EXHIBIT 99.2
LIMITED PARTNERSHIP AGREEMENT
OF
GFP I, LP
THIS LIMITED PARTNERSHIP AGREEMENT, dated this 30th day of June, 2003, made and
entered into by and between ▇▇▇▇ Family Capital Management, Inc., a Delaware
corporation, as the general partner (the "General Partner") and the limited
partners named on Exhibit "A" (collectively the "Initial Limited Partners"), and
those other parties who from time to time execute this Agreement or counterparts
hereof as limited partners (collectively the "Limited Partners").
SECTION 1
FORMATION OF LIMITED PARTNERSHIP
The parties hereby enter into a limited partnership (the "Partnership") under
the provisions of the Delaware Revised Uniform Limited Partnership Act, and the
rights and duties of the Partners shall be as provided in that Act except as
modified by this Agreement.
SECTION 2
NAME
The business of the Partnership shall be conducted under the name "GFP I, LP" or
such other name as the General Partner shall hereafter designate in writing to
the Limited Partners.
SECTION 3
DEFINITIONS
"Adjusted Capital Account" means the positive or negative balance, if any, in
the Capital Account maintained for each Partner as of the end of each fiscal
year of the Partnership after giving effect to the following adjustments:
(a) Increased by any amounts that such Partner is obligated to restore
under the standards set forth in Treas. Reg. Section
1.704-1(b)(2)(ii)(c) or is deemed obligated to restore under Treas.
Reg. Section 1.704-2(g)(1) and (i)(5); and
(b) Decreased by:
(i) All losses and deductions that, as of the end of the
applicable fiscal year, are reasonably expected to be
allocated to such Partner in years subsequent to the
applicable fiscal year under Code Section 704(e)(2) and 706(d)
and under Treas. Reg. Section 1.751-1(b)(2)(ii); and
(ii) Distributions that are reasonably expected to be made to such
Partner to the' extent that such distributions exceed
offsetting increases in the applicable Partner's Capital
Account that are reasonably expected to occur during (or prior
to) the year in which such distributions are reasonably
expected to be made. Notwithstanding anything to the contrary
contained herein, the Adjusted Capital
Account shall be determined in accordance with Treas. Reg.
Section 1.704-1(b)(2)(ii)(d).
"Affiliate" means any corporation, partnership, trust or other entity
controlling, controlled by or under common control with the General Partner.
"Agreement" means this Limited Partnership Agreement, as amended, modified or
supplemented from time to time.
"Capital Account" means the account established on the books and records of the
Partnership for each Partner. Each Partner's Capital Account will initially
equal his or her initial Capital Contribution, and during the term of the
Agreement will be (a) increased by the amount of additional Capital
Contributions made by and by the amount of Profit allocated to such Partner and
(b) decreased by the amount of Capital withdrawn from the Partnership by and by
the amount of Loss allocated to such Partner. To the extent of any conflict
between the provisions of this Agreement relating to the maintenance of Capital
Accounts and the provisions of Treas. Reg. Section 1.704-1(b)(2)(iv), the
provisions of that regulation shall control.
"Capital" means items of monetary value including, but not limited to, currency
of the United States Government, improved real estate, unimproved real estate,
listed and unlisted stocks and bonds, other types of investment confirmations
and tangible and intangible assets of every nature.
"Capital Contribution" means the amount of Capital contributed to the
Partnership by a Partner. The initial Capital Contribution by each Partner is
listed on Schedule "A" attached hereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"General Partner" means ▇▇▇▇ Family Capital Management, Inc., a Delaware
corporation.
"Interest(s)" means the percentage interest a Partner holds in the total Capital
of the Partnership which he or she received in exchange for a Capital
Contribution. Total interests in the partnership shall equal 100%. Interests may
be re-calculated from time to time to reflect additional contributions of
Capital made by a Partner or by multiple Partners. The initial Interests of each
Partner are listed on Schedule "A" attached hereto.
"Limited Partners" means those persons who execute the Agreement as Limited
Partners.
"Net Proceeds" means the cash proceeds realized by the Partnership upon the sale
or refinancing of the Property or upon dissolution and liquidation of the
Partnership reduced by: (i) payment of all expenses incurred in such sale or
refinancing or payment of all expenses incurred in such dissolution and
liquidation, (ii) payment of Partnership indebtedness, (iii) payment of accrued
fees owed to the General Partners which have been deferred pursuant to Section
5.12 hereof and (iv) funds set aside as reserves for contingencies, working
capital, debt service, taxes, insurance, repairs, replacements and renewals or
other costs or expenses incident to the ownership and operation of the Property
and/or to the business of the Partnership which the General Partner in good
▇▇▇▇▇ ▇▇▇▇ reasonably necessary or appropriate.
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"Partners" means the General Partner and all Limited Partners where no
distinction is required by the context in which the term is used.
"Profit" and "Loss" means the net income or net loss of the Partnership as
determined for federal income tax purposes and all items required to be
separately stated by Section 702 of the Code.
"Property" means listed and unlisted securities, real property and improvements
located thereon, art, automobiles, furniture and all other tangible and
intangible assets owned by the Partnership.
SECTION 4
PURPOSES
TO ▇▇▇▇▇▇ A CONTINUING CLOSE RELATIONSHIP BETWEEN FAMILY MEMBERS.
The Partnership's portfolio of investments is something of value that is jointly
owned by all members of the ▇▇▇▇▇▇ ▇. ▇▇▇▇ family; husband, wife and sons and
daughter-in-law, her daughter and grandchildren. The value of the portfolio is
sufficiently large to create a definite interest by all of the owners (the
partners, General and Limited) in retaining and hopefully increasing that value
as time passes.
GFP I, LP, thereby, is a focal entity where all the above listed family members
have and will continue to have a common interest. This common interest will
generate a continuing contact between family members.
TO HELP EDUCATE THE FAMILY CHILDREN ON THE IMPORTANCE AND VALUE OF INVESTING
PRUDENTLY.
The varied investments held and to be held by GFP I, LP offer a unique
opportunity for the officers of the General Partner to provide the family
children, whose Trusts will become Limited Partners, with an early and
continuing education in basic finance; to teach them the merits of saving vs.
spending, the positive effects of compounding, capital appreciation and
depreciation, interests and dividends, rental income and expense, etc.
The children will be able to monitor the results of their suggestions that
become investment decisions of the General Partner.
It is firmly believed that such learning from actual experience will prove to be
beneficial to the children during their entire lives.
TO ▇▇▇▇▇▇ A CONTINUING CLOSE RELATIONSHIP BETWEEN THE SONS, ▇▇▇▇▇▇▇▇ ▇▇▇▇ AND
▇▇▇▇▇ ▇▇▇▇.
Because ▇▇▇▇ and ▇▇▇▇▇, as co-Presidents of the General Partner of GFP I, LP,
will have a fiduciary responsibility to protect the interests of the Limited
Partners, it will be imperative that ▇▇▇▇ and ▇▇▇▇▇ fulfill their fiduciary
responsibility by keeping said Limited Partners, including the beneficiaries of
the associated Trusts, informed and to listen to their suggestions, complaints
and requests -- and because ▇▇▇▇ and ▇▇▇▇▇ have equal voting power, they will
need to discuss and agree upon actions to be taken.
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It is firmly believed that the necessity to resolve differences is an excellent
means to retain closeness of the parties involved and retention of closeness is
important because the Limited Partnership Agreement of GFP I, LP places
management and control of the partnership assets in the hands of those family
members, ▇▇▇▇ and ▇▇▇▇▇, who by age and experience are best suited for such a
responsibility at this time.
TO MAINTAIN AND OR IMPROVE THE MONETARY VALUE OF THE TOTAL CAPITAL OF THE
PARTNERSHIP.
To manage and control the assets of the Partnership; to invest, acquire, hold,
maintain, operate, improve, develop, sell, exchange, lease and otherwise use the
assets of the Partnership for profit; and to engage in any and all activities
related or incidental thereto.
SECTION 5
NAMES AND ADDRESSES OF PARTNERS
The addresses of the Partners are as listed on Schedule "A" attached hereto and
as may be amended from time to time.
SECTION 6
TERM
The term of the Partnership shall begin on the date the Certificate of Limited
Partnership is filed and shall continue until December 31, 2048, unless the
Partnership is sooner dissolved by an act or event specified in this Agreement,
or by law, as one effecting dissolution.
SECTION ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
The principal place of business of the Partnership shall be ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The General Partner may from time
to time change the principal place of business, and in such event the General
Partner shall notify the Limited Partners in writing within thirty days of the
effective date of such change. The General Partner may in its discretion
establish additional places of business of the Partnership.
SECTION 8
CAPITAL AND CONTRIBUTIONS
8.1 LIMITED PARTNERS' CAPITAL CONTRIBUTIONS. The Capital Contribution of
each Limited Partner shall be the amount stated to be such in Schedule A
attached hereto and incorporated herein by reference and incorporated herein by
reference and as amended from time to time. The Limited Partners shall not be
required to make additional Capital Contributions to the Partnership.
8.2 PURCHASE OF INTERESTS BY OFFICERS OF THE GENERAL PARTNER. Officers of the
General Partner may become Limited Partners by the purchase of Limited Interests
and with respect to such Interests shall have all the rights of a Limited
Partner.
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8.3 GENERAL PARTNER'S CAPITAL CONTRIBUTION. The Capital Contribution of the
General Partner shall be the amount stated to be such in Schedule A attached
hereto and incorporated herein by reference and as amended from time to time.
The General Partner shall not be obligated to make additional Capital
Contributions to the Partnership.
8.4 ADDITIONAL CONTRIBUTION ON DISSOLUTION. If, upon dissolution of the
Partnership and after allocation of any Profit arising from such dissolution and
liquidation of the Partnership's assets, any Partner has a negative Capital
Account, such Partner shall not be obligated to contribute cash to the
Partnership in an amount sufficient to eliminate such negative Capital Account.
SECTION 9
DISTRIBUTIONS
9.1 DISTRIBUTIONS OF CASH FLOW. Cash Flow, if any, shall be distributed in
the discretion of the General Partner and, if made, among the Partners in the
proportion that the Capital Contribution of each Partner bears to the total
Capital Contributions of all the Partners as of the last day of the month just
ended.
9.2 TIMING OF DISTRIBUTIONS AND RECORD DATE. Distributions of Cash Flow, if
any, will be made at the discretion of the General Partner to those persons
recognized on the Partnership's books as Partners on the last day of the month
preceding the distribution date.
9.3 DISTRIBUTIONS OF NET PROCEEDS. All Net Proceeds, when distributed, shall
be distributed among the Partners in the proportion that the Capital Accounts of
each Partner bears to the total Capital Accounts of all Partners as of the date
of the sale or refinancing or the dissolution and liquidation resulting in such
Net Proceeds.
SECTION 10
ALLOCATION OF PROFIT AND LOSS
10.1 ALLOCATION OF PROFIT AND LOSS GENERALLY. Except as hereinafter provided,
Profit and Loss shall be determined and allocated with respect to each fiscal
year of the Partnership as of the end of such fiscal year. Profit and Loss shall
be allocated among the Partners in the proportion that the Capital Contribution
of each Partner bears to the total Capital Contributions of all the Partners as
of the last day of the fiscal year just ended.
10.2 ALLOCATION OF PROFIT AND LOSS FOR TRANSFERS OF INTERESTS. With respect to
an Interest which has been transferred during a fiscal year. Unless the Code
requires otherwise, Profit and Loss not arising from a sale or other disposition
of the Property allocable to that Interest shall be allocated between the
transferor and the transferee based upon the number of fiscal quarters that each
was recognized as the owner of the Interest, without regard to whether the
Partnership's operations during particular quarters produced Profit or Loss.
Unless the Code requires otherwise, all Profit or Loss recognized by the
Partnership upon a sale or other disposition of the Property shall be allocated
to the persons recognized as the owner of the Interest as of the date of
disposition of the Property. All Profit or Loss attributable to such sale or
other disposition which is not recognized by the Partnership at the time of such
sale or other disposition, but is later recognized by the Partnership, shall be
allocated to the person recognized as the owner of the Interest as of the date
such Profit and Loss is recognized by the Partnership.
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10.3 ALLOCATION OF PROFIT OR LOSS ON DISSOLUTION. Profit or Loss arising from
a dissolution and liquidation of the Partnership's assets shall be allocated
among the Partners in the proportion that the Capital Contribution of each
Partner bears to the total Capital Contribution of all the Partners as of the
date of such dissolution and liquidation.
10.4 SPECIAL ALLOCATION. Profit and Loss shall be allocated in accordance
with the provisions of this Section 10.4 without regard to the allocation
provisions contained in Section 10.1 and Section 10.3 in the following order: If
any Partner's Capital Account is unexpectedly adjusted for, or such Partner is
unexpectedly allocated or there is unexpectedly distributed to such Partner any
item described in Treas. Reg. Section 1.704(b)(2)(ii)(4)-(6), and such treatment
creates or increases a deficit in a Partners Adjusted Capital account, then
without regard to the allocation provisions provided in Section 10.1 and 10.3,
the Partnership shall allocate to such Partner items of Partnership income and
gain (consisting of a pro rata portion of each item of Partnership income,
including gross income, and gain for such year) in an amount and manner
sufficient to eliminate such deficit in such Partner's Adjusted Capital Account
as quickly as possible. This Section 10.2 is intended to constitute a "qualified
income offset" within the meaning of Treas. Reg. Section 1.704-1(b)(2)(ii)(d).
SECTION 11
BOOKS OF ACCOUNT, RECORDS AND REPORTS
11.1 RESPONSIBILITY FOR BOOKS AND RECORDS. Proper and complete records and
books of account shall be kept by the General Partner, in which shall be entered
fully and accurately all transactions and other matters relative to the
Partnership's business as are usually entered into records and books of account
maintained by persons engaged in businesses of a like character, including a
Capital Account for each Partner. The Partnership books and records shall be
prepared and kept on a consistent basis, as determined by the General Partner in
its judgment. The books and records shall at all times be maintained at a
location selected by the General Partner and identified in writing to all
Partners and shall be open to the inspection and examination of the Partners (or
their duly authorized representatives) during reasonable business hours. The
Partnership shall furnish a list of names and addresses of, and Interests owned
by, all Partners to any Partner who requests such a list in writing.
11.2 TAX INFORMATION. Within 90 days after the end of, and with respect to,
each fiscal year, the General Partner shall send to each person who was an owner
of Interests during the fiscal year then ended such tax information as shall be
necessary for the preparation by such owner of his federal income tax return and
state income and other tax returns with regard to the jurisdiction in which the
Partnership is formed and the Property is located.
11.3 ANNUAL REPORTS. Within 90 days after the end of, and with respect to,
each fiscal year, the General Partner shall send to each person recognized as an
owner of Interests during such year: (i) balance sheet, and statements of
income, partners' equity and changes in financial position, prepared in
accordance with the accounting methods adopted by the General Partner and
certified by the Genera} Partner as fairly presenting the financial condition of
the Partnership; (ii) a Cash Flow statement, certified by the General Partner as
true and correct; (iii) a statement describing all compensation to the General
Partner or any Affiliate; (iv) a report of the activities of the Partnership;
and (v) a statement showing the Profit and Loss of the Partnership.
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SECTION 12
FISCAL YEAR
The fiscal year of the Partnership shall end on the 31st day of December in each
year; provided, however that the General Partner may change the fiscal year at
any time after the first fiscal year upon 30 days' prior written notice to the
Limited Partners.
SECTION 13
PARTNERSHIP FUNDS
The funds of the Partnership shall be deposited in such banks, in such bank
account or accounts, or invested in such interest-bearing or
non-interest-bearing investments, as shall be designated by the General Partner.
All withdrawals from any such bank account(s) shall be made by the duly
authorized agent or agents of the General Partner. Partnership and shall be held
in the name of the Partnership and shall not be commingled with those of any
other person.
SECTION 14
STATUS OF LIMITED PARTNERS
14.1 LIMITATIONS. Limited Partners shall not (i) participate in the management
or control of the Partnership's business, (ii) transact any business for the
Partnership, nor (iii) have the power to act for or bind the Partnership, said
powers being vested solely and exclusively in the General Partner. The Limited
Partners shall have no interest in the properties or assets of the General
Partner, or any equity therein, or in any proceeds of any sales thereof (which
sales shall not be restricted in any respect), by virtue of acquiring or owning
Interests of the Partnership.
14.2 LIABILITY. No Partner shall have any personal liability whatever, whether
to the Partnership, to any of the Partners or to the creditors of the
Partnership, for the debts of the Partnership or any of its losses beyond the
amount contributed by him to the Capital of the Partnership as set forth
opposite his name in Schedule A. Each Interest on issuance shall be fully paid
and nonassessable.
14.3 DEATH OR INCAPACITY. The death or legal incapacity of a Limited Partner
shall not cause a dissolution of the Partnership, but the rights of such Limited
Partner to share in the Profit and Loss of the Partnership, to receive
distributions out of Cash Flow and to assign a Partnership Interest pursuant to
Section 16 hereof shall, on the happening of such an event, devolve on his
personal representative, or in the event of the death of one whose Limited
Partnership Interest is held in joint tenancy, shall pass to the surviving joint
tenant, subject to the terms and conditions of this Agreement, and the
Partnership shall continue as a limited partnership. The estate of the deceased
Limited Partner or such surviving joint tenant, as the case may be, shall be
liable for all the obligations of the deceased Limited Partner. However, in no
event shall such personal representatives or surviving joint tenant become a
substituted Limited Partner, except in accordance with Section 16 hereof.
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SECTION 15
POWERS, RIGHTS AND DUTIES OF THE GENERAL PARTNER
15.1 AUTHORITY. The General Partner shall have exclusive and complete
authority to manage the operations and affairs of the Partnership and to make
all decisions regarding the business of the Partnership and the management and
operation of the Property. Pursuant to the foregoing, the General Partner shall
have all of the rights and powers of a general partner as provided in the
Delaware Revised Uniform Limited Partnership Act and as otherwise provided by
law, and any action taken by the General Partner shall constitute the act of and
serve to bind the Partnership. In dealing with the General Partner acting on
behalf of the Partnership no person shall be required to inquire into the
authority of the General Partner to bind the Partnership. Persons dealing with
the Partnership are entitled to rely conclusively on the power and authority of
the General Partner as set forth in this Agreement.
15.2 POWERS.
A. The General Partner is hereby granted the right, power and
authority to do on behalf of the Partnership all things which, in
its sole judgment, are necessary, proper or desirable to carry
out the aforementioned duties and responsibilities, including but
not limited to the right, power and authority: to incur all
reasonable expenditures; to employ and dismiss from employment
any and all employees, agents, independent contractors, real
estate managers, brokers, attorneys and accountants; to sell, let
or lease all or any portion of the Property for any purpose and
without limitation as to the term thereof, whether or not such
term (including renewal terms) shall extend beyond the date of
the termination of the Partnership and whether or not the portion
so leased is to be occupied by the lessee or, in turn, subleased
in whole or in part to others; to create, by grant or otherwise,
easements and servitudes; to borrow money and as security
therefore to mortgage all or part of the Property; to establish
reasonable reserves; to alter, or replace the Property; to obtain
replacements of any mortgage or mortgages related in any way to
the Property and to prepay in whole or in part, refinance,
recast, modify, consolidate or extend any mortgages affecting the
Property; to do any and all of the foregoing at such price,
rental or amount, for cash, securities or other property and upon
such terms as the General Partner deems proper; to place record
title to any property in its name or in the name of a nominee or
a trustee for the purpose of mortgage financing or any other
convenience or benefit of the Partnership; and to execute,
acknowledge and deliver any and all instruments to effectuate any
and all of the foregoing.
B. POLICIES. The General Partner shall observe the following
policies in connection with Partnership operations:
(i) The Partnership may incur indebtedness in connection with
with the purchase, improvement and refinancing of the
Property and the business of the Partnership. Such
indebtedness may be in the form of purchase money
obligations to the sellers of goods or services or in the
form of loans from banks, institutional investors and
other lenders which indebtedness may be
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secured by mortgages or other interests in the Property
(including "wraparound" or "all-inclusive" mortgages) and
may involve final or interim principal payments
substantially greater than the regular monthly payments.
But "wrap-around" or "all-inclusive" notes to Affiliates,
if any, shall not provide for interest in excess of that
payable to the lenders on the underlying indebtedness.
(ii) Where nonrecourse loans are made to the Partnership, the
the creditor, as a result of making such loan, may not
acquire an equity or participation interest in the
profits, capital or Property of the Partnership, and its
only interest in the Property shall be as a secured
creditor.
15.3 SALE OR OTHER DISPOSITION OF PROPERTY. The General Partner shall have
the right, power and authority to lease, sell, exchange, refinance or grant an
option for the sale of, all or any portion of the Property, at such price or
amount, for cash, securities or other property and upon such other terms as the
General Partner in its sole discretion deems proper.
15.4 TIME TO BE DEVOTED TO BUSINESS. The General Partner shall devote such
time to the Partnership's business as the General Partner, in its sole
discretion, shall deem to be necessary to control, manage and supervise the
Partnership's business and affairs in an efficient manner; but nothing in this
Agreement shall preclude the engagement of the services of any agent or third
party to manage or provide other services in respect of the Partnership's
Property or assets subject to the control of the General Partner.
15.5 OTHER ACTIVITIES. The General Partner may have other business interests
and may engage in other activities in addition to those relating to the
Partnership, including the rendering of advice or services of any kind to other
investors and the making or management of other investments including other
partnerships similar to the Partnership. Neither the Partnership nor any Partner
shall have any right by virtue of this Agreement or the partnership relationship
created hereby in or to such other ventures or activities of the General Partner
or to the income or proceeds derived. The pursuit of such ventures, even if
competitive with the business of the Partnership, shall not be deemed wrongful,
improper or a breach of the General Partner's fiduciary duty. The General
Partner shall have the right to take for its own account (individually or as a
trustee) or to recommend to others any investment opportunity.
15.6 VALIDITY OF TRANSACTIONS WITH GENERAL PARTNER AND AFFILIATES. The
validity of any transaction, agreement or payment involving the Partnership and
any Affiliate otherwise permitted by the terms of this Agreement shall not be
affected by reason of (i) the relationship between the General Partner and such
Affiliate or (ii) the approval of said transaction, agreement or payment by
officers of the General Partner, all or some of whom may be officers or
directors of, or otherwise interested in or related to, such Affiliate.
15.7 LIABILITY. The General Partner shall not be liable, responsible or
accountable in damages or otherwise to the Partnership or any Limited Partner
for any action or omission to act on behalf of the Partnership if such action or
omission was within the scope of the authority conferred on the General Partner
by this Agreement or by law unless such act or omission was performed or omitted
fraudulently, in bad faith or constituted gross negligence.
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15.8 INDEMNIFICATION. The Partnership shall indemnify and hold harmless the
General Partner (herein the "Indemnified Party") from and against any loss,
expense, damage or injury suffered or sustained by the Indemnified Party by
reason of any acts, omissions or alleged acts or omissions arising out of its
activities on behalf of the Partnership or in furtherance of the interests of
the Partnership, including but not limited to any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim and
including any payments made by the Indemnified Party pursuant to an
indemnification agreement no broader than this Section 15.8, if the acts,
omissions or alleged acts or omissions upon which ,such actual or threatened
action, proceeding or claims are based were for a purpose reasonably believed to
be in the best interests of the Partnership and were not performed or omitted
fraudulently or in bad faith or as a result of gross negligence by such
Indemnified Party. Any such indemnification shall only be from the assets of the
Partnership.
15.9 TAX ELECTIONS. The General Partner may, in its sole discretion, make or
revoke the election referred to in Section 754 of the Code or any similar
provision enacted in lieu thereof or any other tax elections which the General
Partner deems advisable. Each of the Partners shall upon request supply the
information to properly give effect to such election.
15.10 LIMITS ON GENERAL PARTNER'S POWERS. Anything in this Agreement to the
contrary notwithstanding, the General Partner shall not cause or permit the
Partnership to:
(i) Make any loans to the General Partner or any Affiliates.
(ii) Pay for any services performed by the General Partner and
and Affiliates, except as provided in Section 15.11, nor
shall they participate in reciprocal business arrangements
which shall circumvent this prohibition.
(iii) Commingle the Partnership's funds with those of any other
other person or employ or permit another to employ such
funds or assets in any manner except for the exclusive
benefit of the Partnership (except to the extent that
funds are temporarily retained by property managers).
15.11 MANAGEMENT FEE AND EXPENSES. The General Partner shall receive the sum of
Ten Thousand Dollars ($10,000) per year for each of the first five (5) fiscal
years of the Partnership; then the sum of Twenty Thousand Dollars ($20,000) per
fiscal year thereafter. The Management Fee shall be payable at such time and in
such manner during each fiscal year as the General Partner shall determine in
the reasonable exercise of its business judgment. Such sum shall serve to
compensate the General Partner for managing the Partnership's business,
including without limitation: (i) purchasing securities and assets of all forms
to be added to, and selling securities and assets of all forms which would be
removed from, the Property; (ii) engaging the services of others to perform
maintenance and repair of the Property as required, the cost of such services to
be paid by the Partnership; (iii) engaging the services of others to assist with
record keeping, payment of obligations and similar administrative requirements
of the Partnership, the cost of such services to be paid by the Partnership. Any
other provision herein to the contrary notwithstanding, the General Partner
shall not be obligated to pay out of its management fee any
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Partnership expenses. The management fees shall be paid to the General Partner
in exchange for its time, knowledge and skills only.
15.12 DEFERRAL OF MANAGEMENT FEES. Payment of the fees pursuant to Section
15.11 hereof may be either paid currently or accrued as determined by the
General Partner. Any fees accrued but not paid shall bear interest at 7.5% per
annum, and in any case shall be paid within five years of the due date.
SECTION 16
TRANSFERS OF INTERESTS BY LIMITED PARTNERS
16.1 ASSIGNMENT. Limited Partner shall withdraw his Capital Contribution or
transfer, assign, grant, convey, mortgage or otherwise encumber his Interest in
the Partnership or enter into any agreement with respect to his Interest without
the prior written consent of the General Partner, which consent may be withheld
for any reason the General Partner, in its sole discretion, deems sufficient for
the purpose of protecting the interests of the Partnership. Grounds upon which
consent to an assignment may be withheld include, but are not limited to:
A. the proposed assignee does not meet the appropriate suitability
standards for acquiring an Interest;
B. the assignment will require, in the opinion of counsel to the
Partnership, registration under the Securities Act of 1933 or
registration under the securities laws of any state;
C. the assignment will be inconsistent with the terms of an opinion
of counsel to the Partnership or will be inconsistent with the
terms of transfer that may be imposed by such counselor by any
agreement to which the Partnership is a party, including, but not
limited to, terms relating to receipt of appropriate
documentation with respect to place of residence, investment
intent and restrictions on further transfer, sale, exchange or
distribution;
D. no assignment shall be permitted if such assignment would, in the
opinion of counsel to the Partnership, result in the termination
of the Partnership for purposes of the then applicable provisions
of the Code;
E. no assignment shall be effective if the assignment would, to the
knowledge of the General Partner violate the provisions of any
applicable federal or state securities law (but the General
Partner shall have no obligation to determine for the benefit of
the assignor whether any assignment would result in such a
violation);
F. no assignment to a minor or incompetent shall be effective in any
respect, except that this limitation shall not apply to a
transfer in trust for the benefit of a minor upon the death of
the assignor or for the benefit of a minor or custodianship under
the Uniform Gifts to Minors Act or similar legislation; and
G. assignment may be restricted to only those persons or entities
whom the General Partner is willing to admit as a substituted
Limited Partner.
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Unless an assignee of an Interest becomes a substituted Limited Partner, such
assignee shall have no right to receive any information or account of
Partnership transactions, or to inspect the Partnership books. Such an
assignment merely entitles the assignee to receive the share of Cash Flow, Net
Proceeds, Profit and Loss to which the assigning Limited Partner would otherwise
be entitled.
16.2 INSTRUMENT OF ASSIGNMENT.
A. No assignment of an Interest shall be valid and effective, and
the Partnership shall not recognize the same until the General
Partner receives and accepts an instrument in writing in the
following form, with blanks appropriately filled in and
subscribed by both parties to the conveyance:
I, ______________________, hereby assign to
______________________ all of my rights, title and interest in
and to Interest(s) in GFP I, LP, a limited partnership organized
under the laws of the State of Delaware, and direct that all
future distributions of Cash Flow or Net Proceeds and allocations
of Profit or Loss on account of said Interest(s) be paid or
allocated to such assignee.
_________________________, as assignee, hereby accepts said
Interest(s) subject to all terms, covenants and conditions of the
Limited Partnership Agreement dated as of June _____, 2003.
Dated this _____ day of __________________, 2003.
Consented to: ____________________________________
Assignor
▇▇▇▇ Family Capital Management, Inc.
By:_________________________________ ____________________________________
Title:______________________________ Assignee
____________________________________
Assignee's Address
____________________________________
Assignee's Social Security Number
12
STATE OF _______________________________ )
COUNTY OF ______________________________ )
On this _____ day of ________________, 20___, before me a notary public,
personally appeared _________________________ and _________________________, to
be known to be the individual(s) described in, and who executed the foregoing
certificate and duly acknowledged to me that they executed the same.
My commission expires ______________________.
_____________________________________
Notary Public
16.3 EFFECT OF ASSIGNMENT.
A. No transfer, sale or assignment of an Interest will be recognized
except as of the first day of a fiscal quarter following
acceptance of the instrument of transfer.
B. After receiving the executed assignment in the form prescribed,
the Partnership shall make all further distributions of Cash Flow
or Net Proceeds and allocate any Profit or Loss to the assignee
with respect to the Interests transferred, regardless of whether
such transfer, as between the parties thereto, is or is intended
to be a pledge, mortgage, encumbrance or any hypothecation, until
such time as the Interest(s) transferred shall be further
transferred in accordance with the provisions of this Agreement.
C. Any Limited Partner who shall assign all his Interests shall
cease to be a Limited Partner of the Partnership, except that
until the assignee is admitted as a Limited Partner such
assigning Limited Partner shall retain the statutory rights of an
assignor of a limited partnership interest under the laws of
Delaware.
D. All fees, charges and filing costs in connection with his
assignee's substitution as a Limited Partner shall be paid by the
assignor prior to the General. Partner's consent to such
assignment.
16.4 ADDITIONAL FILINGS. Upon the effectiveness of an assignment of Interests
under Section 16.1, the General Partner shall take all necessary actions and
shall execute, file and record with tile appropriate governmental agencies such
documents (including amendments to this Agreement) as are required, if any, to
accomplish the substitution of the assignee as a substituted Limited Partner. In
no event shall the consent of any Limited Partner (other than the assignor) be
required to effect such substitution. The Partnership shall treat such person
who becomes a substituted Limited Partner as the substituted Limited Partner
with respect to the Interests assigned from the date such assignment is
effective, notwithstanding the time, if any, consumed in preparing and filing
the necessary documents with governmental agencies necessary to effectuate the
substitution.
13
16.5 TRANSFEREES BOUND BY AGREEMENT. Any person admitted to the Partnership as
a substituted Limited Partner shall be subject to and bound by all the
provisions of this Agreement as if originally a party to this Agreement.
SECTION 17
DISSOLUTION OF THE PARTNERSHIP
17.1 CAUSES OF DISSOLUTION. The happening of anyone of the following events
shall work an immediate dissolution of the Partnership:
(i) the bankruptcy of General Partner unless (i) there is at
least one other General Partner and the business of the
Partnership is carried on by the remaining General Partner
pursuant to this Agreement, or (ii) there are no other
General Partners and within ninety days after the
Partnership receives notice of such event the Limited
Partners owning 87% of the outstanding Interests agree in
writing to continue the business of the Partnership and
appoint one or more general partners;
(ii) the sale or other disposition of 100% of the Property;
(iii) the agreement by Partners owning eighty-seven percent
(87%) of all the then outstanding Interests to dissolve
the Partnership (subject to the provisions of Section
21.1); and
(iv) the expiration of the term of the Partnership as provided
in Section 6 of this Agreement.
17.2 BANKRUPTCY DEFINED. For purposes of this Agreement, the "bankruptcy" of
the General Partner shall be deemed to have occurred 60 days after the happening
of any of the following: (i) the filing of an application by the General Partner
for, or a consent to, the appointment of a trustee of its assets, (ii) the
filing by the General Partner of a voluntary petition in bankruptcy or the
filing of a pleading in any court of record admitting in writing its inability
to pay its debts as they come due, (iii) the making by the General Partner of a
general assignment for the benefit of creditors, (iv) the filing by the General
Partner of an answer admitting the material allegations of, or its consenting
to, or defaulting in answering a bankruptcy petition filed against it in any
bankruptcy proceeding, or (v) the entry of an order, judgment or decree by any
court of competent jurisdiction adjudicating the General Partner a bankrupt or
appointing a trustee of its assets, and such order, judgment or decree
continuing unstayed and in effect for such period of 60 days.
SECTION 18
WINDING UP AND TERMINATION
18.1 WINDING UP. In the event of the dissolution of the Partnership for any
reason except a dissolution described under Section 17.1(i) hereof, or where, if
permitted by law, a substitute General Partner is elected by Partners owning
eighty-seven percent (87%) of the outstanding Interests within 90 days after
the occurrence of the event causing a dissolution under Section 17.1(i) hereof,
the General Partner (or in the event that the General Partner has become
bankrupt, a
14
liquidator or liquidating committee selected by Limited Partners owning a
majority of the then outstanding Interests) shall commence to wind up the
affairs of the Partnership and to liquidate the Partnership's investment(s). The
owners of Interests shall continue to share in Cash Flow, Profit and Loss during
the period of liquidation in the same proportion as before the dissolution.
Subject to the provisions of Section 15.3 hereof, the General Partner (or such
liquidator or liquidating committee) shall have full right and unlimited
discretion to determine the time, manner and terms of any sale or sales of the
Property.
18.2 DISTRIBUTIONS. Following the payment of all debts and liabilities of the
Partnership and all expenses of liquidation, and subject to the right of the
General Partner (or such liquidator or liquidating committee) to set up such
cash reserves as it may in good ▇▇▇▇▇ ▇▇▇▇ reasonably necessary for any
contingent or unforeseen liabilities or obligations of the Partnership, the Net
Proceeds and any other funds of the Partnership shall be distributed in
accordance with Section 9 hereof.
18.3 FINAL REPORTS. Within a reasonable time following the completion of the
liquidation of the Partnership's properties, the General Partner shall supply to
each of the Partners a statement, certified by the General Partner to be true
and correct, which shall set forth the assets and liabilities of the Partnership
as of the date of complete liquidation, and each Partner's pro rata portion of
distributions pursuant to Section 18.2.
18.4 RIGHTS OF LIMITED PARTNERS. Each Limited Partner shall look solely to the
assets of the Partnership for all distributions with respect to the Partnership
and his or her Capital Contribution thereto and his or her share of Cash Flow,
Profit or Loss thereof, and shall have no recourse therefore (upon dissolution
or otherwise) against the General Partner or any other Limited Partner. No
Limited Partner shall have any right to demand or receive property other than
cash upon dissolution and termination of the Partnership.
18.5 TERMINATION. Upon the completion of the liquidation of the Partnership
and the distribution of all Partnership funds, the Partnership shall terminate
and the General Partner shall have the authority to execute and record a
Certificate of Cancellation of the Certificate of Limited Partnership as well as
any and all other documents required to effectuate the dissolution and
termination of the Partnership.
SECTION 19
NOTICES
All notices and demands required or permitted under this Agreement shall be in
writing and may (except in the event of a mail strike) be sent by certified or
registered mail, postage prepaid, to the Partners at their addresses as shown
from time to time on the records of the Partnership. Any Partner may specify a
different address by notifying the General Partner in writing of such different
address.
15
SECTION 20
AMENDMENT OF LIMITED PARTNERSHIP AGREEMENT
20.1 APPROVAL OF AMENDMENTS BY LIMITED PARTNERS. Except as otherwise required
by law, all provisions of this Agreement except Sections 9, 10, 14.2 and 15 may
be amended in any respect (subject to the provisions of Section 21.1 hereof) at
any time upon the affirmative vote of the Partners owning eighty-seven percent
(87%) of the then outstanding Interests but in addition to such affirmative
vote, amendment to Sections 9, 10, 14.2 and 15 will require the unanimous vote
of the Partners. This Agreement may not be amended to extend the term hereof
past December 31, 2048 without the unanimous consent of all of the Partners.
20.2 AMENDMENTS WITHOUT APPROVAL BY LIMITED PARTNERS. In addition to any
amendments otherwise authorized herein, this Agreement may be amended from time
to time by the General Partner without the consent of any of the Limited
Partners (i) to add to the representations, duties or obligations of the General
Partner or surrender any right or power granted to the General Partner herein,
for the benefit of the Limited Partners; (ii) to cure any ambiguity, to correct
or supplement any provision herein which may be inconsistent with any other
provision herein, or to make all other provisions with respect to matters or
questions arising under this Agreement which will not be inconsistent with the
provisions of this Agreement; and (iii) to delete or add any provision of this
Agreement required to be so deleted or added by the Securities and Exchange
Commission or other federal agency or by a state "Blue Sky" commissioner or
similar such official, which addition or deletion is deemed by the Commission,
or such agency or official to be for the benefit or protection of the Limited
Partners; provided, however, that no amendment shall be adopted pursuant to this
Section 20.2 unless the adoption thereof (i) is for the benefit of or not
adverse to the interests of the Limited Partners; (ii) is consistent with
Section 15 hereof; (iii) does not alter the interest of the General Partner or
the Limited Partners in Cash Flow, Profits or Losses of the Partnership; and
(iv) does not, in the opinion of counsel for the Partnership, by its terms alter
the limited liability of the Limited Partners or the status of the Partnership
as a partnership for federal income tax purposes.
20.3 AMENDMENT OF CERTIFICATE. In the event this Agreement shall be amended
pursuant to this Section 20, the General Partner shall amend the Certificate of
Limited Partnership to reflect such change if it deems such amendment of the
Certificate to be necessary or appropriate.
SECTION 21
MISCELLANEOUS
21.1 MEETINGS OF LIMITED PARTNERS. If Partners owning a majority of the then
outstanding Interests request in writing that the General Partner submit to a
vote of the Partners a matter referred to in Sections 17.1(iii) and 20.1 hereof
the General Partner shall do so by written notice to all Partners within 10 days
after receipt of such request, stating the purpose of such meeting. Any vote of
the Partners under Sections 17.1(iii) and 20.1 hereof may be accomplished at a
meeting of Partners called for such purpose by the General Partner, such meeting
to be held at a reasonably convenient time and place not less than 15 nor more
than 60 days after receipt of the request for a meeting or, in lieu of a
meeting, by the written consent of the required percentage of Partners.
16
21.2 Appointment of Attorneys-in-Fact.
A. Each Limited Partner, including each Substituted Limited Partner,
by the execution or adoption of this Agreement (as the case may
be), irrevocably constitutes and appoints R. ▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, the Co-Presidents of the General Partner, or
either of them, his true and lawful attorney(s)-in-fact with full
power and authority in his name, place and ▇▇▇▇▇ to execute,
acknowledge, deliver, swear to, file and record at the
appropriate public offices such documents as may be necessary or
appropriate to carry out the provisions of this Agreement,
including but not limited to:
(i) All certificates and other instruments (including
counterparts of this Agreement), and any amendment
thereof, which the General Partner deems appropriate to
form, qualify or continue the Partnership as a limited
partnership in the jurisdictions in which the Partnership
may conduct business or in which such formation,
qualification or continuation is, in the opinion of the
General Partner, necessary to protect the limited
liability of the Limited Partners.
(ii) All amendments to this Agreement adopted in accordance
with the terms hereof and all instruments which the
General Partner deems appropriate to reflect a change or
modification of the Partnership in accordance with the
terms of this Agreement.
(iii) All conveyances and other instruments which the General
Partner deems appropriate to reflect the dissolution and
termination of the Partnership.
This power of attorney may be exercised by either R. ▇▇▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ acting alone for each Limited Partner, or by listing all of the Limited
Partners and executing any instrument with a single signature of either R. ▇▇▇▇▇
▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as attorney-in-fact for all of them.
B. NATURE AND SURVIVAL OF POWER. The appointment by all Limited
Partners of R. ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as
attorneys-in-fact shall be deemed to be a power coupled with an
interest, in recognition of the fact that each of the Partners
under this Agreement will be relying upon the power of R. ▇▇▇▇▇
▇▇▇▇ and .▇▇▇▇▇▇▇ ▇. ▇▇▇▇, to act as contemplated by this
Agreement in any filing and in any other action on behalf of the
Partnership, and shall survive the bankruptcy, death,
adjudication or incompetence or insanity or dissolution of any
person or entity hereby giving such power and the transfer or
assignment of all or any part of his Interests, but shall, if
either R. ▇▇▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ceases to be an officer
of the General Partner, be deemed automatically revoked with
respect to such person. The foregoing power of attorney of a
transferor Limited Partner shall survive such transfer only until
such time as the transferee shall have been admitted to the
Partnership as a substituted Limited Partner and all required
documents and instruments shall have been duly executed, filed
and recorded to effect such substitution.
17
21.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among
the parties. It supersedes any prior agreement or understandings among them, and
it may not be modified or amended in any manner other than as set forth herein.
21.4 GOVERNING LAW. This Agreement and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware.
21.5 EFFECT. Except as herein otherwise specifically provided, this Agreement
shall be binding upon and inure to the benefit of the parties and their legal
representatives, heirs, administrators, executors, successors and assigns.
21.6 PRONOUNS AND NUMBER. Wherever from the context it appears appropriate,
each term stated in either the singular or the plural shall include the singular
and the plural, and pronouns stated in either the masculine, the feminine or the
neuter gender shall include the masculine, feminine and neuter.
21.7 CAPTIONS. Captions in this Agreement are inserted only as a matter of
convenience and in no way define, limit or extend the scope or intent of this
Agreement or any provision hereof.
21.8 PARTIAL ENFORCEABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
21.9 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument. In addition, this Agreement may contain more than one
counterpart of the signature page and this Agreement may be executed by the
affixing of the signatures of each of the Partners to one of such counterpart
signature pages; all of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
(SIGNATURES APPEAR ON NEXT PAGE)
18
IN WITNESS WHEREOF, the Partners have executed this Partnership Agreement as of
the date first written above.
▇▇▇▇ FAMILY CAPITAL MANAGEMENT, INC.
/s/ R. ▇▇▇▇▇ ▇▇▇▇
------------------------------------
By: R. ▇▇▇▇▇ ▇▇▇▇
Its: President
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ IRREVOCABLE TRUST NO. 2
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Trustee
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ IRREVOCABLE TRUST NO. 2
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Trustee
KELSEY ▇▇▇ ▇▇▇▇ IRREVOCABLE TRUST NO. 2
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Trustee
/s/ R. ▇▇▇▇▇ ▇▇▇▇
------------------------------------
By: R. ▇▇▇▇▇ ▇▇▇▇
19
SCHEDULE A
Limited Partnership Agreement
of
GFP I, LP
OWNERSHIP INTERESTS
GENERAL PARTNER
▇▇▇▇ Family Capital Management, Inc. 0.95974%
LIMITED PARTNERS
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 44.55542%
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ 43.65695%
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 0.73534%
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 0.73534%
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ IRREVOCABLE TRUST NO. 2 1.95752%
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
▇▇▇ ▇▇. ▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ IRREVOCABLE TRUST NO. 2 1.95752%
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
▇▇▇ ▇▇. ▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
KELSEY ▇▇▇ ▇▇▇▇ IRREVOCABLE TRUST NO. 2 1.95752%
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
▇▇▇ ▇▇. ▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
R. ▇▇▇▇▇ ▇▇▇▇ 3.48465%
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The total capital contributed to the partnership is $100. Each partner
contributed that portion of a $100 multiplied by the fraction next to their
name.