursuant to Sections 2.1(a) and 2.2 in the
amount of:
Partner Amount
------- ------
Dura $31,000.00
Atwood $97,732.00
2. Non-cash capital contribution by Dura pursuant to Section 2.1(a) of (a) all
real property, improvements thereon, machinery and equipment related to the
expansion of the facility located at 1016 East Weber, Gladwin, Michigan and (b)
all real property, improvements thereon, machinery, equipment, accounts
receivable, accounts payable, contracts, inventory and other assets related to
the following locations, as set forth in more detail in the Asset Transfer
Agreement referenced in Section 11.6 of the Agreement:
Plant Address
----- -------
Pikeville 132 Ferro Road, P.O. Box 669, Pikeville, TN 37367
Lawrenceburg 2200 Helton Drive, P.O. Box 746, Lawrenceburg, TN 38464
Fulton 800 N. College St., P.O. Box 1440, Fulton, KY 42041
Hannibal North 2011 Highway 61 South, Hannibal, MO 63401
Hannibal South #5 Industrial Drive, Hannibal, MO 63401
Brookfield 445 East Helm, Brookfield, MO 64628
Gordonsville 114 Spicer Dr., Gordonsville, TN 38563
Stockton 301 S. Simmons St., Stockton, IL 61085
Mt. Carroll 905 South Jackson, Mount Carroll, IL 61053