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Document Preview Limited Partnership Agreement |
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Title: |
Limited Partnership Agreement |
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Entities: |
Krispy Kreme Doughnuts; Krispy Kreme Doughnuts Inc.; Mcaleer John N; Kilpatrick Stockton |
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Date: |
2001 |
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Size: |
Preview shows 14KB of 74KB total |
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Price: |
$36 |
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ID: |
#1898256 |
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THIS LIMITED PARTNERSHIP AGREEMENT is made and entered into as of the 15th day of September, 2000 (the Effective Date), in Forsyth County, North Carolina, by and among those persons listed as the General Partners and the Limited Partner on Exhibit A attached hereto.
The General Partners and the Limited Partners are hereinafter sometimes individually referred to as Partner and collectively referred to as Partners. The names and addresses of the Partners are listed on Exhibit A attached hereto.
ARTICLE I
DEFINITIONS AND GLOSSARY OF TERMS
SECTION 1.1. Act shall mean the Revised Uniform Limited Partnership Act, as in effect in North Carolina and set forth in Chapter 59, Article 5 of the General Statutes of North Carolina (the General Statutes), as such Act may be amended from time to time.
SECTION 1.2. Agreement shall mean this Limited Partnership Agreement, as such Agreement may be amended from time to time.
SECTION 1.3. Appraisal shall mean, unless the context indicates otherwise, a written valuation report by an appraiser that describes and values the fair market value of an ownership interest in the Partnership.
SECTION 1.4. Appraiser shall mean a person or firm qualified to perform business appraisals of partnerships and ownership interests in the partnerships.
SECTION 1.5. Capital Account shall mean, with respect to each Partner or a transferee of a Partner, an account maintained and adjusted in accordance with Treasury Regulations Section 1.704- 1(b)(2)(iv) and in accordance with the provisions of Section C.2 set forth in Exhibit C attached hereto.
SECTION 1.6. Capital Contribution shall mean the amount of money and the initial Gross Asset Value of any property (other than money) contributed to the Partnership with respect to the Interest of such Partner.
SECTION 1.7. Cash Flow shall mean cash available to the Partnership as a result of the operations, investments, financings or refinancings of the Partnership, including without limitation net proceeds from all sales and other disposition of Partnership Property, after (i) payment of all expenses, costs, and indebtedness of the Partnership, (ii) acquisition of investments or other capital assets, and (iii) the establishment of reasonable reserves for working capital, debt service, contingencies, investments, and replacements. Cash Flow shall not be reduced by depreciation, amortization, cost recovery deductions, or similar allowances.
SECTION 1.8. Certificate shall mean the certificate of limited partnership, together with any amendments thereto, required to be filed by the Partnership pursuant to the Act.
SECTION 1.9. Code shall mean the Internal Revenue Code of 1986, as amended from time to time, or any successor federal revenue law and, as the context requires, shall include any final Treasury Regulations, revenue rulings, and revenue procedures thereunder or under any predecessor federal revenue law. Any reference herein to a section of the Code or Treasury Regulations shall be deemed to refer to any successor section thereof.
SECTION 1.10. Default Interest Rate shall mean the rate per annum equal to the lesser of:
| (1) | The Wall Street Journal prime rate as quoted in the Wall Street Journals money rates section, which is also the base rate on corporate loans at large United States money center commercial banks, as its prime commercial or similar reference interest rate, with adjustments to be made on the same date as any change in the rate; and | |
| (2) | The maximum rate permitted by applicable law. |
SECTION 1.11. Depreciation shall mean, for each fiscal year or other period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such year or other period, except that, if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes, Depreciation shall be an amount which bears the same ratio to such Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery reduction for such year or other period bears to such adjuster tax basis.
SECTION 1.12. Distributions shall mean distributions of cash or other property made by the Partnership to the Partners from any source.
SECTION 1.13. Family shall mean the Partners spouse, descendants, ancestors, spouses of descendants, spouses of ancestors, entities the members of which are exclusively members of the preceding groups, and trusts exclusively for the benefit of persons who are members of the preceding groups.
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SECTION 1.14. General Partner shall refer collectively to the person or persons listed as General Partners on Exhibit A attached hereto, and any person who is subsequently admitted as a General Partner in the Partnership in accordance with the terms and conditions of this Agreement.
SECTION 1.15. Gross Asset Value shall mean, with respect to any asset, the assets adjusted basis for accounting purposes except as follows:
| (a) The initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset, as determined by the contributing Partner and the Partnership; |
| (b) The Gross Asset Values of all Partnership assets shall be adjusted to equal their respective gross fair market values, as determined by the General Partner, as of the following times: (i) the acquisition of an additional interest in the Partnership by any new or existing Partner in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Partnership to a General Partner of more than a de minimis amount of property as consideration for an Interest in the Partnership; and (iii) as of the termination of the Partnership for federal income tax purposes pursuant to Code Section 708(b)(1)(B); and |
| (c) If the Gross Asset Value of an asset has been determined or adjusted pursuant to this Section, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Income and Losses. |
SECTION 1.16. Income and Losses shall mean, for each fiscal year or other period, an amount equal to the Partnerships taxable income or loss for such year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be separately stated pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:
| (a) Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Income and Losses pursuant to this Section shall be added to such taxable income or loss; |
| (b) Any expenditures of the Partnership not deductible in computing its taxable income and not properly chargeable to a Capital Account and not otherwise taken into account in computing Income and Losses pursuant to this Section shall be subtracted from such taxable income or loss; |
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| (c) Gain or loss resulting from any disposition of Partnership Property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value; |
| (d) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation as defined in Section 1.8 hereof; and |
| (e) Notwithstanding any other provision of this Section, any items that are specially allocated pursuant to Sections C.3 or C.4 of Exhibit C attached hereto shall not be taken into account in computing Income or Losses. |
SECTION 1.17. Interest shall mean all of the rights of each Partner with respect to the Partnership and the Partnership Property created under this Agreement or under the Act. The Interests of the Partners shall be listed on Exhibit B attached hereto, as such exhibit is amended from time to time in accordance with the terms hereof.
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