Exhibit 3.8
AGREEMENT OF LIMITED
PARTNERSHIP OF
AMERICAN ENTERPRISES MPT,
L.P.
THIS AGREEMENT OF
LIMITED PARTNERSHIP, dated as of the December 9, 1996 (the
“Agreement”), by and between American Enterprises MPT
Corp., a Delaware corporation (the “General Partner”)
and American Enterprises MPT Holdings, L.P., a Delaware limited
partnership (the “Limited Partner”).
WITNESSETH :
WHEREAS, a
Certificate of Formation (the “Certificate”) to form
the Partnership has been filed with the Secretary of State of the
State of Delaware; and
WHEREAS, the
General Partner and the Limited Partner desire to enter into this
Agreement to continue the existence of the Partnership and to set
forth their agreement as to their rights and obligations with
respect to the Partnership;
NOW, THEREFORE, in
consideration of the mutual promises herein set forth, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS; FORMALITIES
1.01.
Definitions.
“Act”
means the Delaware Revised Uniform Limited Partnership Act, as
amended.
“Additional Capital
Contribution” means the amount of any additional
capital contributions made by a Partner pursuant to Section 3.01(b)
hereof.
“Agreement”
means this Agreement of Limited Partnership, as originally executed
and as hereafter amended or modified from time to time.
“Capital
Account” means the account determined and
maintained for each Partner in the manner provided for in the Tax
Allocations Addendum.
“Capital
Contribution” or “Capital Contributions”
means the Initial Capital Contribution and any Additional Capital
Contributions made by a Partner pursuant to Section 3.01
hereof.
“Capital
Proceeds” means the amount of net proceeds
received by the Partnership upon the sale or other disposition of
all or a substantial portion of the Partnership’s business or
assets other than in the ordinary course of the Partnership’s
business that the General Partner determines to be available for
distribution to the Partners after the payment or provision for
payment (including the creation of reserves) of any Partnership
indebtedness and other expenses and liabilities that the General
Partner determines should be paid out of such proceeds, and the
amount of any such reserves that the General Partner determines are
available for distribution to the Partners.
“Certificate of Limited
Partnership” means the Certificate of Limited
Partnership, and any and all amendments thereto, filed on behalf of
the Partnership with the Secretary of State of the State of
Delaware as required under the Act.
“Code”
means the Internal Revenue Code of 1986, as amended (or any
corresponding provision or provisions of succeeding law).
“Fiscal
Year” means the fiscal year of the Partnership,
which shall end on December 31 of each year.
“General
Partner” means American Enterprises MPT Corp., a
Delaware corporation, and its successors or assigns or any other
Person admitted as a substitute general partner pursuant to this
Agreement.
“Initial Capital
Contribution” means the amount of the capital
contribution made by a Partner in accordance with Section
3.01(a).
“Limited
Partner” means American Enterprises MPT Holdings,
L.P., a Delaware limited partnership, and its successors or
assigns.
“Minimum
Return” means an annual rate of return of twelve
percent (12.0%) on the amount of the Limited Partner’s Net
Invested Capital outstanding from time to time, compounded
annually.
“Net Invested
Capital” means the sum of the Limited
Partner’s Initial Capital Contributions and Additional
Capital Contributions (if any) reduced, as and when made, by the
amount of distributions to the Limited Partner pursuant to Sections
3.03(a) and 3.03(b)(i) which, pursuant to Section 3.03(c), are
treated as a return of the Limited Partner’s Net Invested
Capital.
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“Net Capital
Profits” means the amount of net income and gain
realized by the Partnership for Federal income tax purposes with
respect to a transaction giving rise to Capital Proceeds, as
determined by the General Partner.
“Net Operating
Profits” means, with respect to a fiscal period,
the net income of the Partnership for Federal income tax purposes
during such period excluding any Net Capital Profits, as determined
by the General Partner.
“Net
Losses” means, with respect to a fiscal period,
the net loss of the Partnership (whether or not as a result of a
transaction giving rise to Capital Proceeds) for Federal income tax
purposes during such period, as determined by the General
Partner.
“Operating
Cash Flow” means, with respect to any fiscal period, an
amount, determined by the General Partner in its sole and absolute
discretion, equal to the cash revenues of the Partnership from all
sources during such fiscal period, other than Capital Proceeds,
plus such reserves that the General Partner determines are
no longer necessary to provide for the foreseeable needs of the
Partnership (other than any reserves created from Capital
Proceeds), less (i) all cash expenditures of the Partnership
during such fiscal period, including, without limitation, operating
expenses, debt service, repayment of Partner Advances and interest
thereon (which shall be repaid in full prior to any distribution of
Operating Cash Flow), administrative expenses, and expenditures
incurred by the Partnership in connection with capital
transactions, and (ii) such reserves that the General Partner
determines to be necessary or appropriate to provide for the
foreseeable needs of the Partnership.
“Partners”
means the General Partner and the Limited Partner. Reference to a
“Partner” means either of the Partners.
“Partner
Advances” means loans or advances, if any, made by
a Partner to the Partnership from time to time pursuant to Section
3.01(b) hereof.
“Partnership”
means the limited partnership formed under the Act by this
Agreement by the parties hereto, as said Partnership may from time
to time be constituted.
“Partnership
Interest” means the entire interest of a Partner
in the Partnership at any particular time, including the right of
such Partner to any and all rights and benefits to which a Partner
may be entitled as provided in this Agreement, together with the
obligations of such Partner to comply with all the terms and
provisions of this Agreement.
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“Person”
means any individual, partnership, corporation, trust, or other
legal entity.
“Prime
Rate” means for any period the daily average of
the “base rate” for corporate loans at NationsBank,
N.A. or such other large U.S. money center banks as shall be
designated from time to time by the General Partner.
“Tax Allocations
Addendum” means Exhibit B to this Agreement
as it may be amended from time to time in accordance with Section
3.07 hereof.
“Tax Matters
Partner” means the General Partner.
1.02.
Continuation of Partnership: Certificate of Limited
Partnership . The General Partner formed the Partnership on
October 15, 1996, pursuant to the provisions of the Act. The
Partners hereby execute this Agreement for the purpose of
continuing the existence of the Partnership and setting forth the
rights, duties and relationship of the Partners. If the laws of any
jurisdiction in which the Partnership transacts business so
require, the General Partner also shall file, with the appropriate
office in that jurisdiction, a copy of the Certificate of Limited
Partnership as filed with the office of the Secretary of State of
the State of Delaware or any other documents necessary for the
Partnership to qualify to transact business and to establish and
maintain the Limited Partner’s limited liability under the
Act.
1.03.
Name . The name of the Partnership is American Enterprises
MPT, L.P.
1.04.
Names and Addresses of Partners . The names and addresses of
the Partners as of the date of this Agreement are set forth in
Exhibit A hereto.
1.05.
Principal Place of Business . The principal place of
business and the principal office of the Partnership shall be
located at 1802 Pittsburgh Avenue, Erie, Pennsylvania. The
Partnership may have such other or additional offices, either
within or without the State of Delaware, as the General Partner
shall deem advisable.
1.06.
Registered Agent The name and address of the initial
registered agent of the Partnership shall be Corporation Service
Company, 1013 Centre Road, Wilmington, Delaware 19805. The General
Partner may change the registered agent from time to time, in its
sole and absolute discretion.
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1.07.
Term . The term of the Partnership commenced on October 15,
1996, and shall continue until the Partnership is dissolved in
accordance with the provisions of this Agreement.
1.08.
Title to Partnership Property . Legal title to the property
of the Partnership shall be in the name of the Partnership.
ARTICLE II
BUSINESS OF THE PARTNERSHIP
2.01.
Purposes . The purposes for which the Partnership is formed
and the businesses to be carried on and promoted by it are:
(a)
to acquire the business and assets of the Mechanical Power
Transmission Group of Zurn Industries, Inc. pursuant to a certain
Agreement for the Purchase and Sale of Assets dated October 15,
1996; and
(b)
to engage in any one or more businesses or transactions, or to
acquire all or any portion of any entity engaged in any one or more
businesses or transactions which the General Partner, in its sole
and absolute discretion, from time to time may authorize or
approve, whether or not related to the business described in
Section 2.01(a) or to any other business then engaged in by the
Partnership.
2.02.
Authority . In order to carry out its purposes, the
Partnership is empowered and authorized to do any and all acts and
things necessary, appropriate, proper, advisable, desirable,
incidental to or convenient for the furtherance and accomplishment
of its purpose and for the protection and benefit of the
Partnership, including but not limited to the following:
(a)
buy, own, operate, assign, mortgage, or lease any property;
(b)
enter into any kind of activity, and perform and carry out
contracts of any kind necessary to, in connection with, incidental
to, or desirable to, the accomplishment of the purposes of the
Partnership;
(c)
borrow money and issue evidences of indebtedness in furtherance of
the Partnership business and secure any such indebtedness by
mortgage, pledge, or other lien; and
(d)
do any and all other acts and things necessary or desirable in
furtherance of the Partnership’s business.
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ARTICLE III
CAPITAL CONTRIBUTIONS,
DISTRIBUTIONS, AND ALLOCATIONS
3.01.
Capital Contributions; Advances .
(a)
The General Partner and the Limited Partner each shall make an
Initial Capital Contribution to the Partnership in the amount set
forth opposite such Partner’s name on Exhibit A .
(b)
Partners shall be permitted (but shall not be required) to make
Additional Capital Contributions to the Partnership from time to
time as the General Partner, in its sole and absolute discretion,
may request them to make. In addition, the Partners may (but shall
be under no obligation to) loan or advance to the Partnership such
funds as the General Partner, in its sole and absolute discretion,
may request, with interest on such loans or advances to be at the
Prime Rate plus one-quarter of one percentage point (“Partner
Advances”).
(c)
Except as provided in Section 3.03(b), no Partner shall have the
right to demand the return of its Capital Contributions or Net
Invested Capital prior to the dissolution and liquidation of the
Partnership.
3.02.
Capital Accounts . The Partnership shall keep a separate
Capital Account for each Partner which shall be determined and
maintained in the manner provided for in the Tax Allocations
Addendum attached hereto as Exhibit B .
3.03.
Distributions.
(a)
The Partnership shall make distributions to the Partners of
Operating Cash Flow, if any, from time to time as determined by the
General Partner (subject to any applicable covenants or other
restrictions contained in the Partnership’s loan agreements).
All distributions of Operating Cash Flow shall be made in the ratio
of 1% to the General Partner and 99% to the Limited Partner.
(b)
The Partnership shall distribute to the Partners any Capital
Proceeds realized by the Partnership within a reasonable period of
time following the event giving rise to such Capital Proceeds, as
determined by the General Partner (subject to any applicable
covenants or other restrictions contained in the
Partnership’s loan agreements). All distributions of Capital
Proceeds and any distributions to be made to the Partners in
connection with the liquidation of the Partnership, shall be made
in accordance with the following priorities:
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(i) first, in the ratio of 1% to the
General Partner and 99% to the Limited Partner, to the extent
necessary to provide the Limited Partner with an amount which,
together with the amounts previously distributed to it pursuant to
this Section 3.03, are sufficient to provide it with the Minimum
Return and a return of its Capital Contributions;
(ii) second, to the Partners, to the
extent of and in proportion to the remaining positive balances in
their Capital Accounts (after taking into account, in the case of a
distribution of Capital Proceeds, the allocation of the Net Capital
Gain (if any) or Net Loss realized with respect to the transaction
giving rise to such Capital Proceeds or, in the case of a
distribution in connection with the liquidation of the Partnership,
the allocation of all Net Operating Income, Net Capital Gain, and
Net Loss made or to be made to the Partners); and
(iii) thereafter, to the Partners, in the
ratio of 99% to the General Partner and 1% to the Limited
Partner.
(c)
For purposes of computing the amount of the Minimum Return and the
Limited Partner’s Net Invested Capital, any distribution to
the Limited Partner pursuant to Section 3.03(a) and 3.03(b)(i)
shall be considered to be made first as payment of the Minimum
Return as of the date such distribution is made and second as
repayment of the Limited Partner’s Net Invested Capital.
3.04.
Allocation of Profits and Losses .
(a)
Subject to Section 4 of the Tax Allocations Addendum, Net Operating
Profits with respect to each Fiscal Year (or portion thereof) shall
be allocated in the ratio of 1% to the General Partner and 99% to
the Limited Partner.
(b)
Subject to Section 4 of the Tax Allocations Addendum, Net Capital
Profits realized with respect to any Fiscal Year shall be allocated
to the Partners (prior to giving effect to any distributions made
or to be made to the Partners with respect to the Fiscal Year) in
the following order of priority:
(i) first, to all Partners whose Capital
Accounts have negative balances, in the ratio of such negative
balances until such negative balances are brought to
zero;
(ii) second, in the event the Capital
Account balance of the Limited Partner is less than the amount to
be distributed to it pursuant to
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Section 3.03(b)(i), in
the ratio of 1% to the General Partner and 99% to the Limited
Partner, to the extent necessary to increase the Capital Account
balance of the Limited Partner to equal the amount to be
distributed to it pursuant to Section 3.03(b)(i); and
(iii) thereafter, any remaining Net
Capital Profits shall be allocated to the Partners in the ratio of
99% to the General Partner and 99% to the Limited
Partner.
(c)
Subject to Section 4 of the Tax Allocations Addendum, any Net
Losses shall be allocated to the Partners in the ratio of 1% to the
General Partner and 99% to the Limited Partner.
3.05.
Partnership Funds . All funds of the Partnership shall be
deposited in such bank accounts as shall be designated by the
General Partner and all withdrawals from such bank accounts shall
be made by checks or other instruments signed by the designated
representatives of the General Partner or such other Person or
Persons as the General Partner may designate.
3.06.
Tax Matters .
(a)
The General Partner shall be the “Tax Matters Partner”
for purposes of Code Sections 6221 through 6232, inclusive. As the
Tax Matters Partner, the General Partner shall prepare and file all
required income tax returns and shall manage administrative tax
proceedings conducted at the Partnership level by the Internal
Revenue Service with respect to Partnership matters.
(b)
The Tax Allocations Addendum shall set forth in detail the policies
and procedures which shall guide the tax accounting of the
Partnership. Such policies and procedures shall be in accordance
with all then-applicable provisions of the Code and regulations,
including without limitation the provisions thereof governing
allocation of gains and losses; provided, however, that such
allocations (the “Regulatory Allocations”) shall be
taken into account in allocating other profits, losses, and items
of income, gain, loss and deduction among the Partners so that, to
the extent possible, the net amount of such allocations of other
profits, losses and other items and the Regulatory Allocations to
each Partner shall be equal to the net amount that would have been
allocated to each such Partner if the Regulatory Allocations had
not occurred. The General Partner shall have the authority to amend
the Tax Allocations Addendum from time to time as it deems
necessary, in its sole and absolute discretion.
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ARTICLE IV
RIGHTS, OBLIGATIONS, AND POWERS
OF
THE PARTNERS
4.01.
Authority of the General Partner.
(a)
The General Partner, in its capacity as general partner, shall have
the right, power and authority, acting for and on behalf of the
Partnership, inter alia , to take all actions and
execute and deliver all agreements on behalf of the Partnership in
connection with the business of the Partnership, including, without
limitation, the authority to cause the Partnership to sell,
exchange, lease, pledge, mortgage, or otherwise deal with all or
any of its assets or to merge with or into any other entity
(regardless of whether the Partnership is the surviving entity), as
determined by the General Partner in its sole and absolute
discretion. The General Partner also shall have the right, power
and authority to execute and deliver on behalf of the Partnership
any contract, agreement or other instrument or document required or
otherwise appropriate to acquire, sell, operate or encumber the
Partnership’s properties.
(b)
All decisions made for and on behalf of the Partnership by the
General Partner shall be binding upon the Partnership. Except as
otherwise expressly set forth in this Agreement, the General
Partner (acting for and on behalf of and in the name of the
Partnership), in extension and not in limitation of the rights and
powers given it by law or by the other provisions of this
Agreement, shall, in its sole discretion, have the full and entire
right, power and authority, in the management of the
Partnership’s business, to do any and all acts and things
necessary, proper, convenient or desirable to effectuate the
purposes of the Partnership.
4.02.
Restrictions on General Partner’s Authority .
Notwithstanding any other provision of this Agreement, including
Section 4.01 and except as provided herein, the General Partner
shall have no authority to do any of the following acts without
obtaining the consent of the Limited Partner:
(i) to file a
bankruptcy petition on behalf of the Partnership; or
(ii) to admit any
general partner to the Partnership.
4.03.
Management of Business . Except to the extent the
consent of the Limited Partner may be required under Section 4.02,
management of the Partnership’s business shall in every
respect be the full and exclusive responsibility of the General
Partner, which shall have all rights, powers and authorities
permitted by the Act and the laws of the State of Delaware. The
General Partner shall have the right, power and authority to
delegate any or all
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of its management
duties to any other Person (including an affiliate of the General
Partner) and to cause the Partnership to reasonably compensate any
such Person for services rendered to or for the benefit of the
Partnership, including a reasonable allowance for overhead
expenses. The Limited Partner shall take no part in the management
or control of the business of the Partnership or transact any
business in the name of the Partnership. The Limited Partner shall
have no power or authority to bind the Partnership or to sign any
agreement or document in the name of the Partnership.
4.04.
Outside Activities . Except as may be otherwise limited or
provided for in any other agreement between the Partnership and a
Partner, the Partners may engage in and possess interests in other
business ventures (including limited partnerships) of every kind
and description whatsoever, including, without limitation,
interests in other entities that may compete with the
Partnership’s business. Neither the Partnership nor any of
the Partners shall have any rights by virtue of this Agreement in
or to such other business ventures or to the income or profits
derived therefrom.
4.05.
Action Prior to Agreement . Each and every act and action
taken by the General Partner on behalf of the Partnership prior to
the date hereof is hereby ratified and confirmed for all purposes
and in all respects.
4.06.
Partners or Affiliates Dealing with Partnership . Each of
the Partners and any of their affiliates shall have the right to
contract or otherwise deal with the Partnership.
4.07.
Liability to Partnership and the Limited Partner . Except as
provided in Section 5.01, the General Partner shall not be liable,
responsible or accountable in damages, for the return of Capital
Contributions or otherwise to the Limited Partner or to the
Partnership for any acts performed in good faith and within the
scope of this Agreement except to the extent that a court of
competent jurisdiction finds, upon entry of a final judgment, that
its actions and/or omissions are attributable to gross negligence,
willful misconduct, recklessness, malfeasance or fraud.
4.08.
Indemnification .
(a)
The Partnership shall indemnify, defend and hold harmless the
Partners, their stockholders, owners, partners, directors,
officers, employees and agents from and against any loss,
liability, damage, cost or expense (including reasonable attorneys
fees) arising out of or alleged to arise out of any demands,
claims, suits, actions or proceedings against any of them in or as
a result of or relating to their respective capacities, actions or
omissions with respect to the Partnership, or otherwise concerning
the business or affairs of the Partnership
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including, without
limitation, any demands, claims, suits, actions or proceedings,
initiated by any of the Partners; provided, however, that the acts
or omissions of the General Partner shall not be indemnified
thereunder to the extent a court of competent jurisdiction finds,
upon entry of a final judgment, that the same resulted from gross
negligence, willful misconduct, recklessness, malfeasance or fraud.
Any indemnification under this Section 4.08 shall be made from the
assets of the Partnership, and no Partner shall be personally
liable therefor.
(b)
The rights of indemnification contained in this Section 4.08 shall
be cumulative of, and in addition to, any and all rights, remedies
and recourse to which any indemnified party shall be entitled,
whether pursuant to the provisions of this Agreement, at law or in
equity. Indemnification shall be made solely and entirely from
assets of the Partnership (excluding, for these purposes, all
assets of the Partners other than those of and attributable to such
Partner’s interest in the Partnership), and the Limited
Partner shall not be personally liable to any indemnified party
under this Section 4.08.
(c)
Any Person, when entitled to indemnification pursuant to this
Section 4.08, shall be entitled to receive, upon application
therefor, advances to cover the costs of defending any proceeding.
All rights to indemnification hereunder shall survive the
dissolution of the Partnership and the death, retirement,
incompetency, insolvency or bankruptcy of any Partner.
4.09.
Transfers of Partnership Interests . No Partner shall at any
time transfer all or any part of its Partnership Interest, and any
attempt to assign or transfer a Partnership Interest shall be null
and void ab initio . For this purpose, the term
“transfer” shall include any sale, assignment, gift,
pledge, hypothecation, mort
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