<Page>
Exhibit 3.100
STATE OF MAINE
[LOGO]
DEPARTMENT OF THE SECRETARY OF STATE
I, THE SECRETARY OF STATE OF MAINE, CERTIFY that according to the
provisions of the Constitution and Laws of the State of Maine, the Department of
the Secretary of State is the legal custodian of the Great Seal of the State of
Maine which is hereunto affixed and that the paper to which this is attached is
a true copy from the records of this Department.
IN TESTIMONY WHEREOF, I have caused the
Great Seal of the State of Maine to be
hereunto affixed. Given under my hand at
Augusta Maine, June 17, 2002.
/s/ Dan Gwadosky
----------------------------------------
DAN GWADOSKY
SECRETARY OF STATE
[SEAL]
<Page>
MAINE
SECRETARY OF STATE
FILED
File No. 860013LP May 20 1986
Fee Paid $ 25.00
C.B. --- /s/ [ILLEGIBLE]
Date 5-20-86 ------------------
73 Secretary of State
AGENT
------------------------------------
FIRST AMENDED AND RESTATED
AGREEMENT AND CERTIFICATE OF
LIMITED PARTNERSHIP
OF
PERC MANAGEMENT COMPANY
------------------------------------
Dated as of May 14, 1986
<Page>
TABLE OF CONTENTS
<Table>
<Caption>
ARTICLE Title Page
- ------- ----- ----
Preliminary Statement................................................ 1
1. DEFINITIONS.......................................................... 2
1.1 Affiliate............................................................ 2
1.2 Associate............................................................ 2
1.3 Bankruptcy........................................................... 2
1.4 Capital Account...................................................... 2
1.5 Capital Contributions................................................ 2
1.6 Capital Contribution Account......................................... 3
1.7 Code................................................................. 3
1.8 Completion Date...................................................... 3
1.9 Consent.............................................................. 3
1.10 Credit Agreement......................................................3
1.11 Development Fee...................................................... 3
1.12 Disposition.......................................................... 3
1.13 Dissolution Event.................................................... 3
1.14 Fiscal Year.......................................................... 3
1.15 GAAP................................................................. 4
1.16 General Partner...................................................... 4
1.17 Independent Accountant............................................... 4
1.18 In-Service Date...................................................... 4
1.19 Limited Partner...................................................... 4
1.20 Liquidator........................................................... 4
1.21 Management Fee....................................................... 4
1.22 Net Cash Flow........................................................ 4
1.23 Net Sale or Refinancing Proceeds..................................... 5
1.24 Partner Loan......................................................... 5
1.25 Partners............................................................. 5
1.26 Partnership.......................................................... 5
1.27 Partnership Act...................................................... 5
1.28 Partnership Capital Contribution Account............................. 6
1.29 PERC................................................................. 6
1.30 PERC Partnership Agreement........................................... 6
1.31 Person............................................................... 6
1.32 Project.............................................................. 6
1.33 Securities Act....................................................... 6
1.34 Service.............................................................. 6
1.35 Subordinated Loan.................................................... 6
1.36 Substitute Limited Partner........................................... 6
1.37 Transfer............................................................. 6
1.38 Transferee........................................................... 6
1.39 Transferor........................................................... 7
</Table>
<Page>
<Table>
<Caption>
ARTICLE Title Page
- ------- ----- ----
1.40 Withdrawing Limited Partner.......................................... 7
2. THE PARTNERSHIP AND ITS BUSINESS..................................... 7
2.1 Continuation......................................................... 7
2.2 Name of Partnership.................................................. 7
2.3 Address of Partnership............................................... 7
2.4 Purpose.............................................................. 7
2.5 Term................................................................. 8
2.6 Place of Business.................................................... 8
2.7 Development Fee...................................................... 8
2.8 Residence of the Partners............................................ 8
3. INVESTMENT OBLIGATIONS............................................... 9
3.1 Initial Capital Contributions........................................ 9
3.2 Partner Loans........................................................ 9
3.3 Additional Capital Contributions.....................................10
3.4 No Interest on Capital...............................................10
3.5 Capital Withdrawals and Returns. ....................................10
3.6 Waiver of Partition and Dissolution Right............................10
3.7 Capital Accounts.....................................................10
3.8 Capital Contribution Account.........................................12
3.9 Partnership Capital Contribution Account.............................12
3.10 Defaulting Limited Partners..........................................12
4. PROFITS AND LOSSES...................................................14
4.1 Allocation of Profits and Losses.....................................14
4.2 Restoration of Negative Capital
Accounts.............................................................14
4.3 Partnership Adjustments..............................................14
4.4 Allocations to Transferred Partnership
Interests............................................................15
5. DISTRIBUTIONS........................................................15
5.1 Net Cash Flow........................................................15
5.2 Net Sale or Refinancing Proceeds.....................................15
5.3 Distributions in Kind................................................15
6. POWERS, RIGHTS AND DUTIES OF
THE GENERAL PARTNER..................................................16
6.1 Management...................,.......................................16
</Table>
2
<Page>
<Table>
<Caption>
ARTICLE Title Page
- ------- ----- ----
6.2 Fiduciary Duties.....................................................18
6.3 Business with Affiliates or
Associates...........................................................18
6.4 Reimbursement........................................................18
6.5 Establishment of Reserves............................................19
6.6 Compensation.........................................................19
6.7 Exclusive Broker.....................................................19
7. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE PARTNERS............................................20
7.1 Representations, Warranties and Covenants
of PI................................................................20
7.2 Representations, Warranties and Covenants
Of CEC...............................................................21
7.3 Representations, Warranties and Covenants
of BSSN..............................................................22
7.4 Representations, Warranties and Covenants
of Power.............................................................23
8. INDEMNIFICATION......................................................24
8.1 Indemnity for Acts and Omissions.....................................25
9. RIGHTS AND OBLIGATIONS OF THE
LIMITED PARTNERS.....................................................25
9.1 No Control by the Limited
Partners.............................................................25
9.2 Limitation on Liability..............................................25
9.3 Power of Attorney....................................................25
10. TRANSFER OF LIMITED PARTNERSHIP
INTERESTS............................................................26
10.1 Prohibited Transfers.................................................26
10.2 Permitted Transfers..................................................26
10.3 Substitute Limited Partner...........................................27
10.4 Involuntary Withdrawal by the Limited
Partner..............................................................28
11. WITHDRAWAL OF THE GENERAL PARTNER....................................29
11.1 Assignment or Withdrawal by the General
Partner..............................................................29
</Table>
3
<Page>
<Table>
<Caption>
ARTICLE Title Page
- ------- ----- ----
11.2 Voluntary Assignment or Withdrawal of
the General Partner..................................................29
11.3 Removal of the General Partner.......................................30
11.4 Successor General Partner............................................30
12. DISSOLUTION AND WINDING UP AFFAIRS...................................31
12.1 Dissolution..........................................................31
12.2 Winding Up...........................................................31
12.3 Distributions Upon Dissolution and
Termination..........................................................32
13. ACCOUNTING AND REPORTS...............................................32
13.1 Books and Records....................................................32
13.2 Reports to Partners..................................................33
13.3 Annual Tax Returns...................................................33
13.4 Actions in Event of Audit............................................34
14. GENERAL PROVISIONS. .................................................35
14.1 Amendments...........................................................35
14.2 Title to Partnership Property........................................35
14.3 Notices..............................................................35
14.4 Governing Law........................................................36
14.5 Headings.............................................................36
14.6 Further and Additional Documents and
Reports..............................................................36
14.7 Counterparts.........................................................36
14.8 Binding on Successors and Assigns....................................36
14.9 Waiver...............................................................36
14.10 Severability.........................................................37
14.11 Attorneys' Fees......................................................37
14.12 Creditors............................................................37
14.13 Remedies.............................................................37
14.14 Arbitration..........................................................38
14.15 Payments on Nonbusiness Days.........................................38
14.16 Schedules and Exhibits...............................................38
14.17 Number and Gender ...................................................39
14.18 Termination of Letter Agreements.....................................39
</Table>
4
<Page>
EXHIBITS
A. Letter Agreement dated August 22, 1985 between Kuhr Technologies, Inc. and
Ralph E. Leonard
B. Letter Agreement dated December 3, 1985 among Bernstein, Shur, Sawyer and
Nelson, Kuhr Technologies, Inc. and Penobscot Energy Recovery Company
C. Letter Agreement dated June 18, 1985 between Jeffrey R. Power and Kuhr
Technologies, Inc.
5
<Page>
NOTICE
THESE SECURITIES ARE BEING SOLD PURSUANT TO AN EXEMPTION FROM REGISTRATION WITH
THE BANK SUPERINTENDENT OF THE STATE OF MAINE UNDER SECTION 10502(2)(R) OF TITLE
32 OF THE MAINE REVISED STATUTES. THESE SECURITIES MAY BE DEEMED RESTRICTED
SECURITIES AND AS SUCH THE HOLDER MAY NOT BE ABLE TO RESELL THE SECURITIES
UNLESS PURSUANT TO REGISTRATION UNDER STATE OR FEDERAL SECURITIES LAWS OR UNLESS
AN EXEMPTION UNDER SUCH LAWS EXISTS.
<Page>
FIRST AMENDED AND RESTATED
AGREEMENT AND CERTIFICATE OF
LIMITED PARTNERSHIP
OF
PERC MANAGEMENT COMPANY
This FIRST AMENDED AND RESTATED AGREEMENT AND CERTIFICATE OF
LIMITED PARTNERSHIP, dated as of the 14th day of May, 1986, is entered into
by and among PERC, INC., a Maine corporation ("PI"); CENTRAL ENERGY COMPANY,
a Maine general partnership ("CEC"); BERNSTEIN, SHUR, SAWYER AND NELSON, P.A.,
a Maine professional corporation ("BSSN"); JEFFREY R. POWER, a Massachusetts
resident ("POWER"); and KUHR TECHNOLOGIES, INC., a New Jersey corporation
("KTI").
PRELIMINARY STATEMENT
PI is, on the date hereof, the sole general partner of PERC Management
Company, an existing limited partnership formed under the Uniform Limited
Partnership Act of the State of Maine pursuant to an Agreement and Certificate
of Limited Partnership dated August 13, 1985, which was filed in the Office of
the Secretary of the State of Maine on August 15, 1985 (the "Partnership"), and
KTI is, on the date hereof, the sole limited partner of the Partnership. PI,
CEC, BSSN, POWER and KTI now desire to maintain PI as the sole general partner
of the Partnership, to admit CEC, BSSN and POWER as limited partners of the
Partnership, to effect the withdrawal of KTI from the Partnership, to continue
the existence of the Partnership, to amend and restate in its entirety the
Partnership's limited partnership certificate, and to enter into this Agreement
on the terms and conditions set forth below. PI, in its capacity as general
partner of the Partnership, is sometimes hereinafter referred to as the "General
Partner." CEC, BSSN and POWER, in their capacities as limited partners of the
Partnership, are sometimes hereinafter referred to individually as a "Limited
Partner" and collectively as the "Limited Partners." KTI is sometimes
hereinafter referred to as the "Withdrawing Limited Partner." The General
Partner and the Limited Partners are sometimes hereinafter referred to
individually as a "Partner" and collectively as the "Partners."
<Page>
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
1.1 AFFILIATE. "Affiliate", means an "affiliate," as defined in Rule
405 under the Securities Act.
1.2 ASSOCIATE. "Associate" means an "associate," as defined in Rule
405 under the Securities Act.
1.3 BANKRUPTCY. "Bankruptcy," with respect to the Partnership or a
Partner thereof, means (a) an adjudication that such Partner or Partnership is
bankrupt or insolvent, or the entry of an order for relief under the Federal
Bankruptcy Code, (b) the making by it of an assignment for the benefit of
creditors, (c) the filing by it of a petition in bankruptcy or a petition for
relief under any section of the Federal Bankruptcy Code or any other applicable
bankruptcy or insolvency statute or an answer admitting or failing to deny the
allegations of any such petition, (d) the filing against it of any such petition
(unless such petition is dismissed within 60 days from the date of filing
thereof), or (e) the appointment of a trustee, conservator or receiver for all
or a substantial part of its assets (unless, such appointment is vacated or
stayed within 60 days from its effective date).
1.4 CAPITAL ACCOUNT. "Capital Account" is the account maintained by
the Partnership for each Partner pursuant to Section 3.7.
1.5 CAPITAL CONTRIBUTIONS. "Capital Contributions" means
contributions to be made to the capital of the Partnership by the Partners
pursuant to Section 3.1 of this Agreement.
2
<Page>
1.6 CAPITAL CONTRIBUTION ACCOUNT. "Capital Contribution Account"
means the account maintained by the Partnership for each Partner pursuant to
Section 3.08.
1.7 CODE. "Code" means the United States Internal Revenue Code of
1954, as amended, and the regulations promulgated thereunder.
1.8 COMPLETION DATE. "Completion Date" means the Completion Date as
defined in the Credit Agreement.
1.9 CONSENT. "Consent" means the written consent of a Person.
1.10 CREDIT AGREEMENT. "Credit Agreement" means the $81,120,000
Credit Agreement dated as of May 15, 1986 by and among Penobscot Energy Recovery
Company, the Partnership, Energy National, Inc., and Bankers Trust Company and
certain banks, and Bankers Trust Company, as agent, as such agreement may be
amended from time to time.
1.11 DEVELOPMENT FEE. "Development Fee" means a fee in the aggregate
amount of $3,500,000 that the Partnership shall pay to PI and CEC pursuant to
Section 2.7.
1.12 DISPOSITION. "Disposition" means any sale or exchange (either in
one transaction or a series of transactions) to one or more buyers pursuant to a
plan of disposition formulated by the General Partner, or other disposition
including, but not limited to, an involuntary disposition giving rise to
insurance or other proceeds (except to the extent such proceeds are included in
Net Cash Flow) of a material amount of the Partnership's property outside of the
ordinary course of business.
1.13 DISSOLUTION EVENT. "Dissolution Event" is any of the events set
forth in Section 12.1.
1.14 FISCAL YEAR. "Fiscal Year" means the tax year of the
Partnership, which shall be the calendar year.
3
<Page>
1.15 GAAP. "GAAP" means generally accepted accounting principles in
the United States in effect from time to time.
1.16 GENERAL PARTNER. "General Partner" means PERC, Inc., a Maine
corporation ("PI"), or the General Partners permitted successors or lawful
assigns.
1.17 INDEPENDENT ACCOUNTANT. "Independent Accountant" means Ernst &
Whinney or such other nationally recognized firm of certified public accountants
as the General Partner may select.
1.18 IN-SERVICE DATE. "In-Service Date" means the date on which PERC
places the Project in service within the meaning of the Code.
1.19 LIMITED PARTNER. "Limited Partner" means Central Energy
Corporation, a Maine general partnership ("CEC"), Bernstein, Shur, Sawyer and
Nelson, P.A. a Maine professional corporation ("BSSN"), or Jeffrey R. Power, a
Massachusetts resident ("POWER"), or the Limited Partners' respective permitted
successors or lawful assigns.
1.20 LIQUIDATOR. "Liquidator" means the Person who shall be
responsible for taking all action necessary or appropriate upon the liquidation
of the Partnership to wind up its affairs and distribute its assets pursuant to
Article 12 of this Agreement. The Liquidator shall be the Person determined
pursuant to Section 12.2.
1.21 MANAGEMENT FEE. "Management Fee" means the fee that the
Partnership shall pay to the General Partner pursuant to Section 6.6.
1.22 NET CASH FLOW. "Net Cash Flow" of the Partnership for the
applicable period means (A) the sum of (i) the gross receipts of the
Partnership, including but not limited to all distributions and fees received
from PERC pursuant to the PERC Partnership Agreement, (ii) income from
investments and (iii) the amounts of any reserves available for distribution,
less (B) the sum of (i) all costs and expenses which the Partnership paid,
including, but not limited to, (1) payroll, (2) business taxes and real and
personal property taxes and assessments, and fees and expenses in connection
with the prep-
4
<Page>
aration of the Partnership's tax returns, (3) insurance premiums, (4) all
expenditures required to be made by the General Partner on behalf of the
Partnership, (5) all fees and expenses, including the Development Fee and
Management Fee, (6) capital improvements and the repair, maintenance and
restoration of the improvements (including any portion of the same to the extent
not covered by insurance proceeds), (7) expenditures required to be made under
or in connection with any contract, and (8) without limitation, all other costs
and expenses, including capital expenditures, required to be made by the
Partnership, (ii) all principal and interest paid by the Partnership during such
period and (iii) all contributions to reserve funds, including replenishments of
such funds, during such period.
1.23 NET SALE OR REFINANCING PROCEEDS. "Net Sale or Refinancing
Proceeds" means the net proceeds remaining from any sale or Disposition or
taking of all or part of the Partnership's property (including, without
limitation, eminent domain or condemnation proceeds or proceeds from a Transfer
under a threat of condemnation or eminent domain proceedings, title insurance
proceeds and casualty insurance proceeds) or any financing or refinancing of the
Partnership's property in either case after the payment of all costs and
expenses related thereto, any capital expenditures or expenses for which such
proceeds are to be used, the satisfaction of any mortgage debt and the setting
aside of any reserves as reasonably determined by the General Partner.
1.24 PARTNER LOAN. "Partner Loan" means loans to be made by the
Partners to the Partnership pursuant to Section 3.2.
1.25 PARTNERS. "Partners" means the General Partner and the Limited
Partners, collectively; "Partner" refers to any one of the Partners, or its
permitted successors or assigns.
1.26 PARTNERSHIP. "Partnership" means PERC Management Company, a
Maine limited partnership, which is the subject of this Agreement, as such
partnership may from time to time be constituted.
1.27 PARTNERSHIP ACT. "Partnership Act" is the Maine Uniform Limited
Partnership Act, as it may be amended from time to time.
5
<Page>
1.28 PARTNERSHIP CAPITAL CONTRIBUTION ACCOUNT. "Partnership Capital
Contribution Account" means the account maintained by the Partnership pursuant
to Section 3.09.
1.29 PERC. "PERC" means Penobscot Energy Recovery Company, a Maine
limited Partnership.
1.30 PERC PARTNERSHIP AGREEMENT. "PERC Partnership Agreement" means
the Second Amended and Restated Agreement and Certificate of Limited Partnership
of Penobscot Energy Recovery Company dated as of May 15, 1986 as the same shall
be amended from time to time.
1.31 PERSON. "Person" means any individual, firm, corporation, trust,
partnership or other entity.
1.32 PROJECT. The "Project" means the 25.3 megawatt refuse derived
fuel waste-to-energy facility to be constructed by PERC in the Town of
Orrington, Maine.
1.33 SECURITIES ACT. "Securities Act" means the Securities Act of
1933, as amended, and the regulations promulgated thereunder.
1.34 SERVICE. "Service" means the United States Internal Revenue
Service.
1.35 SUBORDINATED LOAN. "Subordinated Loan" means any loans required
to be made by the Partnership to PERC pursuant to Article 3 of the PERC
Partnership Agreement.
1.36 SUBSTITUTE LIMITED PARTNER. "Substitute Limited Partner" means
a Person who has become a Substitute Limited Partner pursuant to Section 10.3 of
this Agreement.
1.37 TRANSFER. "Transfer" means a sale, transfer, assignment,
hypothecation, or other disposition.
1.38 TRANSFEREE. "Transferee" means a purchaser, transferee, assignee
or pledgee of, or Person who takes an interest by means of hypothecation in, a
Partnership interest.
6
<Page>
1.39 TRANSFEROR. "Transferor" means a seller, assignor or
hypothecator of a Partnership interest.
1.40 WITHDRAWING LIMITED PARTNER. "Withdrawing Limited Partner" is
Kuhr Technologies, Inc., a New Jersey corporation.
ARTICLE 2. THE PARTNERSHIP AND ITS BUSINESS.
2.1 CONTINUATION. The Partners hereby agree to continue themselves
as a limited partnership under the laws of the State of Maine. CEC, BSSN and
POWER shall be, and hereby are, admitted to the Partnership as Limited Partners.
KTI shall, and hereby does, withdraw from the Partnership without consideration.
This First Amended Agreement and Certificate of Limited Partnership and all such
other certificates and documents as may be necessary or desirable to comply with
all requirements for the amendment and operation of a limited partnership
pursuant to the Partnership Act shall be duly filed for record by the General
Partner in the Office of the Secretary of State of the State of Maine. The
General Partner shall make or cause to be made all such further filings,
recording, publishing and other acts as may be necessary or appropriate from
time to time in connection therewith.
2.2 NAME OF PARTNERSHIP. The name of the Partnership shall continue
to be "PERC Management Company."
2.3 ADDRESS OF PARTNERSHIP. The address of the Partnership shall be
PERC Management Company, 411 Hackensack Avenue; Hackensack, New Jersey 07601, or
such other location as determined by the General Partner.
2.4 PURPOSE. The purpose of the Partnership shall be to enter into
the PERC Partnership Agreement to serve as a general partner of a limited
partnership named Penobscot Energy Recovery Company, which was formed under the
laws of the State of Maine to develop and operate a 25.3 megawatt refuse derived
fuel waste-to-energy facility to be located in the Town of Orrington, Maine,
and, in such capacity, to exercise all authority granted to it by agreement or
by law, and to undertake any and all other acts and things necessary, proper,
convenient, or advisable to effectuate and carry out such purpose.
7
<Page>
2.5 TERM. The term of the Partnership shall be from the date hereof
until December 31, 2018, unless the Partnership is sooner dissolved as herein
provided by the General Partner or by operation of law.
2.6 PLACE OF BUSINESS. The principal office and place of business of
the Partnership shall be at Route 15, Orrington, Maine. The Partnership may also
maintain such other offices at such other places as the General Partner may deem
advisable.
2.7 DEVELOPMENT FEE. In consideration of efforts of PI and CEC in
developing the Project, on the date of the closing of the Credit Agreement, the
Partnership shall pay the Development Fee to PI and CEC as follows:
(a) at the closing of the Credit Agreement, PI shall receive
$2,500,000 and CEC shall receive $760,000; and
(b) following the closing of the Credit Agreement and continuing
until the Completion Date, CEC shall receive 100 percent of the development fees
paid by PERC to the Partnership pursuant to Section 2.7 of the PERC Partnership
Agreement.
The Partners acknowledge that the Development Fee is a
guaranteed payment within the meaning of Section 707(c) of the Code and
furthermore is not to be treated as a distribution under Article 5 for any
purpose.
2.8 RESIDENCE OF THE PARTNERS.
General Partner:
PERC, Inc.
9 Lincoln Street
Biddeford, Maine 04005
Limited Partners:
Central Energy Company
101 Bennoch Road
Stillwater, Maine 04489
8
<Page>
Bernstein, Shur, Sawyer and Nelson, P.A.
One Monument Square
Portland, Maine 04101
Jeffrey R. Power
c/o Fechtor, Detwiler & Co.
155 Federal Street
Boston, Massachusetts 02110
ARTICLE 3. INVESTMENT OBLIGATIONS.
3.1 INITIAL CAPITAL CONTRIBUTIONS. On the date of the closing of the
Credit Agreement, the Partners shall make the following Capital Contributions:
(a) the General Partner shall make a $5,971 Capital
Contribution; and
(b) the Limited Partners shall make Capital Contributions as
follows: CEC shall contribute $3,000; BSSN shall contribute $315; and POWER
shall contribute $714.
3.2 PARTNER LOANS.
(a) In the event that the Partnership is required to make any
Subordinated Loan for cost overruns incurred prior to the Completion Date: (i)
the General Partner shall promptly make Partner Loans to the Partnership equal
to 59.7142 percent of the amount of Subordinated Loan; (ii) POWER shall make,
promptly following notice from the General Partner, Partner Loans equal to
7.1429 percent of the Subordinated Loan; and (iii) each of CEC and BSSN may, at
its option and promptly following notice from the General Partner, make Partner
Loans to the Partnership in amounts equal to 30.0000 percent and 3.1429 percent,
respectively, of the Subordinated Loan.
(b) Amounts outstanding on Partner Loans made under this Section
3.2 shall bear interest at the rate equal to the prime rate posted from time to
time by Bankers Trust Company, New York, New York, plus one percent, which shall
be due and payable monthly in arrears to the extent of Net Cash Flow prior to
any distri-
9
<Page>
butions under Article 5, and such interest shall accrue monthly to the extent
not paid when due.
(c) In the event that any Limited Partner (other than POWER)
shall not make a Partner Loan under paragraph (a) above within 10 days after
notice from the General Partner, the General Partner shall make such Partner
Loan and shall have the option to purchase the Partnership interest of such
Limited Partner at a price equal to the aggregate Capital Contributions made by
such Limited Partner under Section 3.1.
3.3 ADDITIONAL CAPITAL CONTRIBUTIONS. Except as provided in this
Article 3 and Section 12.3, Partners shall not be required to make any
additional Capital Contributions or loans to the Partnership without the Consent
of all the Partners.
3.4 NO INTEREST ON CAPITAL. No interest shall be paid to any Partner
on all or a portion of a Capital Contribution or on a balance in its Capital
Account.
3.5 CAPITAL WITHDRAWALS AND RETURNS. Partners shall not have the
right to withdraw or reduce their contributions to the capital of the
Partnership except in accordance with this Agreement. Except as otherwise
provided herein, Partners shall not have the right to demand or receive
property, other than cash, in return for their Capital Contribution or have
priority over another Partner, either as to the return of contribution of
capital or as to profits, losses, or distributions, or as to compensation by way
of income.
3.6 WAIVER OF PARTITION AND DISSOLUTION RIGHT. The Partners hereby
waive and forfeit all rights arising out of statute or operation of law to seek,
bring or maintain in any court an action for partition pertaining to any asset
of the Partnership, or an action seeking dissolution of the Partnership, unless
the General Partner has Consented to such dissolution.
3.7 CAPITAL ACCOUNTS. A Capital Account shall be maintained with
respect to each Partner in accordance with Federal income tax accounting
principles and Treasury Regulation Section 1.704-l(b). Each Capital Account
shall be credited with the amount of the cash contribution to the capital of the
Partnership by such
10
<Page>
Partner, the fair market value of property contributed to the Partnership by
such Partner (net of liabilities assumed with respect to such interest and
liabilities to which such contributed property is subject), the distributive
share of Partnership income and gain (or items thereof) as allocated to such
Partner pursuant to Section 4.1, and the distributive share of income exempt
from tax. Each Capital Account shall be charged for the amount of any loss or
deduction (or items thereof) allocated to such Partner pursuant to Section 4.1,
the amount of all distributions in cash to such Partner pursuant to this
Agreement, the fair market value of property distributed to such Partner (net of
liabilities assumed with respect to such interest and liabilities to which such
distributed property is subject), and the distributive share of expenditures of
the Partnership described in Section 705(a)(2)(B) of the Code (which share shall
be determined in accordance with the allocable interests in the Partnership).
The following rules shall apply in maintaining Capital Accounts with respect to
interests in the Partnership:
(a) For purposes of this Section 3.9, amounts described in
Section 709 of the Code (other than amounts with respect to which an election is
in effect under Section 709(b) of the Code) shall be treated as described in
Section 705(a)(2)(B) of the Code.
(b) If property is distributed by the Partnership, Capital
Accounts shall be adjusted as though such property had been sold on the date of
such distribution for its then fair market value, and any gain or loss on such
sale had been allocated in accordance with Section 4.1.
(c) If property is contributed to the Partnership, Capital
Accounts shall be adjusted in accordance with Treasury Regulation Section
1.7O4-1(b)(2)(iv)(d)(3).
(d) Capital Accounts shall be adjusted, in accordance with
Treasury Regulation Section 1.704-l(b)(2)(iv)(j), to reflect any adjustments to
the basis of Partnership property under Section 48(q) of the Code.
(e) If, in any taxable year, the Partnership has in effect an
election under Section 754 of the Code, Capital Accounts shall be adjusted in
accor-
11
<Page>
dance with Treasury Regulation Section 1.704-l(b)(2)(iv)(m).
3.8 CAPITAL CONTRIBUTION ACCOUNT. A Capital Contribution Account
shall be maintained with respect to each Partner. The Capital Contribution
Account shall be credited with the amount of each Capital Contribution made by
the Partner.
3.9 PARTNERSHIP CAPITAL CONTRIBUTION ACCOUNT. A Partnership Capital
Contribution Account shall be maintained with respect to the Partnership as a
whole. The Partnership Capital Contribution Account shall be credited with the
amount of all Capital Contributions made by the Partners such that the balance
in the Partnership Capital Contribution Account at any time shall reflect the
sum of the balances reflected in the Capital Contribution Accounts.
3.10 DEFAULTING LIMITED PARTNERS.
(a) If a Limited Partner shall fail to make any Capital
Contribution (and, in the case of POWER, a Partner Loan) within 15 days after
notice from the General Partner that the payment is due, the Limited Partner (a
"Defaulting Limited Partner") shall be in default upon the delivery of a notice
of such failure by the General Partner to the Defaulting Limited Partner and
each other Partner. Upon any such default pertaining to a Capital Contribution,
interest on the unpaid balance of the Capital Contribution amount then due and
payable shall accrue at the rate equal to the prime rate posted from time to
time by Bankers Trust Company, New York, New York, plus 2 percent from the date
when such payment was due until the date paid. So long as any default shall be
continuing under this Section 3.10, (i) the General Partner may commence legal
proceedings against the Defaulting Limited Partner to compel the payment of all
amounts due as a Capital Contribution (and, in the case of POWER, a Partner
Loan) and the payment of all costs and expenses of collection incurred by the
Partnership (including reasonable attorney's fees); (ii) the Defaulting Limited
Partner shall not be entitled to receive any allocations under Article 4 or
distributions under Article 5; and (iii) each nondefaulting Limited Partner and
the General Partner (the "Nondefaulting Partners") shall have, in proportion to
the ratio that the balance in its Capital Contribution Account bears to the
aggregate of the bal-
12
<Page>
ances in the Capital Contribution Accounts of all of the Nondefaulting Partners,
the right (but not the obligation) to pay all of such amounts due as a Capital
Contribution. If within 10 days after the issuance of a notice of default under
this Section 3.10, a Capital Contribution is made by fewer than all of the
Nondefaulting Partners as a result of a failure of one or more Nondefaulting
Partners to exercise the right given in clause (iii) of the preceding sentence,
the balance of the Capital Contribution owed by the Defaulting Limited Partner
may be made, in equal proportions, by the Nondefaulting Partners who elected to
make the payments described in clause (iii) of the preceding sentence.
(b) In the event of default pursuant to paragraph (a) above,
all unpaid Capital Contributions of the Defaulting Limited Partner may become
immediately due and payable at the option of the General Partner and the
interest in the Partnership of the Defaulting Limited Partner shall be subject
to Transfer as provided herein without any Consent of the Defaulting Limited
Partner. The General Partner may, subject to the provisions of this paragraph
(b) and upon 10 days written notice to all of the Partners (a "Sale Notice"),
determine that all or any part of the Defaulting Limited Partner's interest
shall be sold for the Partnership's benefit on the best terms reasonably
obtainable. Each Nondefaulting Partner shall have, in proportion to the ratio
that the balance in its Capital Contribution Account bears to the aggregate of
the balances in the Capital Contribution Accounts of all of the Nondefaulting
Partners, the right (but not the obligation), to acquire a share thereof in
addition to any such interest which the other Nondefaulting Partner fails to so
acquire. Any such interest not acquired by a Nondefaulting Partner within 15
days of a Sale Notice may be sold to any Person for the Partnership's benefit on
the best terms reasonably obtainable. The Defaulting Limited Partner shall be
liable for any and all costs of sale of the interest, whether the interest is
actually sold or not. If the interest is sold at a price in excess of the
Defaulting Limited Partner's remaining liabilities and costs, the General
Partner shall remit the excess to the Defaulting Limited Partner. If the
interest is sold at a price less than the Defaulting Limited Partner's remaining
liabilities and costs, the Defaulting Limited Partner shall be immediately
liable for the difference; PROVIDED, HOWEVER, that the Defaulting Limited
Partner's obligations hereunder shall be
13
<Page>
relieved to the extent of payments actually made in the Defaulting Limited
Partner's stead by any purchaser of the Defaulting Limited Partner's interest.
The consideration paid for a Defaulting Limited Partner's interest, less any
excess remitted to the Defaulting Limited Partner, shall be deemed to be a
Capital Contribution of the Person acquiring such Defaulting Limited Partner's
interest.
(c) Any Person acquiring all or any part of the interest of a
Defaulting Limited Partner pursuant to this Section 3.10 shall become a
Substitute Limited Partner upon compliance with the provisions of Section 10.3;
PROVIDED, HOWEVER, that if a Nondefaulting Partner acquires all or any part of
the interest of a Defaulting Limited Partner, such Nondefaulting Partner may
become a Substitute Limited Partner without compliance with the provisions of
Sections 10.3(a) and (d) of this Agreement.
ARTICLE 4. PROFITS AND LOSSES.
4.1 ALLOCATION OF PROFITS AND LOSSES. Commencing on the date hereof
and continuing through the term of the Partnership, all Partnership items of
income, gain, loss, deduction or credit (including without limitation the
investment tax credit and accelerated cost recovery deductions), as determined
for Federal income tax purposes, shall be allocated in accordance with the
ratios in which the Partnership distributes Net Cash Flow for the applicable
period.
4.2 RESTORATION OF NEGATIVE CAPITAL ACCOUNTS. Except as may be
required by law, by Section 12.3, or in respect of any negative balance
resulting from withdrawal of capital or a distribution in contravention of this
Agreement, at no time during the term of the Partnership shall a Partner with a
negative balance in its Capital Account have any obligation to the Partnership
or to another Partner to restore such negative balance.
4.3 PARTNERSHIP ADJUSTMENTS. In the event of the Transfer of all or
any part of the Partnership interest of a Partner or upon the death of a Partner
(if such Partner is a natural person), the Partnership may elect to adjust the
basis of Partnership property. Any
14
<Page>
increase or decrease in the amount of any item of income, gain, loss, deduction
or credit attributable to an adjustment to the basis of Partnership assets made
pursuant to a valid election under Sections 734, 743 and 754 of the Code, and
pursuant to corresponding provisions of applicable state and local income tax
laws, shall be charged or credited, as the case may be, to those Partners
entitled thereto under such laws.
4.4 ALLOCATIONS TO TRANSFERRED PARTNERSHIP INTERESTS. Items of
income, gain, loss, deduction and credit allocated to a Partnership interest
assigned or reissued during a Fiscal Year shall be allocated to each Person who
was the holder of the Partnership interest during such Fiscal Year, in
proportion to the number of days that each such holder was recognized as the
owner of such Partnership interest during such Fiscal Year or during an interim
period in respect of which the books of the Partnership shall be closed, as the
case may be, or in any other manner permitted by the Code and selected by the
General Partner in accordance with this Agreement, without regard to the results
of Partnership operations or the date, amount or recipient of any distributions
which may have been made with respect to such Partnership interest. The
effective date of the assignment shall be (a), in the case of a voluntary
assignment, the actual date the assignment as recorded on the books of the
Partnership, or (b) in the case of involuntary assignment, the date of the
operative event.
ARTICLE 5. DISTRIBUTIONS.
5.1. NET CASH FLOW. Commencing on the date hereof and continuing
through the term of the Partnership, the Partnership shall distribute Net Cash
Flow as follows: 59.7142 percent to PI; 30.0000 percent to CEC; 3.1429 percent
to BSSN; and 7.1429 percent to POWER.
5.2. NET SALE OR REFINANCING PROCEEDS. The Partnership shall
distribute Net Sale or Refinancing Proceeds in the same manner as it distributes
Net Cash Flow for the applicable period under Section 5.1.
5.3 DISTRIBUTIONS IN KIND. During the existence of the Partnership,
Partners shall not be entitled to receive as distributions from the Partnership
any Partnership asset other than money. If upon termination
15
<Page>
and liquidation of the Partnership, the General Partner determines that (a) an
immediate sale of part or all of the assets of the Partnership would cause undue
loss to the Partners, and (b) the assets of the Partnership would be readily
susceptible to division for distribution in kind to the Partners, then to that
extent the General Partner may distribute such assets to the Partners in kind.
For such purposes, the assets of the Partnership shall be valued at fair market
value at the time of distribution.
ARTICLE 6. POWERS, RIGHTS AND DUTIES OF THE GENERAL PARTNER.
6.1 MANAGEMENT.
(a) The General Partner shall have exclusive management and
control of the business of the Partnership and all decisions regarding the
management and affairs of the Partnership shall be made by the General Partner.
The General Partner shall have all the rights and powers of a General Partner as
provided in the Act and as otherwise provided by law, and any action taken by
the General Partner shall constitute the act of and serve to bind the
Partnership. In dealing with the General Partner acting on behalf of the
Partnership, no Person shall be required to inquire into its authority to bind
the Partnership. Persons dealing with the Partnership are entitled to rely
conclusively upon the power and authority of the General Partner as set forth in
this Agreement.
(b) The General Partner shall devote such time to the
Partnership business as it shall reasonably deem to be necessary to supervise
the Partnership business and affairs in an efficient manner; but nothing
contained in this Agreement shall preclude the employment, at the expense of the
Partnership, of any agent or other third party to operate and manage all or any
portion of the property, business or operations of the Partnership, subject to
the control of the General Partner. Subject to Section 6.3 of this Agreement,
Affiliates of the General Partner may be employed by the Partnership to perform
any other services for the Partnership deemed reasonably necessary by the
General Partner.
16
<Page>
(c) In furtherance of the purpose of the Partnership as set
forth in Section 2.4 of this Agreement, the General Partner is hereby granted
the right, power and authority to do on behalf of the Partnership all things
which, in its sole and reasonable judgment, are necessary, proper or desirable
to carry out its duties and responsibilities hereunder, including, but not
limited to, the following: from time to time to incur all reasonable
expenditures; to employ and dismiss from employment any and all employees,
agents, contractors, brokers, attorneys and accountants; to create, by grant or
otherwise, easements and servitudes; to borrow money on an unsecured basis; to
borrow money in any amount from any Person, including any Affiliates of the
General Partner, on a recourse or nonrecourse basis, and as security therefor to
mortgage all or any part of the Partnership's property; to renovate, alter,
improve, repair, raze, replace or rebuild any building or other improvement on
all or any portion of any Partnership property which is real estate; to purchase
or acquire interests in real or personal property; to obtain refinancings or
replacements of any mortgages or other security instruments related in any way
to any Partnership property, and to prepay in whole or in part, refinance,
recast, modify, consolidate or extend any of the terms of any indebtedness owed
by the Partnership or affecting all or any portion of any Partnership property;
to do any and all of the foregoing at such price or amount for cash, securities
or other property and upon such terms as the General Partner deems proper; and
to execute, acknowledge and deliver any and all contracts, agreements or other
instruments to effectuate any and all of the foregoing.
(d) The General Partner shall not be required to manage the
Partnership as its sole and exclusive function, and it 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 any 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 the pursuit of such ventures shall not be deemed wrongful or
improper. Partners and their Affiliates shall not be obligated to present any
particular investment opportunity to the Partnership even if such opportunity is
of a character which, if presented to the Partnership, could be taken by the
Partnership, and each of them shall have the right to take
17
<Page>
for its own account (individually or otherwise) or to recommend to others any
such particular investment opportunity.
(e) No Partner shall intentionally take or cause to be taken any
action which constitutes a default under any contracts or agreements to which
the Partnership is a party, nor shall any Partner perform any act in violation
of any applicable law or regulation thereunder, including all applicable Federal
and state securities laws.
6.2 FIDUCIARY DUTIES. The General Partner shall have the fiduciary
duty to conduct the affairs of the Partnership for the exclusive benefit of the
Partnership and to use all Partnership funds and assets in the best interests of
the Partnership. The General Partner shall have full authority on behalf of the
Partnership to adopt such resolutions as may be required by any bank, savings
and loan association or other financial institution for the operation of the
Partnership's accounts, to make deposits and withdrawals from such accounts, to
make and execute the checks, drafts, notes and other instruments representing
funds of the Partnership in such accounts, and to take any and all such other
action as may be necessary or appropriate in connection with the operation of
such accounts.
6.3 BUSINESS WITH AFFILIATES OR ASSOCIATES. The General Partner
shall not cause the Partnership to transact any business with the General
Partner, or an Affiliate or Associate thereof, for goods or services in
connection with the conduct of the Partnership's business, except that such
transaction may be effected if the transaction is on terms no less favorable to
the Partnership than would be available in a bona fide arm's length transaction
with an unaffiliated Person.
6.4 REIMBURSEMENT. The Partnership shall reimburse the General
Partner for the cost of goods, materials and services used for or by the
Partnership. The General Partner shall be reimbursed by the Partnership for any
indirect expenses incurred in performing services for the Partnership, such as
officers' salaries, rent, utilities and other overhead items, but in no event
shall reimbursement for such indirect expenses exceed $25,000 in any Fiscal
Year. The Partnership shall also
18
<Page>
reimburse the General Partner for services which could be performed directly for
the Partnership by independent parties, such as legal, accounting, duplicating
and other similar services. Such amounts charged to the Partnership shall not
exceed the lesser of (a) the actual cost of such services to the party providing
them or (b) the amount which the Partnership would be required to pay to
independent parties for comparable services. Each such payment and
reimbursement of expenses pursuant to this Section 6.4 shall be made prior to
any distributions under Article 5.
6.5 ESTABLISHMENT OF RESERVES. Pursuant to the terms of this
Agreement, the General Partner may from time to time establish such reserves for
the Partnership as it deems reasonable and necessary.
6.6 COMPENSATION. Following the In-Service Date, in consideration of
the management services to be performed by the General Partner and the
development services performed by CEC prior to its admission to the Partnership,
the Partnership shall pay the General Partner and CEC 70 percent and 30
percent, respectively, of any management fees paid by PERC to the Partnership
pursuant to Section 6.4 of the PERC Partnership Agreement. The Partners
acknowledge that the Management Fee is a guaranteed payment within the meaning
of Section 707(c) of the Code and furthermore is not to be treated as a
distribution under Article 5 for any purpose.
6.7 EXCLUSIVE BROKER. The Partners hereby appoint PI as their
exclusive agent in connection with the Transfer or refinancing of all or any
part of the Partnership's interest in PERC. PI shall be paid a commission equal
to five percent of the gross price of any sale, assignment or other conveyance
of all or part of the Partnership's interest in PERC and two percent of the
proceeds of any refinancing of all or part of the Partnership's interest in
PERC.
19
<Page>
ARTICLE 7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTNERS.
7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PI. PI hereby
represents and warrants to and covenants with the Partnership and the Partners
as follows:
(a) CORPORATE ORGANIZATION. PI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Maine.
(b) POWER AND AUTHORITY. PI has the requisite corporate power
and authority to enter into this Agreement and to perform according to the terms
hereof.
(c) DUE AUTHORIZATION. PI has taken all necessary corporate
action to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(d) VALIDITY. This Agreement has been duly authorized, executed
and delivered by PI and constitutes the legal, valid and binding obligation of
PI, enforceable against PI in accordance with its terms, except insofar as
enforcement may be limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and by moratorium laws
from time to time in effect and general equitable principles.
(e) NO VIOLATION OF LAW. The execution, delivery and performance
by PI of this Agreement does not violate any provision of any law, rule,
regulation, order, writ, judgment, decree, determination or award presently in
effect having applicability to the Partnership or PI, except those the violation
of which would not have a material adverse effect on the Partnership or PI.
(f) NOTICE OF DEFAULT. PI shall forward to the Partners a copy
of any notice received by PI of any default under any agreement or instrument to
which the Partnership is a party or by which it is bound.
20
<Page>
7.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF CEC. CEC hereby
represents and warrants to and covenants with the Partnership and the Partners
as follows:
(a) PARTNERSHIP ORGANIZATION. CEC is a general partnership duly
formed and validly existing under the laws of the State of Maine.
(b) POWER AND AUTHORITY. CEC has the requisite partnership power
and authority to enter into this Agreement and to perform according to the terms
hereof.
(c) DUE AUTHORIZATION. CEC has taken all necessary partnership
action to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(d) VALIDITY. This Agreement has been duly authorized, executed
and delivered by CEC and constitutes the legal, valid and binding obligation of
CEC, enforceable against CEC in accordance with its terms, except insofar as
enforcement may be limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and by moratorium laws
from time to time in effect and general equitable principles.
(e) NO VIOLATION OF LAW. The execution, delivery and performance
by CEC of this Agreement does not violate any provision of any law, rule,
regulation, order, writ, judgment, decree, determination or award presently in
effect having applicability to the Partnership or CEC, except those the
violation of which would not have a material adverse effect on the Partnership
or CEC.
(f) EXPERIENCE AND FINANCIAL CAPABILITY; INVESTMENT INTENT. CEC
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and the risks of investing in the Partnership
interest and is able to bear completely the economic risk of such investment;
CEC qualifies as an "accredited investor" within the meaning of Rule 501 under
the Securities Act; and CEC is acquiring such Partnership interest for
investment purposes and not with a view to further distribution.
21
<Page>
(g) NO REGISTRATION UNDER THE SECURITIES ACT. CEC understands
that (i) its Partnership interest has not been registered under the Securities
Act or any state securities act on the grounds that the issuance thereof is
exempt and (ii) such exemption is based in part on CEC's representations and
warranties herein; and CEC further understands that such Partnership interest
cannot be sold or transferred in the absence of an effective registration
statement under the Securities Act and any applicable state securities act or an
exemption therefrom.
7.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF BSSN. BSSN hereby
represents and warrants to and covenants with the Partnership and the Partners
as follows:
(a) ASSOCIATION ORGANIZATION. BSSN is a professional corporation
duly formed and validly existing under the laws of the State of Maine.
(b) POWER AND AUTHORITY. BSSN has the requisite corporate power
and authority to enter into this Agreement and to perform according to the terms
hereof.
(c) DUE AUTHORIZATION. BSSN has taken all necessary action to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
(d) VALIDITY. This Agreement has been duly authorized, executed
and delivered by BSSN and constitutes the legal, valid and binding obligation of
BSSN, enforceable against BSSN in accordance with its terms, except insofar as
enforcement may be limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and by moratorium laws
from time to time in effect and general equitable principles.
(e) NO VIOLATION OF LAW. The execution, delivery and performance
by BSSN of this Agreement does not violate any provision of any law, rule,
regulation, order, writ, judgment, decree, determination or award presently in
effect having applicability to the Partnership or BSSN, except those the
violation of which
22
<Page>
would not have a material adverse effect on the Partnership or BSSN.
(f) EXPERIENCE AND FINANCIAL CAPABILITY; INVESTMENT INTENT.
BSSN has such knowledge and experience in financial and business matters that it
is capable of evaluating the merits and the risks of investing in the
Partnership and is able to bear completely the economic risk of such investment;
and BSSN is acquiring such Partnership interest for investment purposes and not
with a view to further distribution.
(g) NO REGISTRATION UNDER THE SECURITIES ACT. BSSN understands
that (i) its Partnership interest has not been registered under the Securities
Act or any state securities act on the grounds that the issuance thereof is
exempt and (ii) such exemption is based in part on BSSN'S representations and
warranties herein; and BSSN further understands that such Partnership interest
cannot be sold or transferred in the absence of an effective registration
statement under the Securities Act and any applicable state securities act or an
exemption therefrom.
7.4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF POWER. POWER hereby
represents and warrants to and covenants with the Partnership and the Partners
as follows:
(a) DUE AUTHORIZATION. POWER has taken all necessary action to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
(b) VALIDITY. This Agreement has been duly authorized, executed
and delivered by POWER and constitutes the legal, valid and binding obligation
of POWER, enforceable against POWER in accordance with its terms, except insofar
as enforcement, may be limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and by moratorium laws
from time to time in effect and general equitable principles.
(c) NO VIOLATION OF LAW. The execution, delivery and performance
by POWER of this Agreement does not violate any provision of any law, rule,
regulation, order, writ, judgment, decree, determination or
23
<Page>
award presently in effect having applicability to the Partnership or POWER,
except those the violation of which would not have a material adverse effect on
the Partnership or POWER.
(d) EXPERIENCE AND FINANCIAL CAPABILITY; INVESTMENT INTENT.
POWER has such knowledge and experience in financial and business matters that
he is capable of evaluating the merits and the risks of investing in the
Partnership and is able to bear completely the economic risk of such investment;
POWER qualifies as an "accredited investor" within the meaning of Rule 501 under
the Securities Act; and POWER is acquiring such Partnership interest for
investment purposes and not with a view to further distribution,
(e) NO REGISTRATION UNDER THE SECURITIES ACT. POWER understands
that (i) his Partnership interest has not been registered under the Securities
Act or any state securities act on the grounds that the issuance thereof is
exempt and (ii) such exemption is based in part on his representations and
warranties herein; and POWER further understands that such Partnership interest
cannot be sold or transferred in the absence of an effective registration
statement under the Securities Act and any applicable state securities act or an
exemption therefrom.
ARTICLE 8. INDEMNIFICATION.
8.1 INDEMNITY FOR ACTS AND OMISSIONS.
(a) The General Partner shall be indemnified and held harmless
by the Partnership from and against any and all claims, demands, liabilities,
costs, damages and causes of action arising out of or incidental to its
management or administration of the affairs of the Partnership.
(b) Indemnifications authorized under this Section 8.1 shall
include payment of reasonable attorneys' fees or other expenses incurred in
connection with settlement or in any legal proceeding, and the removal of any
liens affecting any property of the indemnitee. Such indemnification rights
shall be cumulative of, and in addition to, any and all rights, remedies and
recourses to which a Partner or the Partnership shall be
24
<Page>
entitled, whether or not pursuant to the provisions of this Agreement, at law or
in equity.
ARTICLE 9. RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS.
9.1 NO CONTROL BY THE LIMITED PARTNERS. The Limited Partners, in
their capacity as Limited Partners, shall not control the Partnership's business
and shall have no right or authority to act for or to bind the Partnership.
9.2 LIMITATION ON LIABILITY. The liability of each Limited Partner
shall be limited to the amount of its respective Capital Contribution under
Article 3. Except as required by law, by Article 3 or by Section 12.3, a Limited
Partner shall not have any liability to contribute money to the Partnership,
shall not be personally liable for any obligations of the Partnership, and shall
not be obligated to make loans to the Partnership.
9.3 POWER OF ATTORNEY.
(a) Each Limited Partner hereby makes, constitutes and appoints
the General Partner and its authorized officers, agents, successors or assigns,
its true and lawful attorney-in-fact with full power and authority in its name,
place, and stead to make, execute, sign, acknowledge, deliver, file and record
at the appropriate public offices such documents as may be necessary or
appropriate to carry out the provisions of this Agreement, including the
following:
(i) all certificates, other agreements and amendments
thereto which the General Partner deems necessary to continue the Partnership
as a limited partnership in each jurisdiction in which the Partnership conducts
business;
(ii) all instruments which the General Partner deems
necessary to effect any sales or Transfers by, or the dissolution and
liquidation of, the Partnership or to reflect a change or modification of such
Partnership made in accordance with the terms of this Agreement; and
25
<Page>
(iii) all such other instruments as may be deemed necessary
or desirable by the General Partner to carry out fully the provisions of this
Agreement in accordance with its terms.
(b) The foregoing power of attorney is hereby declared to be
irrevocable and coupled with an interest, and it shall survive the Bankruptcy or
legal disability of any of the Partners to the fullest extent permitted by law
and extend to its successors and assigns, and the Transfer of all or any part
of the Partnership interest of such Partner; PROVIDED, HOWEVER, that if the
General Partner or a Limited Partner Transfers all or any part of its respective
Partnership interest, the foregoing power of attorney of a Transferor Partner
shall survive such Transfer only until such time as the Transferee shall have
been admitted to the Partnership as a Substitute Partner and all required
documents and instruments shall have been duly executed, filed and recorded to
effect such substitution.
ARTICLE 10. TRANSFER OF LIMITED PARTNERSHIP INTERESTS.
10.1 PROHIBITED TRANSFERS. The Limited Partners may not Transfer or
otherwise encumber their interest in the Partnership or any part thereof in any
way whatsoever except as permitted in this Article 10, and any such Transfer or
encumbrance in violation of this Article 10 shall be null and void as against
the Partnership, except as otherwise provided by law.
10.2 PERMITTED TRANSFERS. At any time after the making of all Capital
Contributions required by Article 3 of this Agreement, a Limited Partner may
Transfer all (but not part) of its interest in the Partnership (but only if the
Transferor shall not then be in material default under this Agreement), provided
that:
(a) Any Transferee shall take such interest subject to the
terms, provisions and conditions of this Agreement and shall acknowledge its
acceptance of this Agreement by executing and delivering to the remaining
Partners an instrument in form satisfactory to said Partners whereby such
Transferee assumes and agrees to be bound by all the terms, provisions and
conditions hereof and to become, in the place of the transferring Limited
Partner, a Partner for all purposes herein (although in
26
<Page>
connection with such Transferee's assumption of obligations hereunder, such
Transferee shall be entitled to the benefit of any limitation upon the liability
of the Transferor hereunder).
(b) Such Transfer must be for cash consideration, and all costs
to the Partnership of such Transfer shall be paid by the Transferee or
Transferor.
(c) The General Partner shall have Consented to the Transfer
which Consent the General Partner may grant or withhold in its sole discretion.
(d) Before consummating a Transfer of its interest in the
Partnership in a transaction otherwise permitted under this Section 10.2, the
Limited Partner desiring to consummate such Transfer (the "Assigning Limited
Partner") shall give written notice to the General Partner of the proposed
transaction and shall deliver to the General Partner with such notice a copy of
the bona fide written offer from a prospective Transferee (such notice from the
Assigning Limited Partner, together with such copy of the bona fide written
offer, being hereinafter collectively called "Partnership Offer Notice") setting
forth the name of the prospective Transferee and all of the material terms and
conditions on which the Assigning Limited Partner intends to Transfer such
interest in the Partnership, and the General Partner shall then have 30 days
after the giving of the Partnership Offer Notice, together with the delivery of
such offer, to elect (by giving notice of the same to the Assigning Limited
Partner) to purchase such interest of the Assigning Limited Partner for the
purchase price and on the same terms and conditions as set forth in such
Partnership Offer Notice, and in the event the General Partner makes such
election, the transaction shall be closed within a period of 30 days after the
making of such election, with the time, place and date (within such period) as
specified by the General Partner in the notice of its election. If the General
Partner shall fail to give notice of this election, then the Assigning Limited
Partner may Transfer such Partnership interest (provided such Transfer is
otherwise permitted under this Article 10), at any time or times within 180 days
after the giving of such Partnership Offer Notice, for a purchase price and on
terms and conditions no more favorable to the Transferee than those contained in
the Partnership Offer Notice and only to the person identified in the
27
<Page>
Partnership Offer Notice, and if such Transfer is not consummated within said
180-day period, then the General Partner's rights to notice and to purchase as
aforesaid shall reapply to any pending Transfer and continue with respect to any
other proposed Transfer of the Partnership interest of the Assigning Limited
Partner. If a Transferee of a limited partnership interest does not become a
Substitute Limited Partner pursuant to Section 10.3, the Partnership shall not
recognize the Transfer and the Transferee shall not have any rights to require
any information on account of the Partnership's business, inspect the
Partnership's books, or vote on Partnership matters.
10.3 SUBSTITUTE LIMITED PARTNER. A Transferee of the whole or any
part of a Limited Partnership interest shall have the right to become a
Substitute Limited Partner in place of its Transferor only if all of the
following conditions are satisfied:
(a) the fully executed and acknowledged written instrument of
assignment which has been filed with the Partnership sets forth a statement of
the intention of the Transferor that the Transferee become a Substitute Limited
Partner in his place;
(b) the Transferee executes, adopts and acknowledges this
Agreement and agrees to assume all the obligations of its Transferor, and a
certificate evidencing the admission of such Person as a Substitute Limited
Partner shall have been filed for recording;
(c) any reasonable costs to the Partnership of the Transfer
shall have been paid to the Partnership; and
(d) the General Partner shall have Consented to the
substitution, which Consent it may grant or withhold in its sole discretion.
10.4 INVOLUNTARY WITHDRAWAL BY THE LIMITED PARTNER.
(a) If a Limited Partner who is a natural person does not, by
written instrument, designate a Person to become a Transferee of his Partnership
interest upon his death, then his personal representative shall have all the
rights of such Partnership interest for the
28
<Page>
purpose of settling or managing his estate, and such power as the decedent
possessed to Transfer his Partnership interest to a Transferee and to join with
such Transferee in making application to substitute such Transferee as a
Substitute Limited Partner.
(b) Upon the Bankruptcy, dissolution or other cessation of
existence of a Limited Partner which is not a natural person, the authorized
representative of such entity shall have all the rights of a Partner for the
purpose of effecting the orderly winding up and dissolution of the business of
such entity and such power as such entity possessed to designate a successor as
a Transferee of its Partnership interest and to join with such Transferee in
making application to substitute such Transferee as a Substitute Limited
Partner.
(c) The death, Bankruptcy, disability or legal incapacity of a
Limited Partner shall not dissolve or terminate the Partnership.
ARTICLE 11. WITHDRAWAL OF THE GENERAL PARTNER
11.1 ASSIGNMENT OR WITHDRAWAL BY THE GENERAL PARTNER. The General
partner may not Transfer its interest as a General Partner, in whole or in part,
or withdraw from the Partnership, except as permitted by this Article 11.
11.2 VOLUNTARY ASSIGNMENT OR WITHDRAWAL OF THE GENERAL PARTNER. Upon
giving 120 days' notice to the Limited Partners, the General Partner may
voluntarily withdraw from the Partnership or sell, transfer or assign its
interest only if:
(a) another Person has agreed to serve as successor General
Partner;
(b) such Person has satisfied the terms and conditions set forth
in Section 11.3; and
(c) the substitution of such Person will not cause the
Partnership to lose its status as a limited partnership for Federal income tax
purposes.
29
<Page>
11.3 REMOVAL OF THE GENERAL PARTNER.
(a) In the event of the Bankruptcy of the General Partner, at
the discretion of the Limited Partners, the General Partner may be removed as
General Partner. Any dispute that may arise regarding such removal shall be
submitted to arbitration pursuant to Section 14.14 hereof. In the event of such
dispute, the General Partner shall be removed only upon the issuance of an
arbitral decision that is final and nonappealable.
(b) If the General Partner is removed as General Partner, its
Partnership interest shall be converted to that of a Limited Partner, it shall
continue to receive allocations under Article 4 and distributions under Article
5 as if it had remained General Partner, and it shall continue to have all the
benefits of a Limited Partner, except that it shall not participate in the
management of the Partnership or approve its successor General Partner pursuant
to Section 11.4(a). In the event the General Partner is removed pursuant to this
Section 11.3, the Limited Partners may select another Person as a Substitute
General partner and the Consent of the General Partner which was removed shall
not be required.
11.4 SUCCESSOR GENERAL PARTNER.
A Person shall be admitted as a successor General Partner only if the
following terms and conditions are satisfied:
(a) the admission of such Person shall have been Consented to by
the Limited Partners;
(b) the Person shall have accepted and agreed to be bound by all
the terms and provisions of this Agreement by executing a counterpart thereof
and such other documents or instruments as may be required or appropriate in
order to effect the admission of such Person as a General Partner;
(c) a certificate evidencing the admission of such Person as a
General Partner shall have been filed for recordation;
30
<Page>
(d) if the successor General Partner is a corporation, it shall
have provided counsel for the Partnership with a certified copy of a resolution
of its Board of Directors authorizing it to become the General Partner; and
(e) none of the actions taken in connection with such transfer
or admission will have a material adverse tax effect upon the Partnership.
ARTICLE 12. DISSOLUTION AND WINDING UP AFFAIRS.
12.1 DISSOLUTION. No act, thing, occurrence, event or circumstance
shall cause or result in the dissolution of the Partnership, except that the
Partnership shall dissolve and terminate upon the happening of any one of the
following Dissolution Events:
(a) The retirement, death, insanity, or Bankruptcy of the
General Partner (if a natural person), or the General Partner's cessation to
exist as a legal entity (if other than a natural person);
(b) The determination by all the Partners that the Partnership
should be dissolved, in accordance with state law;
(c) The sale of all of the Partnership's property;
(d) An agreement in writing by all the Partners; or
(e) The expiration of the term of the Partnership pursuant to
Section 2.5 of this Agreement.
12.2 WINDING UP. In the event of the dissolution of the Partnership
for any reason, the Liquidator (who shall be the General Partner unless, the
Dissolution Event shall be that set forth in Section 12.1(a), in which event the
Liquidator shall be a Limited Partner then having the greatest distribution
percentage or the Limited Partners jointly if they have equal distribution
percentages) shall commence to wind up the affairs of the Partnership and to
liquidate its investments. The proceeds of such liquidation shall be applied and
distributed as set forth in Section 12.3. The Partners shall
31
<Page>
continue to share profits and losses, gain or loss on sale or disposition of
Partnership property, Net Cash Flow, and Net Sale or Refinancing Proceeds during
the period of winding up in the same manner and proportion as before the
dissolution. The Partner or Partners obligated to wind up the affairs of the
Partnership shall have full right and unlimited discretion to manage the
business of the Partnership during the winding up period and to determine in
good faith the time, manner and terms of any sale or sales of Partnership
property pursuant to such liquidation.
12.3 DISTRIBUTIONS UPON DISSOLUTION AND TERMINATION. After all
liabilities and obligations of the Partnership, including all expenses of
liquidation, shall have been paid or provided for (whether by such reserve as
the Liquidator shall deem appropriate or otherwise), and all items of gain,
loss, deduction and credit shall have been allocated in accordance with Article
4, and after any distributions of Net Cash Flow and Net Sale or Refinancing
Proceeds pursuant to Sections 5.1 and 5.2, any proceeds from the liquidation of
the Partnership shall be distributed to the Partners with positive Capital
Account balances in proportion to such Capital Account balances within the
period specified in Treasury Regulation Section 1.704-l(b)(2)(ii)(b)(2). Any
Partner with a deficit in his Capital Account following the complete
distribution of the liquidation proceeds will be required to restore the amount
of such deficit to the Partnership within the period specified in Treasury
Regulation Section 1.704-l(b)(2)(ii)(b)(3), which amount will be paid first to
creditors and the remaining balance, if any, will be distributed to the Partners
in proportion to the Partners' Capital Account balances.
ARTICLE 13. ACCOUNTING AND REPORTS.
13.1 BOOKS AND RECORDS. The General Partner shall maintain or cause
to be maintained at the office of the Partnership this Agreement and all
amendments thereto and full and accurate books of the Partnership showing all
receipts and expenditures, assets and liabilities, profits and losses, and all
other books, records and information required by the Partnership Act as
necessary for recording the Partnership's business and affairs. The
Partnership's books and records shall be maintained on an accrual basis in
accordance with GAAP. Such docu-
32
<Page>
ments, books and records shall be maintained at such office until five years
after the termination and liquidation of the Partnership.
13.2 REPORTS TO PARTNERS.
(a) Within 60 days after the end of each fiscal quarter, the
General Partner shall send to the Limited Partners an unaudited closing balance
sheet as of the end of such fiscal quarter and a statement of operations for
such fiscal quarter. Within 90 days after the end of such Fiscal Year, the
General Partner shall send to the Limited Partners an unaudited closing balance
sheet as of the end of such Fiscal Year and a statement of operations for such
Fiscal Year.
(b) As soon as practicable after the end of each Fiscal Year,
the General Partner shall furnish to the Partners reports containing at least
the following information:
(i) by each April 1, Service Form K-l, or any similar
form as may be required by the Code or the Service; and
(ii) a reconciliation between the aforementioned unaudited
financial reports prepared by the General Partner and the basis the Partnership
uses for preparation of its Federal income tax returns.
13.3 ANNUAL TAX RETURNS.
(a) The General Partner is hereby designated the "Tax Matters
Partner" for Federal income tax purposes pursuant to section 6231 of the Code
with respect to all taxable years of the Partnership and is authorized to do
whatever is necessary to qualify as such. The General Partner shall prepare or
cause to be prepared all tax and information returns required of the Partnership
(including, but not limited to, Federal, state and local income tax and
information returns), which returns shall be reviewed in advance of filing by
the Independent Accountant. The Partners shall file their individual or
corporate returns in a manner consistent with the Partnership tax and
information returns.
33
<Page>
(b) The General Partner shall do all acts, make all elections,
and take whatever reasonable steps are required to maximize, in the aggregate,
the Federal, state and local income tax advantages available to the Partnership
and shall defend all tax audits and litigation with respect thereto. The General
Partner shall maintain the books, records and tax returns of the Partnership in
a manner consistent with the acts, elections and steps taken by the Partnership.
13.4 ACTIONS IN EVENT OF AUDIT. If an audit of any of the
Partnership's tax returns shall occur, the General Partner shall, at the expense
of the Partnership, participate in the audit and may contest, settle or
otherwise compromise assertions of the auditing agent which may be adverse to
the Partnership. The General Partner may, if it determines that the retention of
accountants and/or other professionals would be in the best interests of the
Partnership, retain such accountants, and/or other professionals, to assist in
such audits (if any). The Partnership shall indemnify and reimburse the General
Partner for all expenses, including legal and accounting fees, claims,
liabilities, losses and damages to the extent borne by the General Partner,
incurred in connection with any administrative or judicial proceeding with
respect to any audit of the Partnership's tax returns. The payment of all such
expenses to which this indemnification applies shall be made before any
distributions pursuant to Section 5.1 or 5.2 of this Agreement. Neither the
General Partner, or any Affiliates, nor any other Person shall have any
obligation to provide funds for such purpose. The taking of any action and the
incurrence of any expense by the General Partner in connection with any such
proceeding, except to the extent required by law, is a matter in the sole
discretion of the General Partner; PROVIDED, HOWEVER, that the decision to take
any action or not to take any action shall be made in accordance with the
General Partner's fiduciary duty as set forth in Section 6.2 of this Agreement.
The indemnification set forth in Section 8 of this Agreement shall be fully
applicable to the General Partner in its capacity as Tax Matters Partner.
34
<Page>
ARTICLE 14. GENERAL PROVISIONS.
14.1 AMENDMENTS. This Agreement may be amended only upon the written
consent of all Partners.
14.2 TITLE TO PARTNERSHIP PROPERTY. All property owned by the
Partnership, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Partnership as an entity, and no Partner, individually, shall
have any ownership of such property. The Partnership may hold any of its assets
in its own name or in the name of its nominee for the benefit of the
Partnership, which nominee may be one or more individuals, corporations,
partnerships, trusts or other entities.
14.3 NOTICES. All notices and other communications required or
permitted by this Agreement or by law to be served upon or given to a party
hereto by any other party hereto shall be deemed duly served and given when
received after being delivered by hand or sent by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to PI or KTI:
411 Hackensack Avenue
Hackensack, New Jersey 07601
Attention: Nicholas Menonna, Jr.
Executive Vice President
If to CEC:
c/o Central Equipment Company
Stillwater, Maine 04489
Attention: Mr. Ralph E. Leonard
President
If to BSSN:
One Monument Square
Portland, Maine 04101:
Attention: Gordon F. Grimes, Esq.
Vice President
35
<Page>
If to POWER:
c/o Fechtor, Detwiler & Co.
155 Federal Street
Boston, Massachusetts 02110
Each Partner may change its address for the purpose of this Section 14.3 by
giving written notice of such change to the other Partners in the manner
provided in this Section 14.3.
14.4 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Maine, without reference to the conflicts of laws or principles
thereof.
14.5 HEADINGS. The headings of the articles and sections of this
Agreement are inserted for convenience only and are not to be deemed to
constitute a part of this Agreement.
14.6 FURTHER AND ADDITIONAL DOCUMENTS AND REPORTS. Each of the
parties hereto agrees to execute, acknowledge and verify, if required to do so,
all further or additional documents as may be reasonably necessary to effectuate
fully the terms of this Agreement.
14.7 COUNTERPARTS. This Agreement may be executed in counterparts,
each one of which shall be considered an original, and all of which, when taken
together, shall constitute one and the same instrument.
14.8 BINDING ON SUCCESSORS AND ASSIGNS. Except as otherwise
specifically provided herein, this Agreement shall be binding upon and inure to
the benefit of the executors, administrators, successors, and assigns of the
respective Partners.
14.9 WAIVER. The terms, conditions, covenants, representations, and
warranties hereof may be waived only by a written instrument executed by the
Partner waiving compliance. The failure of a Partner at any time or times to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. The waiver of any breach of any term,
covenant, or condition of this Agreement by any of the parties hereto shall not
constitute a continuing waiver or waiver of any subsequent breach, either of the
36
<Page>
same or of any other additional or different term, covenant, or condition of
this Agreement.
14.10 SEVERABILITY. Whenever possible, each provision of this
Agreement and all related documents shall be interpreted in such a manner as to
be valid under applicable law, but if any such provision is invalid or
prohibited under said applicable law, such provision shall be ineffective to the
extent of such invalidity or prohibition without invalidating the remainder of
such provision or the remaining provisions of the affected documents.
14.11 ATTORNEYS' FEES. The parties hereto agree that in the event any
party to this Agreement shall be required to initiate legal or arbitration
proceedings to enforce performance of any term or condition of this Agreement
including, but not limited to, the payment of monies or the enjoining of any
action prohibited hereunder, the prevailing party shall be entitled to recover
such sums, in addition to any other damages or compensation received, as will
reimburse such prevailing party for attorneys' fees-and court and/or arbitration
costs incurred on account thereof, regardless of whether such action proceeds to
final judgment or determination.
14.12 CREDITORS. None of the provisions of this Agreement shall be for
the benefit of or enforceable by a creditor of the Partnership or of a Partner.
14.13 REMEDIES. Except as may be provided explicitly in this
Agreement, the rights and remedies of any of the parties hereunder shall not be
mutually exclusive, and the exercise of one or more of the provisions hereof
shall not preclude the exercise of any other provision hereof. Each of the
Partners confirms that monetary damages may be an inadequate remedy for breach
or threat of breach of any provision hereof. The respective rights and
obligations hereunder shall be enforceable by specific performance, injunction,
or other equitable remedy, but nothing herein contained is intended to limit or
affect any rights at law or by statute or otherwise of any party aggrieved as
against the other for a breach or threat of breach of any provision hereof, it
being the intention by this Section 14.13 to make clear the agreement of the
parties hereunder that this Agreement shall be enforceable in equity as well as
at law or otherwise.
37
<Page>
14.14 ARBITRATION. Any party hereto may require the arbitration of
any matter or matters arising under or in connection with this Agreement.
Arbitration is initiated and required by giving notice specifying the matter to
be arbitrated. If legal action is already pending on any matter concerning which
the notice is given, the notice is ineffective unless given before the
expiration of 20 days after service of process on the person giving the notice.
Except as provided to the contrary in these provisions on arbitration, the
arbitration shall be held in Portland, Maine, and shall be in conformity with
and subject to the then applicable rules and procedures of the American
Arbitration Association (or any successor thereto). If the American Arbitration
Association is not then in existence and there is no successor, or if for any
reason the American Arbitration Association fails or refuses to act, the
arbitration shall be in conformity with and subject to the provisions of
applicable statutes (if any) relating to arbitration at the time of the
notice. The arbitrators shall be bound by this Agreement and all related
agreements. Pleadings in any action pending on the same matter shall, if
arbitration is required, be deemed amended to limit the issues to those
contemplated by the rules prescribed above. The costs of arbitration, including
arbitrator's fees, shall be paid by the nonprevailing party. The number and
selection of arbitrators shall be in accordance with the rules prescribed above,
except that each arbitrator selected shall be familiar with the subject matter
of the issues to be arbitrated, such as, by way of example, partnership
accounting, or management of waste-to-energy facilities, or such other subject
matter as may be at issue.
14.15 PAYMENTS ON NONBUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a Saturday, Sunday or a public holiday
under the laws of the jurisdiction in which payment is to be made, such payment
may be made on the next succeeding business day.
14.16 SCHEDULES AND EXHIBITS. Each of the Schedules and Exhibits
attached hereto is hereby incorporated herein and made a part hereof for all
purposes, and references thereto contained herein shall be deemed to include
this reference and incorporation.
38
<Page>
14.17 NUMBER AND GENDER. Unless the context clearly indicates
otherwise, where appropriate in this Agreement, the singular shall include the
plural and the masculine shall include the feminine and the neuter, and VICE
VERSA.
14.18 TERMINATION OF LETTER AGREEMENTS. This Agreement supersedes the
letter agreements attached as Exhibits A, B and C hereto, and such letter
agreements are hereby terminated and of no further force or effect.
39
<Page>
IN WITNESS WHEREOF, the parties hereto have signed and sworn to this
First Amended and Restated Agreement and Certificate of Limited Partnership the
day and year first above written.
THE GENERAL PARTNER:
PERC, INC.
By: /s/ Nicholas Menonna, Jr.
------------------------------------
Nicholas Menonna, Jr.
Executive Vice President
THE LIMITED PARTNERS:
CENTRAL ENERGY COMPANY
By: Central Energy Corporation I
General Partner
By:
------------------------------------
Ralph E. Leonard
President
By:
------------------------------------
Clark Young
General Partner
BERNSTEIN, SHUR, SAWYER
AND NELSON, P.A.
By: /s/ Gordon F. Grimes
------------------------------------
Gordon F. Grimes
Vice President
/s/ Jeffrey R. Power
----------------------------------------
JEFFREY R. POWER
Individually
40
<Page>
THE WITHDRAWING LIMITED PARTNER:
KUHR TECHNOLOGIES, INC.
By: /s/ Nicholas Menonna, Jr.
------------------------------------
Nicholas Menonna, Jr.
Executive Vice President
41
<Page>
IN WITNESS WHEREOF, the parties hereto have signed and sworn to this
First Amended and Restated Agreement and Certificate of Limited Partnership the
day and year first above written.
THE GENERAL PARTNER:
PERC, INC.
By:
------------------------------------
Nicholas Menonna, Jr.
Executive Vice President
THE LIMITED PARTNERS:
CENTRAL ENERGY COMPANY
By: Central Energy Corporation I
General Partner
By: /s/ Ralph E. Leonard
------------------------------------
Ralph E. Leonard
President
By: Central Energy Corporation II
General Partner
By: /s/ Clark Young
------------------------------------
Clark Young
President
BERNSTEIN, SHUR, SAWYER
AND NELSON, P.A.
By:
------------------------------------
Gordon F. Grimes
Vice President
----------------------------------------
JEFFREY R. POWER
Individually
40A
<Page>
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
Personally appeared before me, Nicholas Menonna, Jr., Executive Vice
President of PERC, INC., to me known to be the person who executed the foregoing
instrument in the name and on behalf of said corporation, who, being duly sworn,
did acknowledge the same to be his free, voluntary, true and lawful act in said
capacity and the free, voluntary, true and lawful act of said corporation and
who did declare that the statements therein set forth are true to the best of
his knowledge and belief.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 15th day of May, 1986.
/s/ Mary Teresa Fahy
------------------------------------
[SEAL]
My commission expires:
MARY TERESA FAHY
Notary Public, State of New York
No. 41-4343808
Qualified in Queens County
Commission Expires March 30, 1987
42
<Page>
STATE OF MAINE ) May 14, 1986
) SS.
COUNTY OF PENOBSCOT )
Personally appeared before me, Clark Young, President of CENTRAL
ENERGY CORPORATION II, a partner of Central Energy Company, to me known to be
the person who executed the foregoing instrument in the name and on behalf of
said partnership, who, being duly sworn, did acknowledge the same to be his
free, voluntary, true and lawful act in said capacity and the free, voluntary,
true and lawful act of said partnership and who did declare that the statements
therein set forth are true to the best of his knowledge and belief.
/s/ George M. Thomas III
------------------------
GEORGE M. THOMAS III
NOTARY PUBLIC - MAINE
MY COMMISSION EXPIRES SEPT. 19, 1987
43
<Page>
STATE OF MAINE ) May 14, 1986
) SS.
COUNTY OF PENOBSCOT )
Personally appeared before me, Ralph E, Leonard, President of CENTRAL
ENERGY CORPORATION I, a partner of Central Energy Company, to me known to be the
person who executed the foregoing instrument in the name and on behalf of said
partnership, who, being duly sworn, did acknowledge the same to be his free,
voluntary, true and lawful act in said capacity and the free, voluntary, true
and lawful act of said partnership and who did declare that the statements
therein set forth are true to the best of his knowledge and belief.
/s/ George M. Thomas III
GEORGE M. THOMAS III
NOTARY PUBLIC - MAINE
MY COMMISSION EXPIRES SEPT. 19, 1987
42
<Page>
STATE OF MAINE ) May 19, 1986
) SS.
COUNTY OF CUMBERLAND)
Personally appeared before me, Gordon F. Grimes, Vice President of
Bernstein, Shur, Sawyer and Nelson, P.A. to me known to be the person who
executed the foregoing instrument in the name and on behalf of said professional
association, who, being duly sworn, did acknowledge the same to be his free,
voluntary, true and lawful act in said capacity and the free, voluntary, true
and lawful act of said professional association and who did declare that the
statements therein set forth are true to the best of his knowledge and belief,
and, insofar as based upon information and belief, he believes them to be true.
Before me,
/s/ [ILLEGIBLE]
---------------------------------------
Notary Public
MY COMMISSION EXPIRES
OCTOBER 2, 1987.
45
<Page>
STATE OF MASS ) May 14, 1986
) SS.
COUNTY OF SUFFOLK )
Personally appeared before me, Jeffrey R. Power, to me known to be the
person who executed the foregoing instrument, who, being duly sworn, did
acknowledge the same to be his free, voluntary, true and lawful act in said
capacity who did declare that the statements therein set forth are true to the
best of his knowledge and belief.
/s/ Daniel Briansky
----------------------
My commission expires: 4-9-93
46
<Page>
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
Personally appeared before me, Nicholas Menonna, Jr., Executive Vice
President of KUHR TECHNOLOGIES, INC., to me known to be the person who executed
the foregoing instrument in the name and on behalf of said corporation, who,
being duly sworn, did acknowledge the same to be his free, voluntary, true and
lawful act in said capacity and the free, voluntary, true and lawful act of said
corporation and who did declare that the statements therein set forth are true
to the best of his knowledge and belief.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 15th day of May, 1986.
/s/ Mary Teresa Fahy
----------------------------------------
[SEAL]
My commission expires:
MARY TERESA FAHY
Notary Public, State of New York
No. 41-4543808
Qualified in Queens County
Commission Expires March 30, 1987
47
<Page>
Filing Fee $250.00
DOMESTIC 19860013LP $250.00
LIMITED PARTNERSHIP ----------- ------------
FILE NO. FEE PAID
------------------------------------
STATE OF MAINE FILED
CERTIFICATE OF AMENDMENT March 31, 1992
----------------
PERC Management Company /s/ Gary Cooper
- ----------------------------- -------------------------
(Name of Limited Partnership) Deputy Secretary of State
[LOGO]
A TRUE COPY WHEN ATTESTED BY SIGNATURE
--------------------------
Deputy Secretary of State
Pursuant to 31 MRSA Section 422, the undersigned limited partnership executes
and delivers for filing this certificate of amendment:
FIRST: The name of the limited partnership has been changed to (if no
change, so indicate)
PERC Management Company Limited Partnership
---------------------------------------------------------------------
(The words "Limited Partnership" must be contained in name
Section 403.1.A. and Section 524.1.B.)
SECOND: The name and business, residence or mailing address of each NEW
general partner is (if no change, so indicate):
NAME ADDRESS
PERC, Inc. [a Delaware corporation]** 7000 BOULEVARD EAST
GUTTENBERG, NEW JERSEY 07093
/ / Names and addresses of additional new general partners are
attached hereto as Exhibit_____, and made a part hereof.
THIRD: The name of each WITHDRAWING general partner is (if no change,
so indicate):
PERC, Inc. [a Maine corporation]**
---------------------------------------------------------------------
---------------------------------------------------------------------
/ / Names of additional withdrawing general partners are attached
hereto as Exhibit_____, and made a part hereof.
FOURTH: Other amendments to the certificate, if any, that the partners
determine to adopt are set forth in Exhibits A & ? attached
hereto and made a part hereof.
** The domicile of the general partner, PERC, Inc., has been changed
by the merger of PERC, Inc., a Maine Corporation, into PERC, Inc., a
Delaware corporation.
<Page>
Filing Fee $250.00
DOMESTIC 19860013LP $250.00
LIMITED PARTNERSHIP ----------- ------------
FILE NO. FEE PAID
------------------------------------
STATE OF MAINE FILED
CERTIFICATE OF AMENDMENT March 31, 1992
----------------
PERC Management Company /s/ Gary Cooper
- ----------------------------- -------------------------
(Name of Limited Partnership) Deputy Secretary of State
[LOGO]
A TRUE COPY WHEN ATTESTED BY SIGNATURE
--------------------------
Deputy Secretary of State
Pursuant to 31 MRSA Section 422, the undersigned limited partnership executes
and delivers for filing this certificate of amendment:
FIRST: The name of the limited partnership has been changed to (if no
change, so indicate)
PERC Management Company Limited Partnership
---------------------------------------------------------------------
(The words "Limited Partnership" must be contained in name
Section 403.1.A. and Section 524.1.B.)
SECOND: The name and business, residence or mailing address of each NEW
general partner is (if no change, so indicate):
NAME ADDRESS
PERC, Inc. [a Delaware corporation]** 7000 BOULEVARD EAST
GUTTENBERG, NEW JERSEY 07093
/ / Names and addresses of additional new general partners are
attached hereto as Exhibit_____, and made a part hereof.
THIRD: The name of each WITHDRAWING general partner is (if no change,
so indicate):
PERC, Inc. [a Maine corporation]**
---------------------------------------------------------------------
---------------------------------------------------------------------
/ / Names of additional withdrawing general partners are attached
hereto as Exhibit_____, and made a part hereof.
FOURTH: Other amendments to the certificate, if any, that the partners
determine to adopt are set forth in Exhibits A & ? attached
hereto and made a part hereof.
** The domicile of the general partner, PERC, Inc., has been changed
by the merger of PERC, Inc., a Maine Corporation, into PERC, Inc., a
Delaware corporation.
<Page>
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT AND CERTIFICATE
OF LIMITED PARTNERSHIP OF PERC MANAGEMENT COMPANY
AMENDMENT made this 26th day of February, 1992 to the FIRST AMENDED AND
RESTATED AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP OF PERC MANAGEMENT
COMPANY (the "Partnership Agreement") by and among the undersigned, being all of
the Partners, both General and Limited, of PERC Management Company (the
"Partnership").
WHEREAS, the Partnership was formed pursuant to a partnership agreement and
certificate dated August 13, 1985 and filed with the Office of the Secretary of
State of Maine on August 15, 1985, and such partnership agreement and
certificate was amended and restated in its entirety by the Partnership
Agreement, dated May 14, 1986 and filed with the Office of the Secretary of
State of Maine on May 20, 1986; and
WHEREAS, the Partners of the Partnership desire to amend the Schedule A
attached to the Partnership Agreement in order to provide for the withdrawal of
Bernstein, Shur, Sawyer and Nelson, P.A. ("BSSN"), and Jeffrey R. Power, a
Massachusetts resident ("Power"), each as a limited partner and the admission of
KTI Limited Partners, a Delaware corporation ("KTI") as a substitute limited
partner, all as authorized pursuant to Article 10 thereof; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. Each of BSSN and Power hereby withdraws from the Partnership and
KTI is hereby admitted and accepted as a substitute limited partner in
place of each of BSSN and Power. KTI hereby acquires and assumes all
rights, interests and obligations of each of BSSN and Power as a
limited partner in the Partnership and agrees to be bound by all of
the provisions of the Partnership Agreement. In furtherance of the
foregoing, all references in the Partnership Agreement to "Bernstein,
Shur, Sawyer and Nelson, P.A." and "Jeffrey R. Power" are hereby
amended to read "KTI Limited Partners, Inc.".
2. This Agreement shall be deemed to be effective for all purposes as
of October 30, 1990. Except as hereby expressly amended, the
Partnership Agreement is reaffirmed.
EXHIBIT A
-1-
<Page>
3. This Agreement may be executed in counterparts, each one of which
shall be considered an original, and all of which, when taken
together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed the foregoing instrument
as of the date and year first above written.
SUBSTITUTE LIMITED PARTNER:
KTI Limited Partners, Inc.
By: /s/ [ILLEGIBLE]
-----------------------------------
Its CFO
WITHDRAWING LIMITED PARTNERS
Bernstein, Shur, Sawyer
and Nelson, P.A.
By:
-----------------------------------
Its
Jeffrey R. Power, Individually
--------------------------------------
GENERAL PARTNER
PERC, Inc.
By: /s/ [ILLEGIBLE]
-----------------------------------
Its CFO
LIMITED PARTNER
Central Energy Company
By: Central Energy
Corporation I, General
Partner
By: /s/ Ralph E. Leonard
-----------------------------
Its Pres.
By: Central Energy
Corporation II, General
Partner
By: /s/ Clark Young
-------------------------------
Clark Young, General
Partner
-2-
<Page>
3. This Agreement may be executed in counterparts, each one of which
shall be considered an original, and all of which, when taken
together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed the foregoing instrument
as of the date and year first above written.
SUBSTITUTE LIMITED PARTNER:
KTI Limited Partners, Inc.
By:
-----------------------------------
Its
WITHDRAWING LIMITED PARTNERS
Bernstein, Shur, Sawyer
and Nelson, P.A.
By: /s/ [ILLEGIBLE]
-----------------------------------
Its Vice President
Jeffrey R. Power, Individually
--------------------------------------
GENERAL PARTNER
PERC, Inc.
By:
----------------------------------
Its
LIMITED PARTNER
Central Energy Company
By: Central Energy
Corporation I, General
Partner
By:
-----------------------------
Its
By: Central Energy
Corporation II, General
Partner
By:
-----------------------------
Clark Young, General
Partner
-2-
<Page>
3. This Agreement may be executed in counterparts, each one of which
shall be considered an original, and all of which, when taken
together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed the foregoing instrument
as of the date and year first above written.
SUBSTITUTE LIMITED PARTNER:
KTI Limited Partners, Inc.
By:
-----------------------------------
Its
WITHDRAWING LIMITED PARTNERS
Bernstein, Shur, Sawyer
and Nelson, P.A.
By:
-----------------------------------
Its
Jeffrey R. Power, Individually
/s/ Jeffrey R. Power
--------------------------------------
GENERAL PARTNER
PERC, Inc.
By:
----------------------------------
Its
LIMITED PARTNER
Central Energy Company
By: Central Energy
Corporation I, General
Partner
By:
-----------------------------
Its
By: Central Energy
Corporation II, General
Partner
By:
-----------------------------
Clark Young, General
Partner
-2-
<Page>
STATE OF NEW JERSEY
COUNTY OF HUDSON, ss. March 4, 1992
Personally appeared before me MARTIN J. SERGI in his capacity as CHIEF
FINANCIAL OFFICER of KTI Limited Partners, Inc., who, being duly sworn, declared
that the foregoing was true and acknowledged that he executed the foregoing
instrument as his free act and deed and the free act and deed of the said
corporation.
/s/ Francis J. Elenio
---------------------------
Notary Public
FRANCIS J. ELENIO
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Sept. 25, 1995
STATE OF MAINE
COUNTY OF CUMBERLAND, ss _________________, 1992
Personally appeared before me _______________, in his capacity as
____________of Bernstein, Shur, Sawyer and Nelson, P.A., who, being duly sworn,
declared that the foregoing was true and acknowledged that he executed the
foregoing instrument as his free act and deed and the free act and deed of the
said corporation.
---------------------------
Notary Public
STATE OF ______________
COUNTY OF______________, ss ___________________,1992
Personally appeared before me Jeffrey R. Power, who, being duly sworn,
declared that the foregoing was true and acknowledged that he executed the
foregoing instrument as his free act and deed.
---------------------------
Notary Public
<Page>
STATE OF_________________
COUNTY OF________________, ss. __________________, 1992
Personally appeared before me ___________, in his capacity as______________
of KTI Limited Partners, Inc., who, being duly sworn, declared that the
foregoing was true and acknowledged that he executed the foregoing instrument as
his free act and deed and the free act and deed of the said corporation.
---------------------------
Notary Public
STATE OF MAINE
COUNTY OF CUMBERLAND, ss March 2, 1992
Personally appeared before me Eric F. Saunders, in his capacity as VICE
PRESIDENT of Bernstein, Shur, Sawyer and Nelson, P.A., who, being duly sworn,
declared that the foregoing was true and acknowledged that he executed the
foregoing instrument as his free act and deed and the free act and deed of the
said corporation.
/s/ Karen A. Harris
---------------------------
Notary Public
KAREN A. HARRIS
NOTARY PUBLIC, MAINE
MY COMMISSION EXPIRES JUNE 8, 1993
STATE OF ______________
COUNTY OF______________, ss ___________________, 1992
Personally appeared before me Jeffrey R. Power, who, being duly sworn,
declared that the foregoing was true and acknowledged that he executed the
foregoing instrument as his free act and deed.
---------------------------
Notary Public
-3-
<Page>
STATE OF ______________
COUNTY OF______________, ss ___________________, 1992
Personally appeared before me ________________, in his capacity as
_____________ of KTI Limited Partners, Inc., who, being duly sworn, declared
that the foregoing was true and acknowledged that he executed the foregoing
instrument as his free act and deed and the free act and deed of the said
corporation.
---------------------------
Notary Public
STATE OF MAINE
COUNTY OF CUMBERLAND, ss __________________, 1992
Personally appeared before me ________________, in his capacity as
____________ of Bernstein, Shur, Sawyer and Nelson, P.A., who, being duly sworn,
declared that the foregoing was true and acknowledged that he executed the
foregoing instrument as his free act and deed and the free act and deed of the
said corporation.
---------------------------
Notary Public
STATE OF MASSACHUSETTS
COUNTY OF SUFFOLK, ss 2/28, 1992
Personally appeared before me Jeffrey R. Power, who, being duly sworn,
declared that the foregoing was true and acknowledged that he executed the
foregoing instrument as his free act and deed.
/s/ [ILLEGIBLE]
---------------------------
Notary Public
COMM EXP May 7, 1993.
<Page>
STATE OF NEW JERSEY
COUNTY OF HUDSON, ss March 4, 1992
Personally appeared before me Martin J. Sergi, in his capacity as Chief
Financial Officer of PERC, Inc., who, being duly sworn, declared that the
foregoing was true and acknowledged that he executed the foregoing instrument as
his free act and deed and the free act and deed of the said corporation.
/s/ Francis J. Elenio
---------------------------
Notary Public
FRANCIS J. ELENIO
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Sept. 25, 1995
STATE OF MAINE
COUNTY OF PENOBSCOT, ss February 28, 1992
Personally appeared before me Ralph E. Leonard, in his capacity as
President of Central Energy Corporation I, a general partner of Central Energy
Company, who, being duly sworn, declared that the foregoing was true and
acknowledged that he executed the foregoing instrument as his free act and deed
and the free act and deed of the said corporation.
/s/ Lynn M. Crocker
---------------------------
Notary Public
Lynn M. Crocker
Notary Public, Maine
My Commission Expires March 31, 1998
STATE OF Maine
COUNTY OF PENOBSCOT, ss February 28, 1992
Personally appeared before me Clark Young, in his capacity as President of
Central Energy Corporation, II, a general partner of Central Energy Company,
who, being duly sworn, declared that the foregoing was true and acknowledged
that he executed the foregoing instrument as his free act and deed and the free
act and deed of the said corporation.
/s/ Lynn M. Crocker
----------------------------
Notary Public
Lynn M. Crocker
Notary Public, Maine
My Commission Expires March 31, 1998
-4-
<Page>
SECOND AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT AND CERTIFICATE OF
LIMITED PARTNERSHIP OF PERC MANAGEMENT COMPANY,
HEREBY RENAMED PERC MANAGEMENT COMPANY LIMITED PARTNERSHIP
SECOND AMENDMENT made as of this 18th day of March, 1992, to the FIRST AMENDED
AND RESTATED AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP OF PERC MANAGEMENT
COMPANY, as amended (the "Partnership Agreement"), by and among the undersigned,
being all of the Partners, both General and Limited, of PERC Management Company
(the "Partnership").
WHEREAS, the Partnership was formed pursuant to a partnership agreement and
certificate dated August 13, 1985 and filed with the Office of the Secretary of
State of Maine on August 15, 1985, and such partnership agreement and
certificate was amended and restated in its entirety by the Partnership
Agreement dated May 14, 1986 and filed with the Office of the Secretary of State
of Maine on May 20, 1986, and was amended by the First Amendment to the
Partnership Agreement on February 26, 1992; and
WHEREAS, the Partners of the Partnership desire to amend the Partnership
Agreement in order to provide for the withdrawal of Central Energy Company
("Company"), a Maine general partnership, as a limited partner and the admission
of Central Energy Corporation, a Florida corporation ("CEC"), as a substitute
limited partner, all as authorized pursuant to Article 10 thereof; and
WHEREAS, the Partners of the Partnership desire to record their consent, whether
or not required, to the merger of PERC, Inc., a Maine corporation ("PERC, Inc.,
Me."), into PERC, Inc., a Delaware corporation (PERC, Inc., Del"), wherein the
latter will continue as general partner of the Partnership in place of PERC,
Inc., Me.; and
WHEREAS, the Partners of the Partnership desire to bring the name of the
Partnership into conformity with 31 M.R.S.A. Section 403 (1)(A), as amended
effective January 1, 1992.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Company hereby withdraws from the Partnership and CEC is hereby admitted
and accepted as a substitute limited partner in place of Company. CEC
hereby acquires and assumes all rights, interests and obligations of
Company as a limited partner in the Partnership and agrees to be bound by
all of the provisions of the Partnership Agreement. In furtherance
EXHIBIT B
<Page>
of the foregoing, all references in the Partnership Agreement to "Central
Energy Company" are hereby amended to read "Central Energy Corporation,"
except that the references to "CEC" in paragraph 6.6 thereof are amended to
read "Central Energy Company, a Maine General Partnership." Notices to CEC
pursuant to Article 14.3 of the Partnership Agreement shall be addressed as
follows: 2625 South Atlantic Avenue, Apt. 12-A SE, Daytona Beach Shores, FL
32118; ATTN: RALPH E. LEONARD, President.
2. The name of the Partnership shall henceforth be "PERC Management Company
Limited Partnership." In furtherance of the foregoing, all references in
the Partnership Agreement to "PERC Management Company" are hereby amended
to read "PERC Management Company Limited Partnership."
3. Pursuant to the merger of PERC, Inc., Me. into PERC, Inc., Del., the
interest of PERC, Inc., Me. as general partner of the Partnership is deemed
to be vested in PERC, Inc., Del. and the latter is hereby admitted and
accepted as general, partner of the Partnership in place of PERC, Inc., Me.
which is no longer a partner of the Partnership. PERC, Inc., Del. hereby
acknowledges that it has acquired and assumed all rights, interests and
obligations of PERC, Inc., Me. as a general partner in the Partnership and
agrees to be bound by all the, provisions of the Partnership Agreement. In
furtherance of the foregoing, all references in the Partnership Agreement
to "PERC, Inc., a Maine corporation" are hereby amended to read "PERC,
Inc., a Delaware corporation" and all references in the Partnership
Agreement to "PERC, Inc." are hereinafter to be taken as references to
PERC, Inc., Del.
4. This Agreement shall be deemed to be effective for all purposes as of
March 18, 1992. Except as hereby expressly amended, the Partnership
Agreement, as previously amended, is reaffirmed.
5. This Agreement may be executed in counterparts, each one of which shall
be considered an original, and all of which, when taken together, shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed the foregoing instrument as of
the date and year first above written.
SUBSTITUTE LIMITED PARTNER
Central Energy Corporation
By: /s/ Ralph E. Leonard
------------------------------------
Ralph E. Leonard
Its President
2
<Page>
WITHDRAWING LIMITED PARTNER
Central Energy Company
By: Central Energy Corporation 1
Its general partner
By: /s/ Ralph E. Leonard
-----------------------------
Ralph E. Leonard
Its President
And by: Central Energy Corporation 2
Its general partner
By:
--------------------------
Carleton C. Young, III
Its President
GENERAL PARTNER
PERC, Inc. [Delaware]
By:
----------------------------------
Martin J. Sergi
Its Vice President and
Chief Financial Officer
MERGING GENERAL PARTNER
PERC, INC. [Maine]
By:
----------------------------------
Martin J. Sergi
Its Senior Vice President
and Chief Financial Officer
LIMITED PARTNER
KTI Limited Partners, Inc.
By:
-----------------------------------
Its
3
<Page>
WITHDRAWING LIMITED PARTNER
Central Energy Company
By: Central Energy Corporation 1
Its general partner
By:
--------------------------
Ralph E. Leonard
Its President
And by: Central Energy Corporation 2
Its general partner
By: /s/ Carleton C. Young III
--------------------------
Carleton C. Young, III
Its President
GENERAL PARTNER
PERC, Inc. [Delaware]
By:
----------------------------------
Martin J. Sergi
Its Vice President and
Chief Financial Officer
MERGING GENERAL PARTNER
PERC, INC, [Maine]
By:
----------------------------------
Martin J. Sergi
Its Senior Vice President
and Chief Financial Officer
LIMITED PARTNER
KTI Limited Partners. Inc.
By:
-----------------------------------
Its
3
<Page>
WITHDRAWING LIMITED PARTNER
Central Energy Company
By: Central Energy Corporation 1
Its general partner
By:
--------------------------
Ralph E. Leonard
Its President
And by: Central Energy Corporation 2
Its general partner
By:
--------------------------
Carleton C. Young, III
Its President
GENERAL PARTNER
PERC, Inc. [Delaware]
By: /s/ Martin J. Sergi
----------------------------------
Martin J. Sergi
Its Vice President and
Chief Financial Officer
MERGING GENERAL PARTNER
PERC, INC. [Maine]
By: /s/ Martin J. Sergi
----------------------------------
Martin J. Sergi
Its Senior Vice President and
Chief Financial Officer
LIMITED PARTNER
KTI LIMITED PARTNERS, INC.
By: /s/ [ILLEGIBLE]
----------------------------------
Its Chairman of the Board
3
<Page>
STATE OF FLORIDA
______________________________, ss.
Personally appeared before me Ralph E. Leonard, in his capacity as
President of Central Energy Corporation 1, a general partner of Central Energy
Company, who, being duly sworn, declared that the foregoing was true and
acknowledged that he executed the foregoing instrument as his free act and deed
and the free act and deed of the said corporation.
See attached Notary Acknowledgement.
Dated:
----------------- -----------------------
Notary Public
STATE OF MAINE
_______________________, ss.
Personally appeared before me Carleton C. Young, III in his capacity as
President of Central Energy Corporation 2, a general partner of Central Energy
Company, who, being duly sworn, declared that the foregoing was true and
acknowledged that he executed the foregoing instrument as his free act and deed
and the free act and deed of the said corporation.
Dated:
----------------- -----------------------
Notary Public
STATE OF NEW JERSEY
HUDSON, ss.
Personally appeared before me Martin J. Sergi, in his capacity as Vice
President and Chief Financial Officer of PERC, Inc. [Delaware], who, being duly
sworn, declared that the foregoing was true and acknowledged that he executed
the foregoing instrument as his free act and deed and the free act and deed of
the said corporation.
Dated:
----------------- -----------------------
Notary Public
4
<Page>
NOTARY ACKNOWLEDGEMENT
STATE OF FLORIDA
COUNTY OF VOLUSIA
The foregoing instrument, "President of Central Energy Corporation 1"
------------------------------------------
(DESCRIPTION OF INSTRUMENT)
was acknowledged before me this 19th day of March, 1992,
by - Ralph E. Leonard -
----------------------------
(NAME OF PERSON ACKNOWLEDGED)
/ / who is personally known to me, or
/X/ who has produced Maine Dri Lic 7754017 as identification, and
-----------------------
(TYPE OF IDENTIFICATION)
who / / did /X/ did not take an oath.
/s/ Diane Martin
--------------------------------------------
(SIGNATURE OF PERSON TAKING ACKNOWLEDGEMENT)
Diane Martin - NOTARY
------------------------------------------------
(NAME OF ACKNOWLEDGER TYPED, PRINTED OR STAMPED)
(TITLE OR RANK)
(SERIAL NUMBER, IF ANY)
NOTARY PUBLIC, STATE OF FLORIDA.
MY COMMISSION EXPIRES: APRIL 29, 1995.
BONDED THRU NOTARY PUBLIC UNDERWRITERS.
(FOR INDIVIDUAL ACTING IN HIS/HER OWN RIGHT)
<Page>
STATE OF FLORIDA
_____________________, ss.
Personally appeared before me Ralph E. Leonard, in his capacity as
President of Central Energy Corporation 1, a general partner of Central Energy
Company, who, being duly sworn, declared that the foregoing was true and
acknowledged that he executed the foregoing instrument as his free act and deed
and the free act and deed of the said corporation.
Dated:
------------------------ --------------------------
Notary Public
STATE OF MAINE
CUMBERLAND, ss.
Personally appeared before me Carleton C. Young, III in his capacity as
President of Central Energy Corporation 2, a general partner of Central Energy
Company, who, being duly sworn, declared that the foregoing was true and
acknowledged that he executed the foregoing instrument as his free act and deed
and the free act and deed of the said corporation.
Dated: March 18, 1992 /s/ Kim E. Minear
----------------------- --------------------------
Notary Public
KIM E. MINEAR
NOTARY PUBLIC MAINE
MY COMMISSION EXPIRES MARCH 18, 1996
STATE OF NEW JERSEY
HUDSON, ss.
Personally appeared before me Martin J. Sergi, in his capacity as Vice
President and Chief Financial Officer of PERC, Inc. [Delaware], who, being duly
sworn, declared that the foregoing was true and acknowledged that he executed
the foregoing instrument as his free act and deed and the free act and deed of
the said corporation.
Dated:
------------------------ --------------------------
Notary Public
4
<Page>
STATE OF FLORIDA
________________________, ss.
Personally appeared before me Ralph E. Leonard, in his capacity as
President of Central Energy Corporation 1, a general partner of Central Energy
Company, who, being duly sworn, declared that the foregoing was true and
acknowledged that he executed the foregoing instrument as his free act and deed
and the free act and deed of the said corporation.
Dated:
------------------------ --------------------------
Notary Public
STATE OF MAINE
________________________, ss.
Personally appeared before me Carleton C. Young, III in his capacity as
President of Central Energy Corporation 2, a general partner of Central Energy
Company, who, being duly sworn, declared that the foregoing was true and
acknowledged that he executed the foregoing instrument as his free act and deed
and the free act and deed of the said corporation.
Dated:
------------------------ --------------------------
Notary Public
STATE OF NEW JERSEY
HUDSON, ss.
Personally appeared before me Martin J. Sergi, in his capacity as Vice
President and Chief Financial Officer of PERC, Inc. [Delaware], who, being duly
sworn, declared that the foregoing was true and acknowledged that he executed
the foregoing instrument as his free act and deed and the free act and deed of
the said corporation.
Dated: 3/19/92 /s/ [ILLEGIBLE]
------------------------ --------------------------
Attorney-at-Law
4
<Page>
STATE OF NEW JERSEY
HUDSON, ss.
Personally appeared before me Martin J. Sergi, in his capacity as Senior
Vice President, and Chief Financial Officer of PERC, Inc. [Maine], who, being
duly sworn, declared that the foregoing was true and acknowledged that he
executed the foregoing instrument as his free act and deed and the free act and
deed of the said corporation.
Dated: 3/19/92 /s/ [ILLEGIBLE]
------------------------ --------------------------
Attorney-at-Law
STATE OF NEW JERSEY
HUDSON, ss.
Personally appeared before me Nicholas Menonna, Jr, in his capacity as
Chairman of the Board of KTI Limited Partners, Inc., who, being duly sworn,
declared that the foregoing was true and acknowledged that he executed the
foregoing instrument as his free act and deed and the free act and deed of the
said corporation.
Dated: 3-20-92 /s/ [ILLEGIBLE]
------------------------ --------------------------
Attorney-at-Law
STATE OF FLORIDA
_____________________, ss.
Personally appeared before me Ralph E. Leonard, in his capacity as
President of Central Energy Corporation, a Florida corporation, who, being duly
sworn, declared that the foregoing was true and acknowledged that he execute the
foregoing instrument as his free act and deed and the free act and deed of the
said corporation.
Dated:
------------------------ --------------------------
Notary Public
CMK/kem
CMK/47550/.AE8
5
<Page>
STATE OF NEW JERSEY
HUDSON, ss.
Personally appeared before me Martin J. Sergi, in his capacity as Senior
Vice President and Chief Financial Officer of PERC, Inc. [Maine], who, being
duly sworn, declared that the foregoing was true and acknowledged that he
executed the foregoing instrument as his free act and deed and the free act and
deed of the said corporation.
Dated:
------------------------ --------------------------
Notary Public
STATE OF ______________________
___________________, ss.
Personally appeared before me ____________, in his capacity as ____________
________, of KTI Limited Partners, Inc., who being duly sworn, declared that the
foregoing was true and acknowledged that he executed the foregoing instrument as
his free act and deed and the free act and deed of the said corporation.
Dated:
------------------------ --------------------------
Notary Public
STATE OF FLORIDA
___________________, ss.
Personally appeared before me Ralph E. Leonard, in his capacity as
President of Central Energy Corporation, a Florida corporation, who, being duly
sworn, declared that the foregoing was true and acknowledged that he execute the
foregoing instrument as his free act and deed and the free act and deed of the
said corporation.
See Attached Notary Acknowledgement
Dated:
------------------------ --------------------------
Notary Public
CMK/kem
CMK/47550/.AE8
5
<Page>
NOTARY ACKNOWLEDGEMENT
STATE OF FLORIDA
COUNTY OF VOLUSIA
The foregoing instrument, President of Central Energy Corporation.
-----------------------------------------------
(DESCRIPTION OF INSTRUMENT)
was acknowledged before me this 19th day of March, 1992,
by - Ralph E. Leonard -
-----------------------------
(NAME OF PERSON ACKNOWLEDGED)
/ / who is personally known to me, or
/X/ who has produced Maine Dri Lic 7754017 as identification, and
----------------------
(TYPE OF IDENTIFICATION)
who / / did / / did not take an oath.
/s/ Diane Martin
--------------------------------------------------
(SIGNATURE OF PERSON TAKING ACKNOWLEDGEMENT)
Diane Martin - Notary
-------------------------------------------------
(NAME OF ACKNOWLEDGER TYPED, PRINTED OR STAMPED)
(TITLE OR RANK)
(SERIAL NUMBER, IF ANY)
NOTARY PUBLIC, STATE OF FLORIDA.
MY COMMISSION EXPIRES: APRIL 29, 1995.
BONDED THRU NOTARY PUBLIC UNDERWRITERS.
(FOR INDIVIDUAL ACTING IN HIS/HER OWN RIGHT)
<Page>
Charter #: 19860013LP Page #: 1
LIST OF GENERAL PARTNERS
NAME OF LIMITED PARTNERSHIP:
PERC Management Company Limited Partnership
NAME OF GENERAL PARTNER & ADDRESS:
PERC, Inc.
7000 Boulevard East, Guttenberg, NJ 07093
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Prepared by: ld Date: 12/10/92
<Page>
FILING FEE $40.00
DOMESTIC 19860013LP $40.00
LIMITED PARTNERSHIP -------------- -------------
FILE NO. FEE PAID
STATE OF MAINE FILED
CERTIFICATE OF APPOINTMENT April 15, 1992
OF REGISTERED AGENT AND ------------------------------
REGISTERED OFFICE /s/ Gary Cooper
------------------------------
Deputy Secretary of State
A TRUE COPY WHEN ATTESTED BY SIGNATURE
PERC MANAGEMENT COMPANY
LIMITED PARTNERSHIP
- ---------------------------------
(Name of Limited Partnership) --------------------------
Deputy Secretary of State
Pursuant to 31 MRSA Section 524.1.C.1.a., the undersigned limited partnership
formed under the laws of the State of Maine on (date) AUGUST 15, 1985 advises
you of the following:
The name of the Registered Agent, an individual Maine resident or a
corporation, foreign or domestic, authorized to do business or carry
on activities in Maine, and the address of the registered office shall
be
FLOYD M. GENT C/O KTI OPERATIONS, INC.
----------------------------------------------------------------------
(name)
56 INDUSTRIAL PARK ROAD, SUITE 4, SACO, MAINE 04072
----------------------------------------------------------------------
(physical location - street (not P.O. Box), city, state and zip code)
----------------------------------------------------------------------
(mailing address if different from above)
GENERAL PARTNER(S)* DATED FEBRUARY 19, 1992
- ------------------------------------ ----------------------------------------
(signature) (type or print name)
FOR GENERAL PARTNER(S) WHICH ARE ENTITIES
Name of Entity PERC, INC.
By /s/ Martin J. Sergi MARTIN J. SERGI - VICE PRESIDENT
------------------------------- ----------------------------------------
(authorized signature) (type of print name and capacity)
*Certificate must be signed by at least one general partner (Section 424.1.B).
The execution of the certificate constitutes an oath or affirmation, under the
penalties of false swearing under Title 17-A, section 452, that, to the best of
the signers' knowledge and belief, the facts stated in the certificate are true
(Section 424.3.).
SUBMIT COMPLETED FORMS TO: SECRETARY OF STATE, STATION #101, AUGUSTA,
ME 04333-0101
ATTN: CORPORATE EXAMINING SECTION
FORM NO. MLPA-3C 92 TEL. (207) 289-4195
<Page>
BUREAU OF CORPORATIONS, ELECTIONS, AND COMMISSIONS
DEPARTMENT OF Janet E. Waldron
THE SECRETARY OF STATE ASSISTANT SECRETARY OF STATE
[LOGO]
G. William Diamond February 10, 1992 Gary Cooper
SECRETARY OF STATE DEPUTY SECRETARY OF STATE
19860013LP
PERC Management Group
PERC, Inc., General Partner
411 Hackensack Ave.
Hackensack, NJ 07601
Dear Sir:
Pursuant to Title 31 M.R.S.A. Section 524.1.C.1.a all limited partnerships
formed in the State of Maine prior to January 1, 1992 must appoint a registered
agent and registered office by APRIL 1, 1992.
Please find enclosed form MLPA-3C, Certificate of Appointment of Registered
Agent and Registered Office, for this purpose. This form must be completed and
returned to our office with the $40.00 filing fee. If assistance in completing
the form is required, please contact the Corporate Examining Section of our
office at (207) 289-4195.
Failure to appoint a registered agent and registered office by April 1,
1992 will result in the suspension of your certificate of limited partnership.
Sincerely,
/s/ Rebecca M. Wyke
Rebecca Wyke
Director of Corporations
Enclosure
STATE HOUSE STATION #101, AUGUSTA, MAINE 04333-0101, TEL. (207) 289-3676
<Page>
BUREAU OF CORPORATIONS, ELECTIONS, AND COMMISSIONS
DEPARTMENT OF Janet E. Waldron
THE SECRETARY OF STATE ASSISTANT SECRETARY OF STATE
[LOGO]
Bill Diamond Gary Cooper
SECRETARY OF STATE DEPUTY SECRETARY OF STATE
19860013LP
1933019650006
PERC MANAGEMENT COMPANY LIMITED PARTNERSHIP
FLOYD M. GENT, Registered Agent
C/O KTI OPERATIONS, INC.
56 INDUSTRIAL PARK ROAD, SUITE 4
SACO ME 04072
The above named limited partnership was reinstated effective 10/27/1993.
/s/ Rebecca M. Wyke
-----------------------
Rebecca Wyke
Director of Corporations
STATE HOUSE STATION #101, AUGUSTA, MAINE 04333-0101
<Page>
BUREAU OF CORPORATIONS, ELECTIONS, AND COMMISSIONS
DEPARTMENT OF Janet E. Waldron
THE SECRETARY OF STATE ASSISTANT SECRETARY OF STATE
[LOGO]
Bill Diamond Gary Cooper
SECRETARY OF STATE DEPUTY SECRETARY OF STATE
19860013LP
1932389850004
PERC MANAGEMENT COMPANY LIMITED PARTNERSHIP
FLOYD M. GENT, Registered Agent
C/O KTI OPERATIONS, INC.
56 INDUSTRIAL PARK ROAD, SUITE 4
SACO ME 04072
Please be advised that your certificate of limited partnership has been
suspended pursuant to Title 31 M.R.S.A. Section 530 (1) for failure to file the
1993 Annual Report and to pay the $60.00 filing fee and penalty owed. A limited
partnership, while suspended, may not engage in business in the State of Maine.
Our records indicate that you were notified of this impending suspension on
06/25/1993. In order to reinstate your limited partnership at this time, you
must file the 1993 Annual Report with the $60.00 filing fee and the
reinstatement fee of $125.00.
If you have any questions concerning this matter or require assistance in
reinstating your limited partnership, please contact the Reporting and
Information Section of our office at (207) 287-4190.
Dated this TWENTY-FIFTH day of AUGUST, 1993.
/s/ Rebecca M. Wyke
-----------------------
Rebecca Wyke
Director of Corporations
STATE HOUSE STATION #101, AUGUSTA, MAINE 04333-0101
<Page>
BUREAU OF CORPORATIONS, ELECTIONS, AND COMMISSIONS
DEPARTMENT OF Janet E. Waldron
THE SECRETARY OF STATE ASSISTANT SECRETARY OF STATE
[LOGO]
Bill Diamond Gary Cooper
SECRETARY OF STATE 06/25/1993 DEPUTY SECRETARY OF STATE
19860013LP
PERC MANAGEMENT COMPANY LIMITED PARTNERSHIP
FLOYD M. GENT, Registered Agent
C/O KTI OPERATIONS, INC.
56 INDUSTRIAL PARK ROAD, SUITE 4
SACO ME 04072
RE: FAILURE TO FILE ANNUAL REPORT
Our records indicate that you have not yet filed your 1993 Annual Report
for the year ending December 31, 1992, which was due in our office on or before
June 1, 1993 along with the filing fee of $60.00. We are therefore required by
Title 31 M.R.S.A. Section 530 (1) to assess a late filing penalty of $25.00.
Failure to file the Annual Report with the $60.00 filing fee and the $25.00
penalty due within 60 days of the date of this notice will result in the
suspension of your certificate of limited partnership.
A report form has been enclosed for your use. If you have any questions
concerning this matter, please contact the Reporting and Information Section of
our office at (207) 287-4190.
Sincerely,
/s/ Rebecca M. Wyke
Rebecca Wyke
Director of Corporations
Enclosure
STATE HOUSE STATION #101, AUGUSTA, MAINE 04333-0101
<Page>
[LOGO] FILING FEE $20.00 FOR EACH LIMITED
PARTNERSHIP LISTED
DOMESTIC
LIMITED PARTNERSHIP File No. 19860013LP Pages 1
Fee Paid $ 20.00
STATE OF MAINE DCN 1933121400007 RO
----------------FILED------------------
NOTIFICATION BY REGISTERED AGENT 11/08/1993
OF CHANGE IN NAME
OR REGISTERED OFFICE /s/ Gary Cooper
------------------------------
PERC MANAGEMENT COMPANY Deputy Secretary of State
LIMITED PARTNERSHIP
- --------------------------------- A TRUE COPY WHEN ATTESTED BY SIGNATURE
(Name of Limited Partnership)
------------------------------
Deputy Secretary of State
/ / Names of additional limited partnerships to which a copy of this notice has
been sent to a general partner thereof, are attached hereto as Exhibit ____,
and made as part hereof.
Pursuant to 31 MRSA Section 407.2.B., the undersigned gives notice of a change
of registered agent's name and/or registered office address of each limited
partnership listed herein:
FIRST: Name of registered agent appearing on the record in the Secretary of
State's office FLOYD M. GENT
SECOND: New name of registered agent (if no change, so indicate) NO CHANGE
THIRD: Address of registered office appearing on the record in the Secretary
of State's office
C/O KTI OPERATIONS, INC., 56 INDUSTRIAL PARK ROAD, SUITE 4, SACO,
ME 04072
----------------------------------------------------------------------
(street, city, state and zip code)
FOURTH: New address of registered office (if no change, so indicate)
C/O KTI ENVIRONMENTAL GROUP, INC., SUITE 402, TWO CITY CENTER.
----------------------------------------------------------------------
(physical location - Street (not P.O. Box), city, state and zip code)
PORTLAND, MAINE 04101
----------------------------------------------------------------------
(mailing address if different from above)
<Page>
[LOGO] Filing Fee $20.00
DOMESTIC File No. 19860013LP Pages 2
LIMITED PARTNERSHIP Fee Paid $ 20.00
DCN 1951441300005 AGRO
STATE OF MAINE -----------FILED--------------
05/22/1995
CHANGE OF REGISTERED AGENT ONLY
OR /s/ Gary Cooper
CHANGE OF REGISTERED AGENT ---------------------------
AND REGISTERED OFFICE Deputy Secretary of State
A TRUE COPY WHEN ATTESTED BY SIGNATURE
PERC MANAGEMENT COMPANY Limited
Partnership
- -------------------------------------- ---------------------------
Name of Limited Partnership Deputy Secretary of State
Pursuant to 31 MRSA Section 422.3.C., the undersigned limited partnership gives
notice of the following change(s):
FIRST: The name of the registered agent and the address of the registered
office appearing on the record in the Secretary of State's office are
FLOYD M. GENT C/O KTI ENVIRONMENTAL GROUP, INC.
----------------------------------------------------------------------
(name)
Suite 402 TWO CITY CENTER, PORTLAND, MAINE 04101
----------------------------------------------------------------------
(street, city, state and zip code)
SECOND: The name of its successor registered agent, an individual Maine
resident or a corporation, foreign or domestic, authorized to do
business or carry on activities in Maine, and the address of the new
registered office shall be
BRADLEY HUGHES
----------------------------------------------------------------------
(name)
KTI, INC., 110 MAIN STREET, SUITE #1303, SACO, MAINE 04072
----------------------------------------------------------------------
(physical location - street (not P.O. Box), city, state and zip code)
----------------------------------------------------------------------
(mailing address if different from above)
<Page>
EXHIBIT A
DOMESTIC Filing Fee $250.00
LIMITED PARTNERSHIP
File No. 19860013LP Pages 4
STATE OF MAINE Fee Paid $ 250
RESTATED CERTIFICATE OF DCN 1981691500037 REST
LIMITED PARTNERSHIP -----------FILED-------------
18-JUN-98
/s/ Nancy B. Kelleher
-----------------------------
Deputy Secretary of State
A TRUE COPY WHEN ATTESTED BY SIGNATURE
------------------------------
Deputy Secretary of State
PERC Management Company Limited Partnership
- -----------------------------------------------------------------
(Name of Limited Partnership as it appears on the record of the Secretary of
State)
Pursuant to 31 MRSA Section 422.6., the undersigned adopt(s) the following
restated certificate of limited partnership:
FIRST: The name of the limited partnership has been changed to (if no change,
so indicate)
No change
----------------------------------------------------------------------
(The name must contain one of the following: "Limited Partnership",
"L.P." or "LP"; Section 403.1.A and Section 524.1.B.)
SECOND: The date of filing of the initial certificate of limited partnership
May 20, 1986 and the name under which it was originally filed PERC
Management Company
THIRD: The name of the Registered Agent, an individual Maine resident or a
corporation, foreign or domestic, authorized to do business or carry
on activities in Maine, and the address of the registered office are
Bradley Hughes
----------------------------------------------------------------------
(name)
c/o KTI, Inc.
110 Main Street, Suite 1303, Saco, Maine 04072
----------------------------------------------------------------------
(physical location - street (not P.O. Box), city, state and zip code)
----------------------------------------------------------------------
(mailing address if different from above)
FOURTH: The name and business, residence or mailing address of each general
partner is:
NAME ADDRESS
7000 Boulevard East
PERC, Inc. Guttenberg, NJ 07093
------------------------- -----------------------------
------------------------- -----------------------------
------------------------- -----------------------------
/ / Names and addresses of additional general partners are attached
hereto as Exhibit _____, and made a part hereof.
FIFTH: Other provisions of this certificate, if any, that the partners
determine to include are set forth in Exhibit A attached hereto and
made a part hereof.
<Page>
DATED 6-4-98
GENERAL PARTNER(S)*
- -------------------------------------- -------------------------------------
(signature) (type or print name)
- -------------------------------------- -------------------------------------
(signature) (type or print name)
- -------------------------------------- -------------------------------------
(signature) (type or print name)
FOR GENERAL PARTNER(S) WHICH ARE ENTITIES
Name of Entity PERC, Inc.
-----------------------------------------------------------------
By /s/ Martin. J. Sergi MARTIN J. SERGI PRESIDENT
----------------------------------- -------------------------------------
(authorized signature) (type or print name and capacity)
Name of Entity
-----------------------------------------------------------------
By
---------------------------------- -------------------------------------
(authorized signature) (type or print name and capacity)
Name of Entity
-----------------------------------------------------------------
By
---------------------------------- -------------------------------------
(authorized signature) (type or print name and capacity)
* Certificate must be signed by at least one general partner and by each other
general partner designated as a new general partner by this restated certificate
(Section 424.1.B.). The execution of the certificate constitutes an oath or
affirmation, under the penalties of false swearing under Title 17-A, section
453, that, to the best of the signers' knowledge and belief, the facts stated in
the certificate are true (Section 424.3.).
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
FORM NO. MLPA-6A Rev. 7/96 TEL. (207) 287-4195
<Page>
THIRD AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT AND CERTIFICATE OF
LIMITED PARTNERSHIP OF PERC MANAGEMENT COMPANY,
RENAMED PERC MANAGEMENT COMPANY LIMITED PARTNERSHIP
THIRD AMENDMENT made as of this 2nd day of January, 1998 to the FIRST AMENDED
AND RESTATED AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP OF PERC MANAGEMENT
COMPANY, as amended (the "Partnership Agreement"), by and among the undersigned,
being all of the Partners, both General and Limited, of PERC Management Company
(the "Partnership").
WHEREAS, the Partnership exists pursuant to the Partnership Agreement dated May
14, 1986 and filed with the office of the Secretary of State of Maine on May 20,
1986, as amended by the First and Second Amendments to the Partnership
Agreements dated February 26, 1992 and March 18, 1982; and
WHEREAS, the Partners of the Partnership desire to amend the partnership
Agreement in order to provide for a change in the percentage of ownership
interests between PERC, Inc. and KTI Limited Partners, Inc.; and
WHEREAS, the Partners of the Partnership desire to adopt a form of Restated
Certificate of Limited Partnership in the form attached to simplify the
Partnership's filings with the Maine Secretary of State.
NOW THEREFORE, in consideration of the mutual covenants contained herein and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Section 5.1 of the Partnership Agreement is amended to read in its entirety
as follows:
5.1 NET CASH FLOW. Commencing on the date hereof and continuing
through the term of the Partnership, the Partnership shall distribute Net
Cash Flow as follows: 87.3 percent to PERC, Inc. and 12.7 percent to KTI
Limited Partners, Inc.
2. That the Partnership adopt the form of Restated Certificate in the form
attached hereto as Exhibit A to be filed with the Maine Secretary of State.
3. This Agreement shall be deemed to be effective for all purposes as of
January 1, 1998. Except as hereby expressly amended, the partnership
Agreement, as previously amended, is reaffirmed.
4. This Agreement may be executed in counterparts, each one of which shall be
considered an original, and all of which, when taken together, shall
constitute one and the same agreement.
<Page>
IN WITNESS WHEREOF, the undersigned have executed the foregoing instrument as of
the date and year first above written.
GENERAL PARTNER
PERC, Inc. [Delaware]
By: /s/ Martin J. Sergi
-----------------------
Martin J. Sergi
Its President and
Chief Financial Officer
LIMITED PARTNER
KTI Limited Partners, Inc.
By: /s/ Martin J. Sergi
-----------------------
Its President
<Page>
DOMESTIC Filing Fee $20.00
LIMITED PARTNERSHIP
File No. 19860013LP Pages 2
STATE OF MAINE Fee Paid $ 20
DCN 2021641400143 AGRO
CHANGE OF REGISTERED AGENT -----------FILED--------------
ONLY OR 06/03/2002
CHANGE OF REGISTERED AGENT
AND REGISTERED OFFICE /s/ Julie L. Flynn
---------------------------
Deputy Secretary of State
A TRUE COPY WHEN ATTESTED BY SIGNATURE
Perc Management Company Limited Partnership
- ------------------------------------------- ---------------------------
(Name of Limited Partnership) Deputy Secretary of State
Pursuant to 31 MRSA Section 407.2 and Section 422.3.D., the undersigned limited
partnership gives notice of the following change(s):
FIRST: The name of the registered agent and the address of the registered
office appearing on the record in the Secretary of State's office are
Bradley Hughes
----------------------------------------------------------------------
(name)
c/o KTI, Inc. 110 Main Street, Suite #103, Saco, ME 04072
----------------------------------------------------------------------
(street, city, state and zip code)
SECOND: The name of its successor registered agent, an individual Maine
resident or a corporation, foreign or domestic, authorized to do
business or carry on activities in Maine, and the address of the new
registered office shall be
CT Corporation System
----------------------------------------------------------------------
(name)
One Portland Square, Portland, Maine 04101
----------------------------------------------------------------------
(physical location (not P.O. Box), city, state and zip code)
----------------------------------------------------------------------
(mailing address if different from above)
<Page>
DATED May 29, 2002
GENERAL PARTNER(S)*
- -------------------------------------- -------------------------------------
(signature) (type or print name)
FOR GENERAL PARTNER(S) WHICH ARE ENTITIES
Name of Entity PERC, Inc.
-----------------------------------------------------------------
By /s/ Richard A. Norris Richard A. Norris, Treasurer
---------------------------------- -------------------------------------
(authorized signature) (type or print name and capacity)
THE FOLLOWING SHALL BE COMPLETED BY TITLE REGISTERED AGENT UNLESS THIS DOCUMENT
IS ACCOMPANIED BY FORM MLPA-18 (Section 407.1-A.).
The undersigned hereby accepts the appointment as registered agent for the above
named limited partnership.
REGISTERED AGENT DATED
-------------------------
- -------------------------------------- -------------------------------------
(signature) (type or print name)
FOR REGISTERED AGENT WHICH IS A CORPORATION
Name of Corporation CT Corporation System
------------------------------------------------------------
TAMMY TOFTEROO
By /s/ Tammy Tofteroo VICE PRESIDENT
---------------------------------- -------------------------------------
(authorized signature) (type or print name and capacity)
* Certificate MUST be signed by
(1) at least one GENERAL PARTNER OR
(2) any duly authorized person.
The execution of the certificate constitutes an oath or affirmation under the
penalties of false swearing under Title 17-A, section 453.
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
FORM NO. MLPA-3 Rev. 8/2000 TEL. (207) 287-4195
<Page>
Filing Fee $35.00
(If amending ONLY Item FOURTH filing
fee $20.00)
DOMESTIC File No. 19860013LP Pages 2
LIMITED PARTNERSHIP Fee Paid $ 20
DCN 2021651400005 GPAD
-----------FILED------------
06/03/2002
STATE OF MAINE
/s/ Julie L. Flynn
----------------------------
Deputy Secretary of State
CERTIFICATE OF AMENDMENT
A TRUE COPY WHEN ATTESTED BY SIGNATURE
Perc Management Company Limited Partnership
- ------------------------------------------- ----------------------------
(Name of Limited Partnership) Deputy Secretary of State
Pursuant to 31 MSRA Section 422, the undersigned limited partnership executes
and delivers for filing this certificate of amendment:
FIRST: The name of the limited partnership has been changed to (if no change,
so indicate)
No Change
----------------------------------------------------------------------
(The name must contain one of the following: "Limited Partnership",
"L.P." or "LP"; Section 403.1.A and Section 524.1.B.)
SECOND: The name and business, residence or mailing address of each NEW
general partner is (if no change, so indicate):
NAME ADDRESS
No Change
---------------------------- -------------------------------------
---------------------------- -------------------------------------
---------------------------- -------------------------------------
/ / Names and addresses of additional new general partners are
attached hereto to Exhibit ___, and made a part hereof.
THIRD: The name of each WITHDRAWING general partner is (if no change, so
indicate):
No Change
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
/ / Names of additional withdrawing general partners attached hereto
as Exhibit ____, and made a part hereof.
FOURTH: If the business, residence or mailing address of any general partner
has changed, the new address is (if no change, so indicate):
NAME NEW ADDRESS
Perc, Inc. 110 Main Street, Suite 1308, Saco, ME
04072
---------------------------- -------------------------------------
---------------------------- -------------------------------------
---------------------------- -------------------------------------
/ / Names and new addresses of general partners are attached hereto as
Exhibit ____, and made a part hereof.
<Page>
FII Other amendments to the certificate, if any, that the partners
determine to adopt are set forth in Exhibit ___ attached hereto and
made a part hereof.
DATED May 28, 2002
GENERAL PARTNER(S)*
- -------------------------------------- -------------------------------------
(signature) (type or print name)
- -------------------------------------- -------------------------------------
(signature) (type or print name)
- -------------------------------------- -------------------------------------
(signature) (type or print name)
FOR GENERAL PARTNER(S) WHICH ARE ENTITIES
Name of Entity Perc, Inc.
-----------------------------------------------------------------
By /s/ Richard A. Norris Richard A. Norris, Treasurer
---------------------------------- -------------------------------------
(authorized signature) (type or print name and capacity)
Name of Entity
-----------------------------------------------------------------
By
---------------------------------- -------------------------------------
(authorized signature) (type or print name and capacity)
Name of Entity
-----------------------------------------------------------------
By
---------------------------------- -------------------------------------
(authorized signature) (type or print name and capacity)
* Certificate MUST be signed by
(1) at least one GENERAL PARTNER AND
(2) each NEW GENERAL PARTNER OR
(2) any duly authorized person.
The execution of the certificate constitutes an oath or affirmation under the
penalties of false swearing under Title 17-A, section 453.
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
FORM NO. MLPA-9 Rev. 4/16/2001 TEL. (207) 624-7740