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Hagedorn Partnership, L.P.
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SCHEDULE 13D/A
Dec 11, 6:35 PM ET
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SCOTTS MIRACLE-GRO CO SCHEDULE 13D/A
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Contents
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Article 1. ORGANIZATION.
1.1 Formation of Limited Partnership. The Partnership is a limited partnership formed pursuant to the provisions of the Delaware Revised Uniform Limited Partnership Act (6 Del. Code Ann. title 6 §§ 17-101 et seq., as amended, the “Delaware Act”) and in accordance with the further terms and provisions hereof.
1.2 Name. The name of the Partnership shall be “Hagedorn Partnership, L.P.” or such other name or names as may be selected by the General Partners from time to time with written notice given to the Limited Partners of such change, and its business shall be carried on in such name with such variations and changes as the General Partners deem necessary to comply with requirements of the jurisdictions in which the Partnership’s operations are conducted.
1.3 Purpose. The Partnership is organized for the object and purpose of engaging in any lawful act or activity which a limited partnership may engage in under Delaware law, including, but not limited to, holding the Scotts Securities, cash and other securities.
1.4 Places of Business. The Partnership shall have its principal place of business at such place or places as the General Partners may, from time to time, select. The Partnership may from time to time have such additional place or places of business within or without the State of Delaware as may be designated by the General Partners.
1.5 Registered Office and Agent in Delaware. The address of the Partnership’s registered office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company.
1.6 Fiscal Year. The fiscal year of the Partnership shall end on the 31st day of December in each year, or such other year required under the Code.
1.7 Powers. Subject to the provisions of sections 5.1, 11.1 and 11.2, the Partnership, and the General Partners acting on behalf of the Partnership, shall be empowered to do or cause to be done, or not to do, any and all acts deemed by the General Partners in their sole discretion to be necessary or appropriate in furtherance of the purposes of the Partnership.
Article 2. PARTNERS.
2.1 General and Limited Partners. Immediately following the execution of the Sixth Amended and Restated Partnership Agreement, the Partnership consisted of (a) Nathan Baxter, James Hagedorn, Katherine Hagedorn Littlefield, Robert Hagedorn and Susan Hagedorn, as General Partners, and successors to such General Partners pursuant to section 10.2, and (b) the holders of limited partnership interests listed in Schedule A, and Substitute Limited Partners admitted to the Partnership pursuant to section 7.3 (collectively, the “Partners”). For the avoidance of doubt, immediately following the execution of the Fifth Amended and Restated Partnership Agreement, the term “General Partner” ceased to include Paul Hagedorn.
2.2 Liability of General Partners. Neither the General Partners nor any of their Affiliates, as well as any officer, director, stockholder, partner, employee, agent or assign of the General Partners or any of their Affiliates (collectively, the “Related Persons”) shall be liable, responsible or accountable, whether directly or indirectly, in contract or tort or otherwise, to the Partnership or to any Partner (or any Affiliate thereof) for any Damages asserted against or suffered or incurred by the Partnership or any Partner (or any of their respective Affiliates) arising out of, relating to or in connection with any act or failure to act pursuant to this Agreement or otherwise with respect to the management or conduct of the business and affairs of the Partnership or any of its Affiliates including, without limitation, all (i) activities in the conduct of the Partnership’s business, and (ii) activities
in the conduct of other business engaged in by it (or by them) which might involve a conflict of interest vis-à-vis the Partnership or any Partner (or any of their respective Affiliates) or in which any Related Person realizes a profit or has an interest, except, in each case, Damages resulting from the acts or omissions of such Related Person which (x) were taken or omitted in bad faith, (y) constituted intentional misconduct or (z) constituted a knowing violation of law, and which in any such case have not been authorized or ratified by the Limited Partners; provided that no action or failure to act on the part of any broker or other agent of either the Partnership or the General Partners shall be deemed to be an action or failure to act, or result in liability on the part, of the General Partners or of any other Person whose liabilities are governed by this section 2.2. For purposes of this Agreement, no action or failure to act on the part of any Related Person in connection with the management or conduct of the business and affairs of such Related Person or any other Related Person and other activities of such Related Person which involve a conflict of interest with the Partnership or any Partner (or any of their respective Affiliates) or in which such Related Person realizes a profit or has an interest shall constitute, per se, bad faith, intentional misconduct or a knowing violation of law. Any Related Person may consult with counsel, accountants and other professional advisors in respect of the affairs of the Partnership and each Related Person shall be deemed not to have acted in bad faith or to have engaged in intentional misconduct with respect to any action or failure to act, and shall be fully protected and justified in so acting or failing to act, if such action or failure to act is in accordance with the advice or opinion of such counsel, accountants or other professional advisors, except for actions or failures to act by such Related Person which constitute a knowing violation of law which in any such case has not been authorized or ratified by the Limited Partners.
2.3 Limited Liability of Limited Partners. Except as provided in section 2.4, the liability of each Limited Partner is limited to its obligation to make Capital Contributions pursuant to Article 3, which obligations are enforceable only by the Partnership and the General Partners but not by creditors of the Partnership, and nothing elsewhere set forth in this Agreement or in any other document, and nothing arising from any other transaction whatsoever between or among any or all of the Partners or the Partnership, shall have the effect of removing, diminishing or otherwise affecting such limitation.
2.4 No Obligation to Replenish Negative Capital Account. No Partner shall have any obligation at any time to contribute any funds for the purpose of replenishing any negative balance in its Capital Account.
2.5 Partnership Property; Partnership Interests. No real or other property of the Partnership shall be deemed to be owned by any Partner individually, but shall be owned by and title shall be vested solely in the Partnership. The interests of the Partners in the Partnership shall constitute personal property.
Article 3. CAPITAL CONTRIBUTIONS, CAPITAL ACCOUNTS, ALLOCATIONS.
3.1 Capital Contributions. Concurrently with the formation of the Partnership, the partners as of such date contributed Securities to the capital of the Partnership, as set forth more fully in Schedule A hereto (the “Initial Capital Contribution”). (All contributions to the capital of the Partnership, whenever made, are referred to collectively as the “Capital Contributions”). Capital Contributions consisting of property other than cash shall be deemed made in an amount equal to the Fair Market Value of such property on the date of contribution. Any additional Capital Contributions shall be made in such manner as may be specified by the General Partners.
3.2 Capital Accounts.
3.3 Allocations to Capital Accounts.
3.4 Tax Allocations. Items of income, gain, loss, deduction and credit realized by the Partnership shall, for each fiscal period, be allocated, for federal, state and local income tax purposes, among the Partners in the same manner as the Income or Losses (or other items specially allocated pursuant to section 3.5) of which such items are components were allocated pursuant to section 3.3, subject, however, to any adjustment required to comply with Treasury Regulations Section 1.704-1(b). Income, gains, losses and deductions with respect to any property contributed to the capital of the Partnership shall, solely for income tax purposes, be allocated among the Partners so as to take account of any variation between the adjusted basis of the property to the Partnership for federal income tax purposes and its Fair Market Value at the time of contribution in accordance with Code Section 704(c) and the Treasury Regulations thereunder as amended from time to time.
3.5 Special Allocations.
3.6 Special Corrective Allocations.
Article 4. DISTRIBUTIONS.
4.1 No Right to Withdraw. No Partner shall have the right to withdraw or demand distributions of any amount in its Capital Account, except as expressly provided in this Article 4.
4.2 Liquidating Distributions. Distributions made in connection with the termination and dissolution of the Partnership shall be made in accordance with section 9.2.
4.3 Distributions. Subject to section 4.4, the General Partners shall cause the Partnership to make distributions as follows:
4.4 Distributions in Kind. Any property other than cash that is distributed pursuant to the determination of the General Partners, in their sole discretion, shall be deemed to be sold for such property’s Fair Market Value (net of any liabilities secured by such property that the recipient Partners are considered to assume or take subject to under Section 752 of the Code). Any gain or loss associated with such deemed sale shall be included in determining Income or Expenses for the applicable fiscal period specified in section 3.3(c). Any such distributions shall be made after giving effect to the allocations required by section 3.3, adjustments to Capital Accounts in respect of distributions of such property shall reflect such Fair Market Value and all such distributions shall be made in the same respective proportions as distributions would at the time be made pursuant to sections 4.3(a) or 9.2(c) as if the net proceeds deemed realized in any deemed sale were “Net Proceeds” or “Available Cash”, as appropriate. The Partnership shall not distribute any property if the fair value of the distribution would exceed the recipient Partner’s Capital Account.
4.5 [Reserved].
4.6 Restrictions on Distributions. The foregoing provisions of this Article 4 to the contrary notwithstanding, no distribution shall be made (a) if such distribution would violate any contract or agreement to which the Partnership is then a party or any law or rule, regulation, order or directive of any Governmental Authority then applicable to the Partnership, (b) to the extent that the General Partners, in their sole discretion, determine that any amount otherwise distributable should be retained by the Partnership to pay, or to establish a reserve for the payment of, any liability or obligation of the Partnership, whether liquidated, fixed, contingent or otherwise, or (c) to the extent that the General Partners, in their sole discretion, determine that the cash available to the Partnership is insufficient to permit such distribution.
Article 5. MANAGEMENT.
5.1 Management by General Partners. The Partnership shall be managed exclusively by the General Partners. No Limited Partner, in its capacity as a Limited Partner, shall take part in the control of the business of the Partnership, nor shall any Limited Partner, in its capacity as a Limited Partner, have any right or authority to act for or bind the Partnership. The General Partners shall cause the Partnership to retain such professionals and other advisors as the General Partners deem necessary and proper, including hiring an accountant to assist with the maintenance of books and other matters contemplated by sections 6.1 and 6.2.
5.2 Third Party Reliance. Third parties dealing with the Partnership are entitled to rely conclusively upon the authority of the General Partners as set forth in this Agreement.
5.3 Other Activities of Partners; Protected Information.
5.4 Certain Filings. A certificate of limited partnership of the Partnership was filed on May 1, 1995 with the Secretary of State of the State of Delaware. The General Partners are hereby authorized to execute, acknowledge, file and cause to be published, as appropriate, to execute or cause to be executed all other instruments, certificates, notices and documents, and to do or cause to be done all such filing, recording, publishing and other acts as may be deemed by the General Partners in their sole
discretion to be necessary or appropriate from time to time to comply with all applicable requirements for the formation or operation or, when appropriate, termination of a limited partnership in the State of Delaware and all other jurisdictions where the Partnership does or shall desire to conduct its business.
5.5 Expenses. The Partnership shall pay all expenses relating to its existence, administration and business, including, without limitation: (a) any expenses incurred in connection with the organization of the Partnership, (b) all ordinary out-of-pocket costs relating to the investigation or development of Partnership investment opportunities, whether or not any such investment is made, (c) all ordinary day-to-day expenses of the General Partners incurred in the performance of duties on behalf of the Partnership, including attorneys’ fees, auditors’ fees, other professional fees, and the compensation and personnel expenses of its employees, (d) ordinary administrative expenses of the Partnership, including, without limitation, attorneys’ fees, auditors’ fees, other professional fees and the costs and expenses of meetings and reports held or prepared and provided pursuant to Article 6, (e) all extraordinary expenses, including, without limitation, expenses arising from or relating to litigation, investigations, proceedings, judgments, settlements, the indemnities provided for in Article 8, governmental or regulatory inquiries, or public relations undertakings, and (f) expenses incurred in connection with Partnership investments that are properly treated as capital items.
5.6 General Partner Representative. A General Partner may be represented (including the right to vote on behalf of such General Partner), at any time, and from time to time, by (a) a Family Member of an Original General Partner, (b) by one of the other General Partners, or (c) any other individual who is approved by the General Partners in accordance with section 5.7(a), provided, in any such case, written notice of such representation, in the form of Exhibit 1, is provided to the Chair of the Partnership by the General Partner who desires to be represented at least two days prior to the time such General Partner desires such representative to act for the General Partner. The foregoing prior notice requirement may be waived by the Chair, in the Chair’s discretion, or by vote of the General Partners.
5.7 Voting; Proxies.
5.8 Meetings. The General Partners shall meet at least once in every year, and such meeting shall be held on a date and in a place to be determined by the General Partners. Meetings of General Partners may also be held if so called by any two General Partners on at least ten days’ notice to the other General Partners. Meetings of General Partners may be conducted by means of conference telephone or similar communications equipment enabling all persons participating in the meeting to hear each other.
5.9 Chair.
Article 6. BOOKS OF ACCOUNT, RECORDS AND REPORTS.
6.1 Maintenance of Books and Records, Etc. The Partnership shall maintain books and records on the basis utilized in preparing the Partnership’s federal income tax return, incorporating the accrual or cash method of accounting, as the General Partners may in their sole discretion determine to be in the best interest of the Partnership, and such other records as may be required in connection with the preparation and filing of the Partnership’s federal and state income tax returns or other tax returns or reports, including, without limitation, the records reflecting the Capital Accounts and allocations thereto specified in Article 3. All such books and records shall at all times be made available at the principal office of the Partnership and shall be open to the reasonable inspection and examination of the Partners or their duly authorized representatives during normal business hours upon three Business Days’ prior written notice. The
Partnership shall promptly furnish a list of names and addresses of all Partners to any Partner who requests such a list in writing for any proper purpose. The General Partners shall be entitled to make any elections for tax purposes, including the election under Section 754 of the Code, as the General Partners may in their sole discretion determine to be in the best interest of the Partnership. The General Partners shall cause to be duly prepared and distributed to the General Partners quarterly reports as to the Partnership’s financial condition and results of operation.
6.2 Federal, State and Local Income Tax Information.
6.3 Permitted Advisors. Each General Partner may bring one financial, legal or other advisor to Partnership meetings, subject to such reasonable limitations as the General Partners may from time to time agree.
6.4 Shareholders Representative. For so long as the Merger Agreement requires or permits the Shareholders (as such term is defined therein) to designate a Shareholders Representative (as such term is defined therein), the Chair shall act as such Shareholders Representative. It shall be the duty of the Shareholders Representative to communicate faithfully and accurately the decisions and instructions of the Partnership to Scotts and to consult regularly with the General Partners on all matters relating to Scotts which require the Shareholders Representative to communicate with Scotts on behalf of the Partnership. No General Partner who is not also the Shareholders Representative shall communicate to Scotts officially on behalf of the Partnership.
Article 7. TRANSFER OF PARTNERSHIP INTERESTS; SUBSTITUTE LIMITED PARTNERS.
7.1 General.
7.2 Effect of Retirement, Withdrawal, Bankruptcy, Dissolution, Death, Etc. of Limited Partner. The retirement, withdrawal, bankruptcy, dissolution, death, incapacity or adjudication of incompetency of a Limited Partner shall not dissolve the Partnership, and the Partnership shall continue in a reconstituted form if necessary, without any action on the part of the remaining Partners. The trustee, executor, administrator, committee or guardian of the Limited Partner or of the Limited Partner’s estate, as the case may be, shall have all the rights of the Limited Partner for the purpose of settling or managing the estate and such power as the bankrupt, deceased or incompetent Limited Partner possessed to assign all or part of the Limited Partner’s interest in the Partnership; provided that any such trustee, executor, administrator, committee or guardian shall become a Substitute Limited Partner only upon compliance with the provisions of section 7.3.
7.3 Substitute Limited Partners. No Assignee of all or any part of an interest of a Limited Partner in the Partnership shall be admitted to the Partnership as a substitute Limited Partner (a “Substitute Limited Partner”) unless and until (a) the General Partners have consented in writing to such admission (the granting or denial of which shall be in the sole and absolute discretion of the General Partners), except as otherwise provided in section 7.1(a); (b) the Assignee has executed a counterpart of this Agreement (as then modified or amended from time to time) and such other instruments as the General Partners may reasonably deem necessary to confirm the undertaking of the Assignee to be bound by all the terms and provisions of this Agreement; and (c) the Assignee has undertaken in writing to pay all expenses incurred by the Partnership in connection with such assignment and substitution. Unless and until an Assignee of a Partnership interest
becomes a Substitute Limited Partner, such Assignee shall not be entitled to exercise any vote or consent with respect to such Partnership interest.
Article 8. INDEMNIFICATION OF GENERAL PARTNERS.
8.1 In General.
8.2 Not Liable for Return of Capital. Neither the General Partners nor any Affiliate, partner, employee or agent of the General Partners or of any such Person shall be personally liable for the return of the Capital Contributions of any Limited Partner or any portion thereof or interest thereon, and such return shall be made solely from available Partnership assets, if any.
Article 9. DURATION AND TERMINATION OF THE PARTNERSHIP.
9.1 Term. The existence of the Partnership shall commence on the date of the filing of a certificate of limited partnership pursuant to this Agreement and the Delaware
Act (the “Filing Date”) and shall continue until the first to occur of the following events (an “Event of Termination”):
9.2 Winding-Up. Upon the occurrence of an Event of Termination, the Partnership shall be dissolved and wound up. In connection with the dissolution and winding-up of the Partnership, the General Partners or, if there are no General Partners, a liquidator or other representative (a “Representative”) appointed by the Limited Partners shall proceed with the sale or liquidation of all of the assets of the Partnership (including the conversion to cash or cash equivalents of its notes or accounts receivable) in a manner reasonably calculated to maximize value and shall apply and distribute the proceeds of such sale or liquidation in the following order of priority, unless otherwise required by mandatory provisions of applicable law:
9.3 Distributions in Cash or in Kind. Upon dissolution, the General Partners or the Representative, as the case may be, may at their or its discretion, as the case may be, (a) liquidate all or a portion of the Partnership assets and apply the proceeds of such liquidation in the manner set forth in section 9.2 or (b) hire independent appraisers to appraise the value of Partnership assets not sold or otherwise disposed of (the cost of such appraisal to be considered a debt of the Partnership) or determine the Fair Market Value of such assets, and allocate any unrealized gain or loss determined by such valuation to the Partner’s respective Capital Accounts as though the properties in question had been sold on the date of distribution and, after giving effect to any such adjustment, distribute said assets in the manner set forth in section 9.2; provided that the General Partners or Representative shall in good faith attempt to liquidate sufficient Partnership assets to satisfy in cash the debts and liabilities described in section 9.2.
9.4 Time for Liquidation. A reasonable amount of time shall be allowed for the orderly liquidation of the assets of the Partnership and the discharge of liabilities to creditors so as to enable the General Partners or Representative to minimize the losses attendant upon such liquidation.
9.5 Termination. Upon compliance with the foregoing distribution plan, the Partnership shall cease to be such, and the General Partners or Representative shall execute, acknowledge and cause to be filed with the Secretary of State of the State of Delaware a certificate of termination of the Partnership pursuant to the power of attorney contained in Article 13.
Article 10. RETIREMENT, ETC. OF GENERAL PARTNERS.
10.1 Effect of Retirement, Withdrawal, Bankruptcy, Death, Etc. of the General Partners. In the event of the retirement, Prohibited Withdrawal, bankruptcy, death, dissolution, liquidation or adjudication of incompetency (which term shall include, but not be limited to, insanity) (a “Disabling Event”) of any General Partner, the Partnership shall not be dissolved and wound up as provided in section 9.2 unless within 90 days 100% of the remaining General Partners consent in writing to the dissolution and winding up of the operations of the Partnership.
10.2 Successors to General Partners.
10.3 Termination of Representation and Proxy. When an individual succeeds a General Partner in accordance with section 10.2 (such General Partner, a “Predecessor GP”), any appointment of a representative of such Predecessor GP pursuant to section 5.6, and any proxy given by such Predecessor GP pursuant to section 5.7(c) shall cease to have any force or effect.
10.4 Successor to Class C Representative.
Article 11. AMENDMENTS.
11.1 Approval of Amendments. This Agreement may be modified or amended only with the approval of the General Partners in accordance with the vote requirement
of section 5.7(b) hereof; provided, however, and notwithstanding section 5.7(b), Schedule D may be modified or amended with the approval of the General Partners in accordance with the vote requirement of section 5.7(a).
11.2 Amendments by General Partners. The General Partners shall have the authority to amend or modify this Agreement in accordance with the vote requirement of section 5.7(b) (or, in the case of Schedule D, section 5.7(a)) to the full extent permitted by law without any vote or other action by the other Partners.
Article 12. DEFINITIONS; ACCOUNTING TERMS.
12.1 Definitions. As used herein the following terms shall have the following respective meanings:
12.2 Accounting Terms and Determinations. All accounting terms used in this Agreement and not otherwise defined shall have the meaning accorded to them in accordance with generally accepted accounting principles (“GAAP”) and, except as expressly provided herein, all accounting determinations shall be made in accordance with GAAP, consistently applied.
Article 13. LIQUIDITY PROVISIONS
13.1 Optional Cash Distributions.
13.2 Loans to Partners. The General Partner or the Class C Representative as applicable, for any relevant class, may, in his or her sole discretion designate one Partner from such class as the “Borrowing Partner” for such class, such designation to be made in writing (which may include an email) to the General Partners; provided that James Hagedorn shall be designated as the Borrowing Partner with respect to Class A. The Borrowing Partner may from time to time request in writing, using the form of Partnership Loan Request attached hereto as Exhibit 3 or such other form as may be approved by the Chair upon the advice of the Advisors, that the Partnership use its reasonable efforts to borrow under the Credit Agreement and/or under any other line or lines of credit then available to the Partnership (together, the “Credit Facilities”) and lend the Maximum Amount (as hereinafter defined) to the Borrowing Partner on a revolving basis (each such loan, a “Partnership Loan”), against the execution and delivery of (a) a Promissory Note in the form attached hereto as Exhibit 4 and (b) a Partnership Interest Pledge Agreement in the form attached hereto as Exhibit 5 pursuant to which such Borrowing Partner pledges (i) a number of their limited partnership interests to the Partnership as security for any outstanding Partnership Loans (the “Collateral”) such that at the time any Partnership Loan is advanced, the Fair Market Value of the Allocable Scotts Securities with respect to the Collateral shall be at least equal to the product of (x)
1.4 multiplied by (y) the outstanding principal amount of the Borrowing Partner’s Partnership Loans after giving pro forma effect to the requested advance and (ii) at any time that the Fair Market Value of the Allocable Scotts Securities with respect to the Collateral shall be less than the product of (x) 1.2 multiplied by (y) the outstanding principal amount of the Borrowing Partner’s Partnership Loans, such Borrowing Partner shall either prepay such Partnership Loan in whole or in part and/or pledge Other Collateral (as defined in the Partnership Interest Pledge Agreement) such that the Fair Market Value of the Collateral and any Other Collateral shall be at least equal to the product of (x) 1.4 multiplied by (y) the outstanding principal amount of the Borrowing Partner’s Partnership Loans. Each Partnership Loan shall have a one-year term unless otherwise agreed by the Partnership and the Borrowing Partner. The “Maximum Amount” means: [***]. The Partnership shall have sole discretion to grant or deny any request for a Partnership Loan and may consider any relevant factors, including the proposed use of borrowed funds and preserving availability for other Borrowing Partners. All Partnership Loan related decisions, including approval of such Partnership Loans and any modifications to the terms thereto, shall require the affirmative vote of not less than three-fifths of the total votes entitled to be cast by the General Partners.
13.3 Certain Limitations. Notwithstanding anything in this Article 13 to the contrary, the Partnership shall not take any action provided for in this Article 13 if:
Article 14. OTHER TAX MATTERS.
14.1 Partnership Representative.
14.2 Tax Liability. If (i) the Partnership incurs any obligation to pay a Tax Liability in respect of the Partnership, (ii) the Partnership incurs a Tax Liability attributable to a Partner, or (iii) the amount of a payment or distribution of cash or other property to the Partnership is reduced as a result of withholding or payments made by other parties in satisfaction of any Tax Liability, all payments by the Partnership in satisfaction of such Tax Liability, and all reductions in the amount of a payment or distribution that the Partnership otherwise would have received, may be treated pursuant to this section 14.2, in the sole discretion of the Partnership, as deemed distributed to those Partners or former Partners to which the related Tax Liability is attributable. The Partnership, after consulting with its Advisors, shall determine the amount, if any, of any Tax Liability attributable to any Partner.
14.3 Tax Indemnity. Each Partner agrees that, to the extent that (i) the Partnership determines that all or part of any Tax Liability allocable to a Partner (or former Partner) should not be treated as deemed distributed under section 14.2, and (ii) the Partnership notifies the Partner of the amount that is not so treated, the Partner will promptly indemnify the Partnership for such amount. Each Partner covenants for itself, its successors, assigns, heirs and personal representatives, that such Person shall pay any indemnity described in this section 14.3 not later than thirty (30) days after the Partnership delivers a written demand for such amounts. The obligations and covenants of the Limited Partners set forth in this section 14.3 shall survive the Transfer or withdrawal by any Partner of the whole or any portion of its limited partnership or general partnership interest, the death or legal disability of any Partner, and the dissolution or termination of the Partnership.
Article 15. MISCELLANEOUS.
15.1 Waiver of Partition. Each of the Partners hereby irrevocably waives any and all rights that such Partner may have to maintain any action for partition of any of the Partnership’s property.
15.2 Entire Agreement. This Agreement and the agreements and documents expressly referred to herein constitute the entire agreement among the parties with respect to the subject matter hereof. They supersede any prior agreement or understanding among such parties.
15.3 Choice of Law. THIS AGREEMENT AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE PRINCIPLES GOVERNING CONFLICTS OF LAWS.
15.4 Successors and Assigns. Except as herein otherwise specifically provided, this Agreement shall be binding upon and inure to the benefit of the parties and their legal representatives, heirs, administrators, executors, successors and assigns.
15.5 Interpretation. Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in the masculine, the feminine or neuter gender shall include the masculine, the feminine and the neuter.
15.6 Captions. Captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provision hereof.
15.7 Severability. If any provision of this Agreement, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to Persons or circumstances other than those to which it is held invalid, shall not be affected thereby.
15.8 Counterparts. This Agreement may be executed in one or more counterparts, which may include facsimile counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. It shall not be necessary for all Partners to execute the same counterpart hereof.
15.9 Additional Documents. Subject to the provisions of this Agreement, each party hereto agrees to execute, with acknowledgment or affidavit, if required, any and all documents and writings which may be necessary or expedient in connection with the creation of the Partnership and the achievement of its purposes, specifically including (a) any amendments to this Agreement and such certificates and other documents as the General Partners deem necessary or appropriate to form, qualify or continue the Partnership as a limited partnership (or a partnership in which the Limited Partners have limited liability) in all jurisdictions in which the Partnership conducts or plans to conduct business and (b) all such agreements, certificates, tax statements, tax returns and other documents as may be required of the Partnership or its Partners by the laws of the United States of America, the State of Delaware or any other jurisdiction in which the Partnership conducts or plans to conduct business, or any political subdivision or agency thereof.
15.10 Non-Waiver. No provision of this Agreement shall be deemed to have been waived unless such waiver is contained in a written notice given to the party claiming such waiver has occurred; provided that no such waiver shall be deemed to be a waiver of any other or further obligation or liability of the party or parties in whose favor the waiver was given.
15.11 Manner of Consent. Any vote, consent, approval, or ratification permitted or required by this Agreement (a “Consent”) by a Partner (a “Consenting Partner”) may be given as follows:
15.12 Notices. Unless otherwise specified in this Agreement all notices and demands under this Agreement must be in writing and are effective upon receipt thereof. For purposes of notice, the addresses of the Limited Partners and the General Partners shall be as set forth on the books and records of the Partnership and the address of the Partnership shall be as set forth in section 1.4. Any Partner or its assignee may designate a different address to which notices or demands shall thereafter be directed and such designation shall be made by written notice given in the manner hereinabove required and, in the case of a Limited Partner or its assignee, directed to the Partnership at its offices as hereinabove set forth. Notices to any assignee of a Limited Partner shall be given to such Limited Partner unless such assignee has designated a different address therefor by written notice given in the manner hereinabove required.
15.13 Grant of Power of Attorney. Each Limited Partner hereby irrevocably constitutes and appoints the General Partners as its true and lawful attorneys and agents, in its name, place and stead to make, execute, acknowledge and, if necessary, file and record:
15.14 Irrevocable and Coupled with an Interest; Copies to Be Transmitted. The powers of attorney granted under in section 15.13 shall be deemed irrevocable and to be coupled with an interest. A copy of each document executed by the General Partners pursuant to the powers of attorney granted in section 15.13 shall be transmitted to each Limited Partner promptly after the date of the execution of any such document.
15.15 Survival of Power of Attorney. The powers of attorney granted in section 15.13 shall survive delivery of an Assignment by any Limited Partner of the whole or any part of such Partner’s Partnership interest; provided that if such Assignment was of all of such Limited Partner’s Partnership interest and the substitution of the assignee as a Limited Partner has been consented to by the General Partners, the foregoing powers of attorney shall survive the delivery of such Assignment for the purpose of enabling the General Partners to execute, acknowledge and file any and all certificates and other instruments necessary to effectuate the substitution of the assignee as a Substitute Limited Partner. Such powers of attorney shall survive the death, incapacity, dissolution or termination of a Limited Partner and shall extend to such Limited Partner’s successors and assigns.
15.16 Limitation of Power of Attorney. Except as expressly set forth in section 11.2, the powers of attorney granted under section 15.13 cannot be utilized by the General Partners for the purpose of increasing or extending any financial obligation or liability of a Limited Partner or altering the method of division of profits and losses or the method of distributions in connection with the investment of a Limited Partner without the written consent of such Limited Partner.
15.17 Voting Rights. The Limited Partners shall be permitted to exercise any of the voting rights which may be prescribed from time to time in this Agreement unless, prior to the exercise by the Limited Partners of any specified voting right or rights, the Partnership shall have obtained (and furnished a copy thereof to each Limited Partner) an opinion of counsel for the Partnership acceptable to the Limited Partners to the effect that the exercise of such specified right or rights will adversely affect the limited liability of the Limited Partners.
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