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Exhibit
3.12
AGREEMENT OF LIMITED
PARTNERSHIP
OF
SERVICEMASTER AVIATION
SERVICES LIMITED PARTNERSHIP
March 10,
1994
AGREEMENT OF LIMITED
PARTNERSHIP
OF
SERVICEMASTER AVIATION
SERVICES LIMITED PARTNERSHIP
This Agreement of Limited
Partnership is entered into as of March 10, 1994, by and
between ServiceMaster Aviation Management Corporation, a Delaware
corporation, as the general partner (“General
Partner”), and ServiceMaster Management Services Limited
Partnership, a Delaware limited partnership, as the limited partner
(“Limited Partner”), of ServiceMaster Aviation Services
Limited Partnership (the “Partnership”).
SECTION 1
Organizational
Matters
1.1. Formation . The
General Partner and the Limited Partner (together,
“Partners”) form the Partnership as a limited
partnership pursuant to the provisions of the Delaware Revised
Uniform Limited Partnership Act (“Delaware Act”).
Except as provided expressly herein to the contrary, the rights and
obligations of the Partners and the administration and termination
of the Partnership shall be governed by the Delaware Act. The
partnership interest of any Partner shall be personal property for
all purposes.
1.2. Name . The name
of the Partnership shall be, and the business of the Partnership
shall be conducted under the name of, ServiceMaster Aviation
Services Limited Partnership. The Partnership’s business may
be conducted under any other name or names deemed advisable by the
General Partner, including the name of the General Partner or any
affiliate. The words “Limited Partnership” or the
abbreviation “L.P.” shall be included in the
Partnership’s name where necessary for the purposes of
complying with the laws of any jurisdiction that so requires. The
General Partner in its sole discretion may change the name of the
Partnership at any time and from time to time.
1.3. Registered Office
; Principal Office. The address of the registered office of the
Partnership in the State of Delaware shall be 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801, and the registered
agent for service of process on the Partnership in State of
Delaware at such registered office shall be The Corporation Trust
Company. The principal office of the Partnership shall be One
ServiceMaster Way, Downers Grove, IL 60515, or such other place as
the General Partner may designate to the Partners, from time to
time. The Partnership may maintain offices at such other place or
places as the General Partner deems advisable.
1.4. Power of Attorney
. (a) Each limited partner constitutes and appoints the General
Partner with full power of substitution as his or its true and
lawful agent and attorney-in-fact, with full power and authority in
his or its name, place and stead, to execute, swear to,
acknowledge, deliver, file and record in the appropriate public
offices all certificates and other
2
instruments and all amendments thereof
which the General Partner deems reasonable and appropriate or
necessary to form, qualify, or continue the qualification of the
Partnership as a limited partnership (or as a partnership in which
limited partners have limited liability) in the State of Delaware
and in all other jurisdictions in which the Partnership may conduct
business or own property.
1.5. Term . The
Partnership shall commence upon the filing of the Certificate of
Limited Partnership of the Partnership in accordance with the
Delaware Act and shall continue in existence until the close of
Partnership business on March 9, 2040, or until the earlier
termination of the Partnership in accordance with the provisions of
this Agreement.
1.6. Fiscal year . The
fiscal year of the Partnership shall be the calendar year
(“Fiscal Year”).
SECTION 2
Purpose
2.1. Purpose . The
purpose and business of the Partnership shall be to carry any
lawful business act or activity for which a partnership may be
established pursuant to the Delaware Act, as amended.
SECTION 3
Capital
Contributions
3.1. General Partner .
The General Partner shall not be required to contribute to the
capital of the Partnership except (a) as may be necessary to
pay liabilities of the Partnership for which provision cannot
otherwise be made through cash flow generated from operations of
the Partnership or debt incurred in accordance with this Agreement,
or (b) as otherwise expressly required pursuant to the
provisions of this Agreement. The General Partner, at all times
while serving in such capacity, will retain a percentage interest
of one percent (1%) which shall entitle the General Partner to
a one percent (1%) participation in the Partnership’s
income, gains, losses, deductions and credits, but only for so long
as the General Partner continues to serve in such capacity as a
General Partner.
3.2. Limited Partner .
The Limited Partner shall contribute to the Partnership cash in the
amount of $1,000 and in consideration therefor, the Limited Partner
shall receive a percentage interest in the partnership of
ninety-nine percent (99%), which shall entitle the Limited Partner
to a ninety-nine percent (99%) participation in the
Partnership’s income, gains, losses, deductions, and credits,
but only for so long as the Limited Partner continues to serve in
such capacity as a Limited Partner
3.3. Capital Accounts
. A separate capital account shall be maintained for each Partner
in accordance with federal income tax accounting principles
(“Capital Account”), maintained in accordance with
Treasury Regulation Section 1.704-1(b).
3.4. Interest . No
interest shall be paid by the Partnership on capital contributions
or on balances in Partners’ Capital Accounts.
3.5. No Withdrawal . A
Partner shall not be entitled to withdraw any part of his or its
capital contribution or his or its Capital Account or to receive
any distribution from the Partnership, except as provided in this
Agreement.
3.6. Loans from
Partners . Loans by a Partner to the Partnership shall not be
considered capital contributions. If any Partner advances funds to
the Partnership in excess of the amounts required hereunder to be
contributed by it to the capital of the Partnership, then such
advances shall not result in any increase in the amount of the
Capital Account of such Partner. The amounts of any such advances
shall be a debt of the Partnership to such Partner and shall be
payable or collectible only out of the Partnership assets in
accordance with the terms and conditions upon which such advances
are made. All such advances shall be made on terms at least as
favorable as the Partnership could bargain for at arm’s
length with unrelated third party lenders.
SECTION 4
Allocations and
Distributions
4.1. Determination of
Profits and Losses . The profits and losses of the Partnership
shall be determined for each Fiscal Year in accordance with the
accrual method of accounting, in accordance with generally accepted
accounting principles, within ninety (90) days after the end
of such Fiscal Year. The terms “Profits” and
“Losses” as used herein include each item of
Partnership income, gain, loss, deduction and credit, as the case
may be.
4.2. Allocation of
Operating Profits and Losses . Except as otherwise provided
herein, the Profits and Losses of the Partnership shall be
allocated with respect to each Fiscal Year in proportion to each
Partner’s respective percentage interest in the
Partnership.
4.3. Deficit in Capital
Account Balances . Upon dissolution and termination of the
Partnership, the General Partner shall contribute to the capital of
the Partnership an amount equal to the negative balances, if any,
in the Partners’ Capital Accounts. Any amount contributed by
a General Partner under this Section 4.3 shall be distributed
according to the priorities set forth in this Agreement.
SECTION 5
Distributions of Net Cash
Flow
5.1. Distribution of Net
Cash Flow . The net cash flow of the Partnership shall be
distributed to the Partners in proportion to their respective
percentage interests.
SECTION 6
Management and Operation
of Business
6.1. Management . The
General Partner shall conduct, direct, and exercise full control
over all activities of the Partnership. Except as otherwise
expressly provided in this Agreement, all management powers over
the business and affairs of the Partnership shall be vested
exclusively in the General Partner, and no other Partner shall have
any right of control or management power over the business and
affairs of the Partnership.
6.2. Certificate of
Limited Partnership .
6.2.1 Original Filing
. The General Partner shall file a Certificate of Limited
Partnership of the Partnership with the Secretary of State of the
State of Delaware as required by the Delaware Act and shall cause
to be filed such other certificates or documents as may be
reasonable and necessary or appropriate for the formation,
continuation, qualification, and operation of a limited partnership
(or a partnership in which a limited partner has limited liability)
in the State of Delaware or any other state in which the
Partnership may elect to do business.
6.2.2 Amendments . To
the extent that the General Partner in its sole discretion
determines such action to be reasonable and necessary or
appropriate and not in contravention of this Agreement, it shall
file amendments to the Certificate of Limited Partnership and do
all the things to maintain the Partnership as a limited partnership
(or a partnership in which a limited partner has limited liability)
under the laws of the State of Delaware or any other state in which
the Partnership may elect to do business.
6.2.3 Omissions of
Information . Subject to applicable law, the General Partner
may omit from the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of
Delaware and from any other certificates or documents filed in any
other state in order to qualify the Partnership to do business
therein, and from all amendments thereto, the name and address of
the Limited Partner or any other limited partners that may be
admitted to the Partnership and information relating to the capital
contributions and share of profits and compensation of all limited
partners.
6.3. Partnership Funds
. The funds of the Partnership shall be deposited in such account
or accounts as are designated by the General Partner. All
withdrawals from or charges against such accounts shall be made by
the General Partner or by its officers or agents. Funds of the
Partnership may be invested as determined by the General Partner
except in connection with acts otherwise prohibited by this
Agreement.
6.4. Liabilities of the
General Partner and Affiliates . Neither the General Partner,
its affiliates, nor their directors, officers, employees, or agents
shall be liable to the Partnership, to the Limited Partner, or to
any persons who have acquired an interest in the Partnership,
whether as a limited partner or otherwise, for errors in judgment
or for any acts or omissions taken in good faith.
6.5. Title to Partnership
Assets . Title to Partnership assets, whether real, personal,
or mixed, tangible or intangible, shall be deemed to be owned by
the Partnership as an entity, and no Partner, individually or
collectively, shall have any ownership interest in such Partnership
assets or any portion thereof. Title to any or all of the
Partnership assets may be held in the name of the Partnership, the
General Partner, or one or more nominees, as the General Partner
may determine.
SECTION 7
Rights and
Obligatio
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