Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Rrt, Inc. 10-K 45± 220K
5: EX-10.CC Agreement of Ltd. Partnership 31± 118K
6: EX-10.FF Assignment Agreement 3 18K
7: EX-10.KK Collateral Mortgage Agrmnt. 7± 30K
8: EX-10.PP Confirmation of Agreement 5± 24K
2: EX-11 Computation Earnings/Share 1 7K
3: EX-22 List of Subsidiaries 1 5K
4: EX-24 Consent of Ind Accts 1 6K
9: EX-27 FDS for Rrt 10-K 1 6K
EX-10.CC — Agreement of Ltd. Partnership
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AGREEMENT OF LIMITED PARTNERSHIP
OF
AMERICAN RRT FIBER SUPPLY, L.P.
TABLE OF CONTENTS
1. PARTIES
1.1 RRT of Pennsylvania, Inc.,
1.2 Resource Recycling Technologies
1.3 American Fiber Supply of Philadelphia, Inc.
1.4 American Power Investors, Inc.
2. DEFINITIONS.
2.1 Affiliate
2.2 Alternate
2.3 APC Partner or APC Partners
2.4 Bonds
2.5 Capital Account
2.6 Certified Public Accountants
2.7 Code
2.8 Commercial Operation Date
2.9 Contribution Ratio
2.10 Deficit Balance
2.11 Development Expenses
2.12 EPC Contract
2.13 Formation Date
2.14 Funding Date
2.15 General Partner or General Partners
2.16 Internal Costs
2.17 Lender
2.18 Limited Partner or Limited Partners
2.19 Management Committee
2.20 Partner or Partners
2.21 Partnership Assets
2.22 Partnership Percentage
2.23 Party or Parties
2.24 Person
2.25 Philadelphia Facility
2.26 Project
2.27 Project Contract
2.28 Representative
2.29 RRT Partner or RRT Partners
2.30 Site
2.31 Tax Matters Partner
3. FORMATION AND PURPOSE; REPRESENTATIONS AND WARRANTIES
3.1 Formation
3.2 Name
3.3 Purpose
3.4 General Representations, Warranties and Covenants
3.5 Offices
4. CAPITAL CONTRIBUTIONS
4.1 Initial Capital Contributions
4.2 Subsequent Capital Contributions
5. RESPONSIBILITY FOR AND REIMBURSEMENT OF DEVELOPMENT EFFORTS AND
EXPENSES; DEVELOPMENT FEE; OPERATIONS AND MAINTENANCE
5.1 Development Efforts
5.2 Development Expenses
5.3 Priority of Payment
5.4 Early Termination
5.5 Operations and Maintenance
5.6 EPC Contract
6. ALLOCATION OF PROFITS AND LOSSES
6.1 Allocation of Net Profits and Losses
6.2 Compliance with Code and Treasury Regulations
7. DISTRIBUTIONS
7.1 Timing and Amount
7.2 Section 754 Election
7.3 Deficit Capital Accounts
8. ACCOUNTING AND TAXATION
8.1 Fiscal Year
8.2 Location of Partnership's Books
8.3 Accounting Principles
8.4 Annual Financial Statements
8.5 Quarterly Financial Statements
8.6 Tax Treatment as Partnership
8.7 Preparation of Tax Returns
8.8 Allocations Among Periods
8.9 Preparation of Reports
8.10 Access to Partnership's Books
8.11 Placement of Partnership Funds
9. MANAGEMENT OF THE PARTNERSHIP.
9.1 Authority of the Management Committee.
9.2 Action by the Management Committee.
9.3 Constitution of Management Committee.
9.4 Meetings of the Management Committee.
9.5 Management Fee.
10. LIMITATION OF LIABILITIES.
10.1 Contract Provision to Limit Claims.
10.2 Liability Among General Partners.
10.3 Limited Liability of Limited Partners.
11. TRANSFER OR PLEDGE OF PARTNERSHIP INTERESTS.
11.1 Permitted Transfers.
11.2 Sale of Controlling Interest.
11.3 Transfer of Partnership Interest.
11.4 Evidences of Ownership.
11.5 Registration Under Securities Laws.
11.6 Opinion of Legal Counsel.
11.7 Third Party Offers
12. TERMINATION.
12.1 General.
12.2 Term.
12.3 Winding Up.
12.4 Dissolutions Constituting Breach of Partnership Agreement.
13. INDEMNITY.
13.1 Indemnification by Partnership.
13.2 Indemnification by Partners
14. RESOLUTION OF DISPUTES.
14.1 Dispute Defined.
14.2 Dispute Resolution.
14.3 Consent to Jurisdiction; Venue.
14.4 Cost.
14.5 Continuation of Performance
15. GENERAL.
15.1 Notices.
15.2 Additional Documents.
15.3 Non-Competition; Independent Activities; Confidentiality.
15.4 Section References.
15.6 Modifications.
15.7 Successors and Assigns.
15.8 Press Releases.
15.9 Severability.
15.10 Counterparts
AMERICAN RRT FIBER SUPPLY, L.P.
AGREEMENT OF LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP, made and entered into as of the
5th day of December, 1994, by and among RRT OF PENNSYLVANIA, INC., RESOURCE
RECYCLING TECHNOLOGIES, INC., AMERICAN FIBER SUPPLY OF PHILADELPHIA, INC. and
AMERICAN POWER INVESTORS, INC.
WITNESSETH:
WHEREAS, the parties desire to form a limited partnership in the
Commonwealth of Pennsylvania to be known as American RRT Fiber Supply, L.P.,
pursuant to the laws of the Commonwealth of Pennsylvania, 15 Pa.C.S. ch. 85, for
the purposes hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. PARTIES. The following are the initial parties to this Agreement:
1.1 RRT of Pennsylvania, Inc., a corporation organized under the
laws of the State of Pennsylvania with its executive offices
at 300 Plaza Drive, Vestal, New York 13850 ("RRT-PA"), as a
General Partner.
1.2 Resource Recycling Technologies, Inc., a corporation organized
under the laws of the State of Delaware, with its executive
offices at 300 Plaza Drive, Vestal, New York 13850 ("RRT"), as
a Limited Partner.
1.3 American Fiber Supply of Philadelphia, Inc., a corporation
organized under the laws of the State of Pennsylvania with its
principal offices at 33 Rock Hill Road, Bala Cynwyd,
Pennsylvania 19004 ("AFS"), as a General Partner.
1.4 American Power Investors, Inc., a corporation organized under
the laws of the State of Delaware with its principal offices
at 33 Rock Hill Road, Bala Cynwyd, Pennsylvania 19004
("APII"), as a Limited Partner.
2. DEFINITIONS.
2.1 Affiliate. Any corporation, partnership or other entity which
directly or indirectly controls, is controlled by, or is under
common control with another Person.
2.2 Alternate. A substitute Representative appointed in accordance
with Section 9.3.
2.3 APC Partner or APC Partners. AFS and APII, individually or
collectively.
2.4 Bonds. The Solid Waste Disposal Facility Revenue Bonds to be
issued by the Philadelphia Authority for Industrial
Development to provide funds to construct the Project.
2.5 Capital Account. A Capital Account to be established for each
Partner consisting of the total capital contributions credited
to the account of a Partner in accordance with Section 4,
adjusted to reflect allocations of income, gain or loss as
provided in this Agreement, that will be maintained in
accordance with Treasury Regulation 1.704-1(b)(2)(iv),
notwithstanding any provision contained herein to the
contrary.
2.6 Certified Public Accountants. A firm of nationally recognized
independent certified public accountants as may be selected
from time-to-time by the Management Committee.
2.7 Code. Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
2.8 Commercial Operation Date. The date on which the Philadelphia
Facility is substantially physically complete and has
completed acceptance testing, or such other date as the
Management Committee determines.
2.9 Contribution Ratio. The amount of each Partner's respective
obligation to make capital contributions expressed as a
percentage of the total capital contributions required in
accordance with Section 4.
2.10 Deficit Balance. A deficit balance in a Partner's Capital
Account, as determined after taking into account all
adjustments required under this Agreement for the taxable year
in question.
2.11 Development Expenses. All reasonable costs and expenses
incurred on behalf of the Partnership by each Partner and its
Affiliates prior to the Funding Date that are (1) directly
related to the Project or the Partnership, (2) in conformance
with the Memorandum of October 6, 1994, attached as Schedule
2.11 to this Agreement, and (3) approved by the Management
Committee; including, without being limited to, all costs of
obtaining regulatory approvals, site purchase option or rental
costs, legal and consultant costs, environmental reports, and
other out-of-pocket expenses, in each case incurred with
respect to the business of the Partnership ("Third Party
Expenses"), and direct and indirect Internal Costs.
2.12 EPC Contract. The Turnkey Contract for the Construction and
Installation of a Paper Processing Facility between the
Partnership and RRT Design & Construction Corp.
2.13 Formation Date. The date the Partnership is formed as provided
in Section 3.
2.14 Funding Date. The date the Bonds are issued.
2.15 General Partner or General Partners. RRT-PA and AFS and any
person admitted to the Partnership as a General Partner
pursuant to the terms of this Agreement, individually or
collectively.
2.16 Internal Costs. Each Party's respective costs for its own
management and other professional personnel (including
associated home office overheads, travel and out-of-pocket
expenses) associated with development of the Project,
including but not limited to the following: (1) direct costs -
salaries, travel expenses, and temporary employee expenses;
and (2) indirect costs -- payroll and general taxes (state,
local, property, FICA and Medicare), insurance (life, health,
disability, workers' compensation, general liability),
employee benefits (pension plan, savings plan, educational
assistance, college matching funds, employee recognitions),
communications (telephone, mail, facsimile, express mail),
rent and lease on office space, equipment and furniture,
recruitment/relocation, dues, memberships and training, office
expenses, insurance and depreciation on owned equipment.
2.17 Lender. A Person(s), not an Affiliate of any Party, which has
committed to purchase the Bonds or otherwise to loan
sufficient funds to the Partnership to reimburse Development
Expenses and to construct the Philadelphia Facility.
2.18 Limited Partner or Limited Partners. RRT and APII, and any
person admitted to the Partnership as a Limited Partner
pursuant to the terms of this Agreement, individually or
collectively.
2.19 Management Committee. The Management Committee formed and
appointed pursuant to Section 9.
2.20 Partner or Partners. Any General Partner or Limited Partner,
individually or collectively.
2.21 Partnership Assets. All right, title and interest presently in
existence and subsequently created by RRT Partners and/or APC
Partners in or pertaining to the development, ownership or
operation of the Philadelphia Facility, including, without
limitation, (1) any and all rights with respect to the Site;
(2) any and all assets pertaining to permitting and technical
work relating to the Philadelphia Facility performed to date;
(3) all right, title and interest in all plans, studies,
drawings, permits, contracts, and licenses relating to the
Philadelphia Facility, except as provided in the EPC Contract
and the Technology License Agreement referred to therein; and
(4) other assets of APC Partners or RRT Partners, if any, that
pertain to the purposes of and are intended by the Parties to
be transferred to the Partnership.
2.22 Partnership Percentage. As to RRT as Limited Partner - 49%, as
to RRT-PA as General Partner - 1%, as to APII as Limited
Partner - 49% and as to AFS as General Partner - 1%, unless
such percentages shall be changed pursuant to Section 11.
2.23 Party or Parties. The entities named as parties in Section 1
of this Agreement.
2.24 Person. An individual, a corporation, voluntary association,
joint stock company, business trust or partnership.
2.25 Philadelphia Facility. The office waste paper recovery
facility to be located in the greater metropolitan area of
Philadelphia, Pennsylvania.
2.26 Project. The undertaking to develop, construct, finance, own
and operate the Philadelphia Facility.
2.27 Project Contract. A Partnership Asset which is a contract.
2.28 Representative. A member of the Management Committee as
provided in Section 9.3.
2.29 RRT Partner or RRT Partners. RRT-PA and RRT, individually or
collectively.
2.30 Site. The building and tract of land located in Philadelphia,
Pennsylvania on which the Philadelphia Facility is to be
constructed, as more specifically identified on Schedule 2.30
hereto.
2.31 Tax Matters Partner. AFS unless and until the Management
Committee elects a successor or AFS resigns. The term as used
herein shall be as defined in the Code.
3. FORMATION AND PURPOSE; REPRESENTATIONS AND WARRANTIES.
3.1 Formation. The parties enter into a limited partnership (the
"Partnership") pursuant to the laws of the Commonwealth of
Pennsylvania, 15 Pa.C.S. ch. 85, on and as of December 5,
1994, the date the Certificate of Limited Partnership was
filed with the Commonwealth of Pennsylvania.
3.2 Name. The name of the Partnership shall be American RRT Fiber
Supply, L.P.
3.3 Purpose. The purposes of the Partnership shall be:
(a) to acquire the Site and to develop, construct, own,
operate, maintain and repair the Philadelphia
Facility and supply recovered paper from office waste
to deinking mills.
(b) to do any and all other acts and things which may be
necessary, incidental or convenient in connection
with the Project.
3.4 General Representations, Warranties and Covenants. Each
Partner represents, warrants and covenants, jointly and
severally in the case of AFS and APII, and in the case of
RRT-PA and RRT, but severally as between the RRT Partners and
the APC Partners, that:
3.4.1 It is validly organized, existing and in
good standing according to the laws of the
state of its organization and it is
qualified to do business in every
jurisdiction in which the failure to so
qualify would have a material adverse effect
on such Partner's ability to perform its
obligations hereunder.
3.4.2 The execution and delivery of this
Agreement, the formation of the Partnership
and the performance hereof will not
contravene any provision of, or constitute a
default under, any indenture, mortgage or
other agreement of such Party or any order
of any court, commission or governmental
agency having jurisdiction.
3.4.3 It has all requisite power and authority to
execute this Agreement and to perform its
obligations hereunder.
3.4.4 This Agreement, when duly executed and
delivered, will constitute the legal, valid
and binding obligation of each Partner
enforceable against it in accordance with
its terms subject, however, to laws of
general application affecting creditors'
rights.
3.4.5 Except as otherwise permitted herein, it
will not borrow money in the Partnership's
name or use the Partnership Assets as
collateral.
3.4.6 It will not enter into any contract
obligating the Partnership without prior
written approval of the Management
Committee.
3.4.7 It will not willfully or knowingly violate
any law or regulation regarding the
Partnership or its business.
3.4.8 To the best of their knowledge, there is no
litigation, action, suit, arbitration,
legal, administrative or other proceeding or
investigation, pending or threatened against
or affecting such Partner or its businesses,
operations, properties, profits or condition
or the Partnership Assets before or by any
governmental agency, court, arbitrator or
grand jury, which is reasonably likely to
result in any material adverse change in its
business, operation, property, profits or
condition or its ability to perform any of
its obligations under this Agreement; nor is
such Partner subject to, or in default with
respect to any judgment, order, writ,
injunction, decree or demand before or by
any governmental agency, court, arbitrator,
or grand jury, which might have consequences
which would adversely affect its businesses,
operations, properties, prospects, profits
or condition; and no one has asserted and,
no one has grounds to assert, any material
claims against the Partnership that would
affect the transaction contemplated by this
Agreement.
3.4.9 No creditor or third party holds or will
acquire, as a result of the execution,
delivery and performance of this Agreement,
any claim, lien, right, title or interest of
any nature whatsoever in, on or to the
Partnership, any Partnership distributions,
the Project, or any Partnership Asset.
3.4.10 No third party consent, authorization,
waiver, approval or other action is
necessary to validly assign to the
Partnership any Partnership Asset currently
in existence (including without limitation
any which is a contract or permit) and upon
execution and delivery of an assignment in
favor of the Partnership, all right, title
and interest in such Partnership Asset will
vest in the Partnership and the Partnership
Asset will remain in full force and effect;
and there have been no indications by a
governmental authority that any Partnership
Asset which is a permit may be adversely
modified, supplemented or withdrawn or that
the Project may not comply with the terms of
a permit.
3.4.11 To the best of their knowledge, each party
to the Project Contracts currently in
existence (if any) has performed in all
material respects all obligations required
to be performed by it, and no Partner or any
other party to any Project Contract has
breached or improperly terminated any
Project Contract, or is in default under any
Project Contract by which it is bound, and
there exists no condition or event that,
after notice or lapse of time or both, would
constitute any such breach, termination or
default or give rise to a right in any party
to such contracts to rescind, terminate or
cancel such contracts. Each of the Project
Contracts (if any) is in full force and
effect, and is a legal, binding and
enforceable obligation of the parties
thereto.
3.4.12 To the best of their knowledge, no document,
certificate, or other writing furnished to
the RRT Partners or to the APC Partners or
their Affiliates by or on behalf of the APC
Partners, or their Affiliates, or to the APC
Partners or their Affiliates, by or on
behalf of the RRT Partners or their
Affiliates, in each case in connection with
the transactions contemplated hereby, which,
when taken as a whole together with all of
the other materials and information provided
to the RRT Partners or the APC Partners (or
their Affiliates), respectively, by or on
behalf of APC Partners or RRT Partners,
respectively, contains any untrue statement
of a material fact or omits to state a
material fact which is: (1) necessary to
make the statements therein, in light of the
circumstances under which they were made,
not misleading, or (2) necessary to provide
a prospective purchaser of the Partnership
interests with all material information as
to the Project and the condition (financial
and otherwise), properties, assets,
liabilities, business and prospects of the
Partnership and the Partnership Assets. The
APC Partners and the RRT Partners have each
disclosed to the other or the others'
Affiliates all material adverse facts known
to them relating to the same. There is no
fact known to the APC Partners or the RRT
Partners, respectively, that has not been
disclosed to the RRT Partners or the APC
Partners, respectively, or their Affiliates,
which might reasonably be expected to have a
material adverse effect on the business,
assets, properties or operations (financial
or otherwise) of the Project or the
Partnership Assets.
3.4.13 Cumulative Effect. Notwithstanding anything
herein to the contrary, if the cumulative
effect of more than one breach of the
representations and warranties in this
Section 3.4 (without giving effect to any
qualifications that such representations are
given only as to material facts or
conditions) is materially adverse to the
Project, the Partnership Assets, the
Partnership or the transactions contemplated
hereby, even if any one or more breaches are
not themselves materially adverse, all such
breaches shall be considered to have a
material adverse effect.
3.5 Offices. The principal offices and official mailing address of
the Partnership shall be at 33 Rock Hill Road, Bala Cynwyd,
Pennsylvania 19044, or at such other place as the Management
Committee may determine.
4. CAPITAL CONTRIBUTIONS.
4.1 Initial Capital Contributions.
4.1.1 On the Formation Date, each General Partner made an
initial capital contribution of One Dollar ($1.00).
4.1.2 On the Formation Date, each Limited Partner made an
initial capital contribution of Forty-nine Dollars
($49.00).
4.1.3 On the Funding Date, the APC Partners and
the RRT Partners each shall make further
initial contributions of three hundred
thousand dollars ($300,000) each, for an
aggregate contribution of six hundred
thousand dollars ($600,000).
4.2 Subsequent Capital Contributions.
4.2.1 The Parties to this Agreement mutually
desire to obtain one hundred percent (100%)
debt financing to the extent it will
maximize the economic benefit to the
Parties; however, if one hundred percent
(100%) debt financing is not economically
practical or is unavailable, at such time as
any Lender to the Partnership shall require
and the Management Committee shall agree,
the General Partners shall contribute
additional equity capital to the Partnership
as follows:
4.2.1.1 Not later than the date or
dates additional equity
capital is required, such
additional cash shall be
contributed by the General
Partners in proportion to
their Partnership
Percentages.
4.2.1.2 Notwithstanding the
provisions of Section
4.2.1.1 above, the General
Partners may elect to
obtain all or a portion of
their share of additional
equity capital from the
Limited Partners, if the
Limited Partners agree, or
from third parties who
shall become additional
Limited Partners if
approved in accordance with
Section 11, provided, that
the Partnership Percentage
of a General Partner shall
at no time be less than one
percent (1%).
5. RESPONSIBILITY FOR AND REIMBURSEMENT OF DEVELOPMENT EFFORTS AND
EXPENSES; DEVELOPMENT FEE; OPERATIONS AND MAINTENANCE
5.1 Development Efforts.
5.1.1 The RRT Partners and the APC Partners shall
each allocate persons with development and
management abilities to work toward
successful development of the Project.
5.1.2 Up to and including the Commercial Operation
Date, the RRT Partners and the APC Partners
shall have joint responsibility for all
matters pertaining to setting up and
mobilizing the operations and maintenance
("O&M") of the Philadelphia Facility,
including without limitation: selection of
contractors, selection and training of
operators, punch list/check out of the plant
against as-built drawings, and establishing
operations, maintenance, safety and other
procedures in accordance with prudent
industry standards.
5.1.3 Up to and including the Commercial Operation
Date, the RRT Partners and the APC Partners
shall have joint prime responsibility for
operation and maintenance of the
Philadelphia Facility.
5.2 Development Expenses
5.2.1 Internal Costs. The RRT Partners and the APC
Partners shall pay their own Internal Costs
as incurred, which Payments shall be deemed
to be Loans to the Partnership. As of the
Funding Date, the parties stipulate to the
following amounts of Internal Costs: RRT
Partners: Three hundred thousand Dollars
($300,000); and APC Partners: Three hundred
thousand Dollars ($300,000).
5.2.2 Third Party Expenses. Prior to the Funding
Date, the RRT Partners and the APC Partners
agree to pay all Third Party Expenses
(Development Expenses other than Internal
Costs) that the Management Committee
determines, in accordance with Section 9.2,
are required to develop the Project, which
payments shall be deemed to be Loans by the
respective Partners to the Partnership. The
RRT Partners shall pay fifty percent (50%)
and the APC Partners shall pay fifty percent
(50%) (the "Third Party Expense
Percentages") of all such Third Party
Expenses that are approved by the Management
Committee. At the end of each calendar
quarter, the Management Committee shall
ascertain, based upon the reports produced
in accordance with Section 5.2.4, whether
expenditures conform to the Third Party
Expense Percentages. If expenditures do not
so conform, the RRT Partners or the APC
Partners, as appropriate, shall reimburse
the Partners who expended in excess of their
Third Party Expense Percentages. The RRT
Partners and the APC Partners shall each
allocate Development Expenses amongst
themselves as they deem appropriate.
5.2.3 Repayment of Development Expenses. On the
Funding Date, to the extent that the
Partnership has funds available, the
Partners shall be entitled to repayment of
their loans for Development Expenses
(including Internal Costs).
5.2.4 Access to Books and Records. Each Partner
shall have reasonable access to the books
and records of the other Partners to the
extent necessary to verify the accuracy of
the expenditures upon which the Development
Expenses are based. Each Partner will
provide a quarterly estimate of its expected
Development Expenses to the Management
Committee for its approval and provide a
monthly accounting of such expenses to the
Management Committee.
5.3 Priority of Payment. The following method of allocation and
order of priority shall be used for repayment of Development
Expenses loans:
(1) First, repayment of the Third Party Expenses loans;
funds available for reimbursement shall be allocated
fifty percent (50%) for the RRT Partners and fifty
percent (50%) for the APC Partners until one set of
Partners is paid in full, and thereafter allocated to
the other Partners until they are paid in full.
(2) Thereafter, repayment of the loans for Internal
Costs, allocated fifty percent (50%) to RRT Partners
and fifty percent (50%) to APC Partners until one set
of Partners is paid in full, and thereafter allocated
to the other Partners until they are paid in full.
Any amounts remaining unpaid on the Funding Date shall be paid
from the first funds determined to be distributable by the
Management Committee and before any distribution to the
Partners pursuant to Section 7.
5.4 Early Termination. Either the RRT Partners or the APC Partners
may withdraw in full from the Partnership and terminate this
Agreement prior to the Funding Date. A withdrawal of one of
the RRT Partners or one of the APC Partners shall require the
withdrawal of both RRT Partners or APC Partners. In the event
of a withdrawal, the withdrawing Partners shall: (a) give
written notice thereof to the remaining Partners; (b) cease
funding the Project no less than thirty (30) days after such
notice is received by the remaining Partners; provided, that
the withdrawing Partners shall fulfill any outstanding
obligations to fund the Project, and any other outstanding
obligations incurred by the Partnership, which have already
been approved by the Management Committee; and (c) assign all
of their interests in the Partnership, the Partnership Assets
and the Philadelphia Facility to the remaining Partners. In
the event the RRT Partners or the APC Partners terminate this
Agreement prior to the Funding Date, the remaining Partners
agree to reimburse the withdrawing Partners on the Funding
Date to the extent Partnership funds are available for all of
their Development Expenses and capital contributions to the
Partnership. Upon termination pursuant to this Section, the
remaining Partners shall grant a security interest to the
withdrawing Partners in the Partnership (subject to Lender
approval), the Philadelphia Facility and all Partnership
Assets to secure the repayment obligation and shall execute
such further documents as the withdrawing Partners reasonably
require to perfect such security interest.
5.5 Operations and Maintenance.
5.5.1 The Partnership shall operate and maintain
the Philadelphia Facility after the
Commercial Operation Date.
5.5.2 The Management Committee shall develop
annually an itemized operating budget which
shall include payments for operations and
maintenance services rendered by the
Partners and their respective Affiliates
pursuant to this Section 5.6, for
reimbursement of the Tax Matters Partner's
expenses and Internal Costs, including
preparation of unaudited Partnership
financial statements, informational tax
returns and other in-house accounting, and
for reimbursement of each Partner's
Development Expenses and Internal Costs
incurred after the Funding Date.
5.6 EPC Contract. The Partnership shall enter into the EPC
Contract for the Philadelphia Facility. Certain provisions of
the EPC Contract shall be guaranteed by RRT on the Funding
Date, provided that such guarantee shall not cause RRT to
become a General Partner of the Partnership.
6. ALLOCATION OF PROFITS AND LOSSES
6.1 Allocation of Net Profits and Losses. All items of income,
gain, deduction, loss or credit, for tax purposes, from normal
operations including from the disposition of assets of the
Partnership shall be allocated among the Partners and credited
or debited to the Partner's respective Capital Accounts, as
appropriate, as of the last day of each month in proportion to
their respective Partnership Percentages.
6.2 Compliance with Code and Treasury Regulations. The provisions
of this Agreement that relate to the allocations for federal
income tax purposes of items of Partnership income, gain,
loss, deduction, and credit, that relate to the determination
and maintenance of Capital Accounts, and that relate to the
distribution of Partnership property upon the liquidation of
the Partnership or a Partner's interest therein, are intended
to comply with Code Sections 704(b) and 704(c), and the
Treasury Regulations promulgated thereunder, and shall be
interpreted and applied in a manner consistent with such
statutory and regulatory provisions, which provisions are
incorporated herein by reference.
7. DISTRIBUTIONS.
7.1 Timing and Amount. Distributions to the Partners, other than
distributions in the event of termination pursuant to Section
12 hereof, shall be made in proportion of the Partners'
respective Partnership Percentages in such amounts and at such
times as determined by the Management Committee, but not less
frequently than quarterly; provided that such distributions
shall not violate the terms of any mortgage, bond or
debenture, indenture or any other agreement of the
Partnership, including without limitation the Bonds and the
documents pursuant to which they are issued.
7.2 Section 754 Election. In the event of a transfer of a
Partnership interest by a sale, assignment or exchange
permitted hereunder, or the distribution of property to a
Partner, the Management Committee may, in its discretion,
cause the Partnership to make a timely election under Code
Section 754 (and a corresponding election under applicable
state and local law).
7.3 Deficit Capital Accounts. Subject to the provisions of Section
12, if a General Partner has a Deficit Balance in its General
Partner Capital Account following the liquidation of the
Partnership or of its interest in the Partnership, as
determined after taking into account all adjustments to its
Capital Account for the Partnership taxable year during which
such liquidation occurs (other than those made pursuant to
this Section 7.3), that General Partner shall be
unconditionally obligated to restore the amount of such
Deficit Balance by payment of cash to the Partnership by the
end of such taxable year (or, if later, within 90 days after
the date of such liquidation), which amount shall, upon
liquidation of the Partnership, be paid to creditors of the
Partnership or distributed to the Partners in accordance with
their positive Capital Account balances in accordance with
Section 12.4. No Limited Partner shall have any obligation to
contribute capital to the Partnership except as provided in
Article 4.
8. ACCOUNTING AND TAXATION.
8.1 Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
8.2 Location of Partnership's Books. The Partnership's books shall
be kept and maintained at the principal office of the
Partnership or at such other place as the Management Committee
shall determine.
8.3 Accounting Principles. For financial reporting purposes, the
Partnership's books shall be maintained on an accrual basis in
accordance with generally accepted accounting principles and
audited by the Certified Public Accountants as of the end of
each fiscal year.
8.4 Annual Financial Statements. As soon as practicable following
the end of each fiscal year, and, in any event, within one
hundred twenty (120) days thereafter, the Tax Matters Partner
shall prepare and deliver to each Partner a statement of
income, retained earnings and statement of cash flows for such
fiscal year, a statement of financial position and a statement
of each partner's Capital Account as of the end of such fiscal
year, together with a certified opinion thereon of the
Certified Public Accountants.
8.5 Quarterly Financial Statements. As soon as practicable but not
later than 45 days after the end of each calendar quarter of
the fiscal year, the Tax Matters Partner shall prepare and
deliver to each Partner:
8.5.1 A profit and loss statement and a statement
of cash flows for such quarter (including
sufficient information to permit the
Partners to calculate their tax accruals and
estimated tax payments), for the portion of
the fiscal year then ended;
8.5.2 A balance sheet and a statement of each
Partner's Capital Account as of the end of
such quarter; 8.5.3 A statement (variance
report) comparing the actual financial
status and results of operations of the
Partnership as of the end of such quarter
and the portion of the fiscal year then
ended with the budgeted or forecasted
status, if any, and results of operations as
of the end of or for such respective
periods; and
8.6 Tax Treatment as Partnership. The Parties intend that the
Partnership shall be treated as a partnership for Federal and
state tax purposes and the Partners agree to take all action,
including the amendment of this Agreement and the execution of
other documents, as may be required to qualify for and receive
such treatment. All of the Partnership's elections for Federal
and state tax purposes shall be determined by the Management
Committee. The Partnership's Federal and state tax returns
shall be approved by the Management Committee prior to filing.
8.7 Preparation of Tax Returns. The Tax Matters Partner shall
prepare or cause to be prepared and file the Federal and state
partnership tax returns (and all other tax returns required by
law) on behalf of the Partnership, at the Partnership's
expense. The other Partners agree to furnish the Tax Matters
Partner, on a timely basis, all information they have which is
required for the proper preparation of such returns. The Tax
Matters Partner shall use its best efforts in preparing and
filing such returns, on a timely basis, using the accrual
method of accounting but shall incur no liability to the other
Partners with respect to such returns. The Tax Matters Partner
shall provide the Management Committee copies of the complete
Federal and state partnership returns in sufficient time for
the Management Committee to review and approve such returns
before filing.
8.8 Allocations Among Periods. For purposes of determining the
income, gains, expenses, losses, deductions and credits
allocable to any period, such items shall be determined on a
daily, monthly or other basis, as determined by the Management
Committee, using any method permissible under Code Section
706, except that any gain or loss on the sale or other
disposition of a Partnership Asset shall be deemed earned or
incurred as of the date of such sale or other disposition.
8.9 Preparation of Reports. The Management Committee shall cause
to be prepared and filed all reports prescribed by any
commission or governmental agency having jurisdiction or
otherwise required by the Bonds or the documents pursuant to
which the Bonds are issued or by any mortgage, indenture or
the like.
8.10 Access to Partnership's Books. Each Partner shall have the
right at all reasonable times during usual business hours and
at such Partner's sole expense to examine and make copies of
the Partnership's books. Such right may be exercised through
any agent or employee of such Partner designated in writing by
it or by an independent public accountant so designated.
8.11 Placement of Partnership Funds. The funds of the Partnership
(except to the extent cash may be required for day to day
expenses) shall be deposited in such bank or banks as shall be
designated by the Management Committee.
9. MANAGEMENT OF THE PARTNERSHIP.
9.1 Authority of the Management Committee. Matters of fundamental
importance to the Partnership shall be within the exclusive
authority of the Management Committee. Matters of fundamental
importance include:
9.1.1 The establishment and approval of the
initial Project budget and all other
operating and capital budgets;
9.1.2 Approval of any expenditure in excess of ten
thousand dollars ($10,000) not included in a
budget that has been approved by the
Management Committee;
9.1.3 Approval and execution of contracts for sale
of recovered paper;
9.1.4 Negotiation, approval and execution of the
EPC Contract for the Philadelphia Facility
(subject to Section 9.2 below);
9.1.5 Establishment of the timing and amount of
any distributions to the Partners and the
establishment of reserves for contingencies;
9.1.6 Approval of any contract to operate and
maintain the Philadelphia Facility or any
other material contract or major Project
commitment of the Partnership;
9.1.7 Approval of any loan agreements or
instruments evidencing the Bonds or any
other debt incurred by the Partnership, or
any other commitments to borrow funds, for
the construction or long-term permanent
financing of the Philadelphia Facility,
including any refinancing or material
modification of the previously approved
financing;
9.1.8 Selection of a bank in which Partnership
funds shall be deposited;
9.1.9 Selection of legal counsel and auditors;
9.1.10 Selection and compensation of a project
manager and other Partnership employees who
will serve at the request and direction of
the Management Committee (subject to Section
9.2 below);
9.1.11 Selection and compensation of a project
manager and other Partnership employees who
will serve at the request and direction of
the Management Committee;
9.1.12 Approval of Partnership tax returns;
9.1.13 Approval and execution of any contracts to
purchase or lease the real property upon
which the Philadelphia Facility will be
constructed;
9.1.14 Abandonment of the Project;
9.1.15 Approval of the sale, lease, transfer or
disposition of real estate or other assets
owned by the Partnership; and
9.1.16 Any other matter which the Management
Committee shall deem in writing or by
resolution to be of fundamental importance
to the Partnership.
9.2 Action by the Management Committee. The presence of at least
one Representative or Alternate of each General Partner is
required to constitute a quorum of the Management Committee.
The Management Committee may act in writing without a meeting
by the unanimous written consent of at least one
Representative of each General Partner. All decisions of the
Management Committee shall require the unanimous approval of
the Management Committee, provided, that the negotiation,
approval and execution of the EPC Contract on behalf of the
Partnership shall be the responsibility of the Representative
or Alternate of AFS and shall not require the approval of the
Representative of RRT-PA, and provided further, that the
selection of the general manager of the Philadelphia Facility
shall be the responsibility of the Representative or Alternate
of RRT-PA and shall not require the approval of the
Representative of AFS.
9.3 Constitution of Management Committee. The Management Committee
shall be comprised of one or more Representatives of each
General Partner as designated in Schedule 9.3 and amended from
time to time by the Management Committee; provided, that each
General Partner shall have only one vote. Any General Partner
may remove and replace its Representatives at any time
effective upon receipt of written notice thereof by the other
General Partner. Each General Partner may designate by written
notice to the other General Partner an Alternate to act in the
stead of its Representatives. Each Alternate shall have full
power to bind the General Partner he or she represents and the
other Partners shall have no obligation to inquire into the
authority of any Alternate to vote on behalf of any Partner.
Copies of the notices described herein shall also be provided
to each Limited Partner.
9.4 Meetings of the Management Committee. The Management Committee
shall hold regular meetings no less than monthly at such times
and places as it shall prescribe. Any Representative may call
a special meeting of the Management Committee on not less than
five (5) business days' notice to all Representatives. Any
meeting may be held by conference telephone call. The notice
requirement may be waived by the consent of at least one of
the Representatives of each General Partner.
9.5 Management Fee. The Management Committee may, in its
discretion, establish an annual management fee ("Management
Fee") to be paid to the General Partners, each of which shall
be entitled to receive fifty percent (50%) of the Management
Fee. The Management Fee shall be compensation for the
following:
9.5.1 Salaries of personnel of each General
Partner who serve on the Management
Committee.
9.5.2 General Partners' home office, secretarial
and clerical support and home office
overheads associated with Partnership
management, and required legal and technical
support. After the Funding Date, no Partner
may charge the time of any of its personnel
to the Partnership without the consent of
the Management Committee. However, General
Partners' travel and out-of-pocket expenses
and all third party expenses required in the
management and operations of the
Partnership's business shall be reimbursed
by the Partnership.
10. LIMITATION OF LIABILITIES.
10.1 Contract Provision to Limit Claims. Unless approved by the
Management Committee, the Partnership shall not enter into any
contract, lease, sublease, note, deed of trust or other
obligation unless there is contained therein an appropriate
provision limiting the claims of all parties to such
instruments to the assets of the Partnership and expressly
waiving any rights of such persons to proceed against the
Partners or their assets except to the extent of their
interest in the Partnership. Without limiting the foregoing in
any way, the obligations of the Partnership, and the Partners
pursuant to the Bonds shall be limited to the assets of the
Partnership.
10.2 Liability Among General Partners. Among the General Partners,
each General Partner shall be liable to all the General
Partners for Partnership liabilities in the proportion of such
General Partner's Partnership Percentage to the sum of the
Partnership Percentages of all General Partners.
10.3 Limited Liability of Limited Partners.
10.3.1 The Limited Partners shall have no personal
liability whatsoever, whether to the
Partnership, to any of the Partners or to
the creditors of the Partnership, for the
debts and obligations of the Partnership or
any of its losses beyond the amounts
contributed or committed to be contributed
by that Limited Partner to the capital of
the Partnership pursuant to this Agreement.
10.3.2 The Limited Partners shall not participate
in the conduct, management or control of the
Partnership's business nor shall they
transact any business for the Partnership or
have the power to act for or bind the
Partnership, those powers being vested
solely and exclusively in the General
Partners.
10.3.3 The Limited Partners shall not have any
voting rights in the Partnership, except on
such matters for which voting rights are
mandated by law.
11. TRANSFER OR PLEDGE OF PARTNERSHIP INTERESTS.
11.1 Permitted Transfers. Subject to Sections 11.4 through 11.7,
nothing herein shall prevent:
11.1.1 A sale, assignment, pledge or other transfer
to a third party of a Partner's interest in
the profits and losses of the Partnership;
provided, that such third party shall not
become a General Partner or a Limited
Partner and shall in no event have a
Representative on the Management Committee
or any other voice in the management of the
Partnership; or
11.1.2 A sale, assignment, pledge or other transfer
creating a security interest in all or any
portion of a Limited Partner's interest in
the Partnership under any mortgage,
indenture or deed of trust created by any
Partner; provided that the assignee,
pledgee, mortgagee or trustee shall hold the
same subject to all of the terms of this
Agreement.
11.2 Sale of Controlling Interest. Sale or transfer of more than a
controlling interest in the stock of either RRT-PA or AFS
shall be deemed a transfer of its Partnership interest.
11.3 Transfer of Partnership Interest. Notwithstanding anything in
this Section 11 to the contrary, except with the prior written
consent of all General Partners (which consent may be granted
or denied in such General Partner's sole discretion), no
Partner may directly or indirectly sell, assign, pledge,
hypothecate or otherwise transfer in any manner, all or any
part of its interest in, or any evidence of ownership of, the
Partnership or in this Agreement.
11.4 Evidences of Ownership. Any evidence of ownership of the
Partnership authorized by the Management Committee and issued
to any of the Partners or their Affiliates shall bear an
appropriate legend to indicate that it is held subject to, and
may be assigned or transferred only in accordance with, the
terms and conditions of this Agreement.
11.5 Registration Under Securities Laws. The Partners acknowledge
that the Partnership interests of each of them have not been
registered under the securities laws of any jurisdiction and
covenant that such interests may not be transferred, pledged
or hypothecated, notwithstanding anything to the contrary
herein, unless registered under all appropriate securities
laws or unless the prospective transferor shall have obtained
an opinion of qualified counsel, addressed to the Partnership
and every Partner that registration is not required under any
such law.
11.6 Opinion of Legal Counsel. In no event, whether or not
permitted pursuant to Section 11.1, shall any Partner transfer
any interest in the Partnership, unless it shall first have
provided the Partnership and the other Partners with an
opinion in form and substance satisfactory to all the
Management Committee of qualified counsel reasonably
acceptable to the Management Committee that the transfer
contemplated will not: (1) cause dissolution of the
Partnership or termination of the Partnership for Federal
income tax purposes; or (2) create adverse tax consequences
for the Partnership or the other Partners; or (3) cause a
Determination of Taxability (as defined in the Indenture
pursuant to which the Bonds were issued). In the event that a
transfer would create adverse tax consequences for the
Partnership or the other Partners, the transferring Partner
shall have the option to proceed with the transfer upon
compensating the Partnership and the other Partners by payment
of an amount jointly determined to be adequate to offset the
adverse tax consequences of the transfer. The transferring
Partner shall also indemnify the Partnership and the other
Partners against any tax liability in excess of such amounts
paid.
11.7 Third Party Offers.
11.7.1 If at any time any Partner wishes to sell,
assign, transfer or otherwise dispose of all
or a portion of its Partnership interest
pursuant to the terms of a bona fide offer
received from a third party (a "Third Party
Buyer"), if the Partner is an RRT Partner,
it shall submit a written offer to sell its
interest to the APC Partners, and if the
Partner is an APC Partner, it shall submit a
written offer to sell its interest to the
RRT Partners, in each case on terms and
conditions, including price, that are no
less favorable to such Partners than those
on which it proposes to sell its Partnership
interest (the "Offered Interest") to such
Third Party Buyer (the "Offer").
11.7.2 The Offer shall disclose the identity of the
Third Party Buyer, the Partnership interest
(or portion thereof) proposed to be sold or
transferred, the agreed terms of the sale or
transfer and any other material facts
relating to the sale or transfer.
11.7.3 In the event the Offered Interest is
proposed to be sold or transferred for
consideration other than cash, the
Management Committee shall make a good faith
determination of the cash value of such
consideration, and the Partners to which the
Offer was made shall be entitled to exercise
their respective rights hereunder through
payment of such cash-equivalent value.
11.7.4 The Partners to which the Offer was made
shall have the right to purchase all or a
portion of the Offered Interest by written
notice delivered to the Partner making the
Offer on the terms set forth in the Offer
and shall act upon the Offer as soon as
practicable, and in all events within forty
five (45) days after receipt of the Offer.
11.7.5 In the event that the Partners to which the
Offer is made do not purchase the Offered
Interest pursuant to and within forty-five
(45) days after the Offer, the right to
purchase the Offered Interest shall be
deemed null and void, and such shares may be
sold by the offering Partner to the Third
Party Buyer at any time within ninety (90)
days after the expiration of the Offer, but
subject to the provisions of Section 11.7.7
below. Any such sale shall be at not less
than the price and upon other terms and
conditions, if any, that are no more
favorable to the Third Party Buyer than
those specified in the Offer.
11.7.6 Any Offered Interest not sold within such
ninety (90) day period shall continue to be
subject to the requirements of a prior offer
and sale pursuant to this Section. In the
event that all or a portion of any
Partnership Interest is sold to any Third
Party Buyer pursuant to this Section, said
Partnership interest shall continue to be
entitled to the benefits conferred by, and
subject to the restrictions imposed by, this
Agreement, and the Third Party Buyer of said
interest shall agree in writing to abide by
the provisions hereof.
11.7.7 Subject to the other provisions of this
Section 11.7, if at any time any General
Partner wishes to sell or otherwise dispose
of all or any portion of its General
Partnership interest to any Third Party
Buyer, each other General Partner shall have
the right to require, as a condition to such
sale or disposition, that the Third Party
Buyer purchase from said other General
Partner, at the same price (on a pro rata
basis) and on the same terms and conditions
as involved in such sale or disposition by
the General Partner who wishes to sell, such
other General Partner's entire General
Partnership interest. Each General Partner
wishing so to participate in any such sale
or disposition shall notify the selling
General Partner of such intention as soon as
practicable after receipt of the Offer
referenced in Section 11.7.1, and in all
events within thirty (30) days after receipt
thereof. In the event that a General Partner
shall elect to participate in such sale or
disposition, said General Partner shall
communicate in writing such election to the
selling General Partner. If the Third Party
Buyer refuses to purchase the other General
Partner's General Partnership interest after
the General Partner makes such election, the
selling General Partner shall not sell its
General Partnership interest to the Third
Party Buyer without the prior written
consent of the General Partner whose
interest was refused by the Third Party
Buyer.
12. TERMINATION.
12.1 General. The Partnership shall continue from the Formation
Date until dissolved pursuant to the terms of this Agreement.
The Partnership shall be dissolved upon the first to occur of
any of the following events:
12.1.1 The withdrawal, dissolution or adjudication
of bankruptcy or insolvency of a General
Partner, unless the remaining General
Partner determines to continue the
Partnership and so notifies the other
remaining Partners within thirty (30) days
of such an event;
12.1.2 The withdrawal, dissolution or adjudication
of bankruptcy of the last General Partner;
or 12.1.3 The expiration of the term of the
Partnership.
12.1.4 A decision by the Management Committee to
dissolve the Partnership.
12.2 Term. Unless otherwise terminated sooner in accordance with
the terms of this Agreement, this Partnership and this
Agreement shall continue in existence until December 31, 2034
and, thereafter, from year to year until December 31, 2054;
provided that any General Partner may elect to terminate the
Partnership and this Agreement as of December 31st of any year
after 2033 by giving the other Partners written notice of such
election not less than one (1) year prior to the date such
termination is to take place.
12.3 Winding Up. After this Agreement expires or is terminated,
except for termination pursuant to Section 12.4, or if the
Partnership is dissolved or terminated pursuant to Section
12.1, the Management Committee shall continue to exercise the
powers vested in it by this Agreement and continue to operate
in the normal course to the extent appropriate for the purpose
of winding up the business of the Partnership and liquidating
the assets thereof in an orderly manner and distributing the
net assets of the Partnership to the Partners to the extent of
their positive Capital Accounts, but the Partnership shall
engage in no new business during the period of such winding
up.
12.4 Dissolutions Constituting Breach of Partnership Agreement. The
dissolution of the Partnership by a Partner prior to
expiration of this Agreement pursuant to Section 12.2, except
with the consent of the other Partners, shall be a breach of
this Agreement. In such event, the nonbreaching General
Partners may elect to pay the breaching Partner an amount
equal to the balance of the breaching Partner's Capital
Account. Upon such payment, the breaching Partner, by this
Agreement grants and conveys to the nonbreaching Partners, all
of the breaching Partner's right, title and interest in the
assets of the Partnership and the Partnership shall be
dissolved. The nonbreaching Partners may thereupon continue
the business of the Partnership as a new partnership or
otherwise. The remedy provided in this Section 12.4 shall be
cumulative of and not in lieu of any remedies the nonbreaching
Partners may have at law or equity.
13. INDEMNITY.
13.1 Indemnification by Partnership. The Partnership shall
indemnify and save harmless the Representatives, Alternates,
Tax Matters Partner, General Partners, and their respective
employees and agents, against all actions, claims, demands,
costs and liabilities arising out of the acts or omissions of
such persons in good faith, reasonably believed by them to be
within the scope of their authority, in the course of the
Partnership's business (regardless of whether an indemnified
party is a Partner at the time such claims arise) and such
persons shall not be liable for any obligations, liabilities
or commitments incurred by or on behalf of the Partnership as
a result of any such acts or omissions.
13.2 Indemnification by Partners. Each Partner will indemnify and
save the other Partners harmless for all loss occasioned by
such first Partner's willful or knowing violation of any law
or regulation. Each General Partner will indemnify each other
General Partner against all losses and liabilities of the
Partnership in the proportion of the General Partners'
Partnership Percentages regardless of whether an indemnified
party is a General Partner at the time such losses or
liabilities are incurred.
13.3 Insurance. Unless determined otherwise by the Management
Committee, the Management Committee shall cause the
Partnership to obtain, at the expense of the Partnership,
directors' and officers' insurance for the members of the
Management Committee in an amount which is customary for
businesses of the same kind and character as the Partnership.
14. RESOLUTION OF DISPUTES.
14.1 Dispute Defined. As used in this Section 14, the term
"Dispute" means a claim, dispute, disagreement or other matter
in question between any two or more Partners that alleges a
breach by the Partners of their respective obligations under
this Agreement.
14.2 Dispute Resolution. The Parties agree to make a diligent, good
faith attempt to resolve all Disputes in accordance with the
provisions of this Section 14 before either Party commences
litigation with respect to the subject matter of any Dispute.
If the representatives of the Parties are unable to resolve a
dispute within fifteen (15) days after notice from one Party
to the other of the existence of the Dispute (the "Dispute
Notice") and after exchange of pertinent information, either
Party may, by a second notice to the other Party, submit the
Dispute to the chief executive officer of RRT, in the case of
a Dispute Notice by one or both of the APC Partners, or the
chief executive officer of American Power Corp., an Affiliate
of the APC Partners, in the case of a Dispute Notice by one or
both of the RRT Partners (collectively, the "CEOs"). A meeting
date and place shall be established by mutual agreement of the
CEOs. However, if the Parties are unable to agree, the meeting
shall take place at the Philadelphia Facility on the tenth
(10th) business day after the date of such second notice. The
CEOs shall meet in person and each shall afford sufficient
time for such meeting (or daily consecutive meetings) as will
provide a good faith, thorough exploration and attempt to
resolve the issues by the CEOs. If the Dispute remains
unresolved five (5) business days following such last meeting,
the CEOs shall meet at least once again within 5 days
thereafter in a further good faith attempt to resolve the
Dispute. For any Dispute which is unresolved at the conclusion
of such meeting, each Party shall submit within 10 days
thereafter a written statement of its position to the
Management Committee. Thereupon, but not earlier than twenty
(20) days after such submission of such statement, either
Party may commence litigation. Nothing herein shall prevent a
Party from commencing litigation to toll a statute of
limitations which might otherwise expire during the time
necessary for performance hereunder.
14.3 Consent to Jurisdiction; Venue. Any legal action, suit or
proceeding arising out of or relating to this Agreement or any
of the transactions contemplated shall be instituted in the
federal court of any District in Pennsylvania, and each party
agrees not to assert, by way of motion, as a defense, or
otherwise, in any such action, suit or proceeding, any claim
that it is not subject personally to the jurisdiction of such
court, that the action, suit or proceeding is brought in an
inconvenient forum, that the venue of the action, suit or
proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court. Each
Party further irrevocably submits to the jurisdiction,
personal and otherwise, of such court in any such action, suit
or proceeding. Any and all service of process and any other
notice in any such action, suit or proceeding shall be
effective against any party if given personally or by
registered or certified mail, return receipt requested, or by
any other means of mail that requires a signed receipt,
postage prepaid, mailed to such party as herein provided.
14.4 Cost. Each Party shall bear its own legal fees incurred in
connection with a Dispute.
14.5 Continuation of Performance. Unless otherwise agreed in
writing, each Party shall continue to perform any of its
obligations under this Agreement which are not in dispute
during any proceeding by the Parties in accordance with this
Section 14.
15. GENERAL.
15.1 Notices. Any notice or other communication required or
permitted hereunder shall be in writing and may be sent by
certified mail, return receipt requested, postage prepaid, by
commercial courier service, by messenger, or by facsimile
transmission if also sent by certified mail, return receipt
requested, postage prepaid. Any such notice or other
communication shall be addressed to each of the Partners at
the address set forth in Section 1 of this Agreement or at
such other address as may be designated from time to time by
any Partner by written notice to each other Partner and the
Partnership. The date of the giving of such notices or other
communications shall be deemed to be the date of actual
delivery to the address provided herein.
15.2 Additional Documents. Each of the Partners agrees to execute
and deliver all such other and additional instruments and
documents and to do such other acts and things as may be
necessary more fully to effectuate the Partnership and carry
on the Partnership business in accordance with this Agreement.
15.3 Non-Competition; Independent Activities; Confidentiality.
15.3.1 Except as specifically provided in this
Section 15.3, nothing in this Agreement
shall be construed to prohibit any Partner
or Affiliate of any Partner from engaging in
any other business enterprise and engaging
in another such enterprise shall not be
usurpation of a Partnership opportunity.
15.3.2 Notwithstanding the forgoing, a period of
two years from the Funding Date, neither the
Partners nor any of their respective
Affiliates will participate as owners in any
office waste paper recovery facilities in
the greater metropolitan areas of (a)
Philadelphia, Pennsylvania, (b) Pittsburgh,
Pennsylvania, (c) Baltimore,
Maryland/Washington, D.C., or (d) South
Amboy, New Jersey, except for office waste
paper recovery facilities in which the APC
Partners (or their Affiliates) and the RRT
Partners (or their Affiliates) both have
ownership interests.
15.3.3 Nothing in this Agreement shall prohibit any
office waste paper processing by the RRT
Partners or their Affiliates that is
incidental to and a part of the
multi-material recycling business conducted
by RRT and its Affiliates, even if RRT or
any of its Affiliates conduct the
multi-material recycling business in one or
more of the metropolitan areas identified in
Section 15.3.2.
15.3.4 The Partners each acknowledge and agree that
in the course of, or incident to, their
engagements with one another, the Partners
may provide to each other and each may
otherwise become exposed to information that
is not known by, or generally available to,
the public at large and that concerns: The
business affairs of the respective Partners,
including existing projects and those in
development; the identity of the Partners'
existing or prospective business partners;
the identity, salary, and compensation of
the Partners' employees; the terms,
conditions, and prices of any contract or
proposed contract among the Partners or
their Affiliates; and other information
designated by the Partners as confidential
("Confidential Information"). The Partners
each acknowledge and agree to protect the
Confidential Information from disclosure to
third parties, and to persons within its
organization other than those persons who
have a need to know such information in
performing its obligations under this
Agreement, by exercising at least the same
care with respect to Confidential
Information as it exercises with respect to
its own confidential information of like
kind, except if required by law to disclose
such information.
15.3.5 The Partners each further acknowledge and
agree that the RRT Partners, and RRT Design
& Construction Corp. pursuant to the EPC
Contract, will be providing to the
Partnership technology and other proprietary
information necessary for the operation of
the Philadelphia Facility. The Parties agree
that such technology and other proprietary
information is being provided to the
Partnership on a non-exclusive basis for use
by the Partnership, the APC Partners and
Affiliates of the APC Partners solely in
connection with the operations of the
Facility, and that the RRT Partners and
their Affiliates retain all ownership rights
in such technology and proprietary
information.
15.4 Section References. Unless otherwise indicated, reference to
section numbers are to sections of this Agreement.
15.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
15.6 Modifications. This Agreement may not be modified,
supplemented, amended or waived except by an agreement in
writing executed by each Partner.
15.7 Successors and Assigns. Except as otherwise expressly provided
herein, all provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by or against
the successors and assigns of each Party.
15.8 Press Releases. Unless approved by the Management Committee or
as required by law or any stock exchange on which any
Securities or Party or Affiliate thereof are listed, no Party
shall issue any press release with respect to the Project.
15.9 Severability. If any provision of this Agreement or the
application thereto to any person or circumstance shall, for
any reason and to any extent, be invalid or unenforceable, the
remainder of this Agreement and the application of such
provision to any other Person or circumstances shall be
affected thereby, but rather shall be enforced to the greatest
extent permitted by law.
15.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original
instrument, but all of which together shall constitute one
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in their respective names by persons authorized to do so on their
behalf, as of the 5th day of December, 1994.
GENERAL PARTNERS:
RRT OF PENNSYLVANIA, INC.
By: /s/ Lawrence J. Schorr
Lawrence J. Schorr
President
AMERICAN FIBER SUPPLY
OF PHILADELPHIA, INC.
By: /s/ Peter A. McGrath
Peter A. McGrath
President
LIMITED PARTNERS:
RESOURCE RECYCLING
TECHNOLOGIES, INC.
By: /s/ Lawrence J. Schorr
Name: Lawrence J. Schorr
Title: President and Chief
Executive Officer
AMERICAN POWER INVESTORS, INC.
By: /s/ Peter A. McGrath
Peter A. McGrath
Vice President
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/34 | | 3 | | | | | None on these Dates |
| Filed on: | | 3/30/95 |
| For Period End: | | 12/31/94 |
| | 12/5/94 | | 3 |
| | 10/6/94 | | 3 |
| List all Filings |
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