AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF REEVES TELECOM LIMITED PARTNERSHIP (As amended October 28, 2008)
Exhibit
3.1
AMENDED
AND RESTATED
OF
▇▇▇▇▇▇
TELECOM LIMITED PARTNERSHIP
(As
amended October 28, 2008)
WITNESSETH:
WHEREAS,
the parties hereto desire to form a limited partnership pursuant to the Uniform
Limited Partnership Act of the State of South Carolina (Chapter 43, Title 33,
South Carolina Code of Laws, 1976, as amended) for the purposes and under the
terms and conditions provided for herein; and
WHEREAS,
the parties hereto intend that this document shall constitute the Agreement
of
Limited Partnership; and
WHEREAS,
the parties hereto are entering into this Agreement in anticipation of the
admission of additional Limited Partners pursuant to the terms and conditions
of
this Agreement, the interests of the Limited Partners being held by the
Partnership for subsequent distribution to the Limited Partners, whose ownership
interests will be set forth on the Limited Partner Signature Pages.
NOW
THEREFORE, for and in consideration of the mutual covenants herein contained,
and intending to be legally bound hereby, the parties hereto, after being first
duly sworn, do covenant, agree and certify as follows:
ARTICLE
1
DEFINITIONS
1.1 “Agreement”
shall
mean and refer to this Agreement of Limited Partnership, as the same may be
from
time to time amended.
1.2 “Capital
Account”
shall
mean and refer to the account maintained for each Partner representing his
capital contributions to the Partnership. Each Capital Account shall be
increased by a Partner’s share of Partnership profits and decreased by a
Partner’s share of Partnership distributions and losses.
1.3 “Cash
Flow”
shall
mean and refer to net income of the Partnership, determined on a cash basis,
less capitalized expenditures and payments in reduction of outstanding
indebtedness, plus depreciation and amortization of leasing and financing
costs.
1.4 “Distributable
Cash”
shall
mean and refer to Cash Flow for any given fiscal period plus all Sales and
Refinancing Proceeds during such fiscal period decreased by any addition to
Reserves and increased by any reductions of Reserves during such fiscal
period.
1.5 “General
Partner(s)”
shall
mean and refer to the initial General Partner named herein and any other parties
admitted as additional or substituted General Partners. If there is only one
General Partner, “General Partners” shall refer to such General
Partner.
1.6 “General
Partner Unit(s)”
shall
mean and refer to the Units held by a Record Holder as a General Partner.
1.7 “Initial
Partnership Property”
shall
mean and refer to the assets which ▇▇▇▇▇▇ Telecom Corporation transfers or
causes to be transferred to the Partnership pursuant to the Plan of
Liquidation.
1.8 “Limited
Partner(s)”
shall
mean and refer to Telecom and all parties duly admitted as additional or
substituted Limited Partners.
1.9 “Limited
Partner Unit(s)”
shall
mean and refer to Units held by a Record Holder as a Limited
Partner.
1.10 “Participating
Percentage”
shall
mean and refer to the ownership interest in the Partnership represented by
the
number of Units held by a Partner or Record Holder and shall be that percentage
calculated by dividing the total number of Units held by a Partner or Record
Holder by the total number of Units outstanding.
1.11
“Partner(s)”
shall
mean and refer to all General Partners and all Limited
Partners.
1.12 “Partnership”
shall
mean and refer to the Limited Partnership created by this
Agreement.
1.13 “Plan
of Liquidation”
shall
mean and refer to the ▇▇▇▇▇▇ Telecom Corporation Plan of Complete Liquidation
as
approved by shareholders of Telecom.
1.14 “Record
Holder”
shall
mean and refer to the party duly recorded on the books of the Partnership as
the
owner of one or more Units, whether or not such party is a Partner.
1.15 “Reserves”
shall
mean and refer to funds duly reserved in the sole discretion of the General
Partners for working capital, contingent liabilities, taxes, debt service,
repairs, replacements, renewals, capital expenditures or other purposes
consistent with this Agreement.
1.16 “Sales
and Refinancing Proceeds”
shall
mean and refer to the net cash realized by the Partnership from the sale,
refinancing or other disposition of any Partnership property (including, without
limitation, condemnations, recoveries of damage awards and insurance proceeds
and borrowings secured by mortgages on real property of the Partnership) after
deducting all expenses related to any such transaction.
1.17 “Telecom”
shall
mean ▇▇▇▇▇▇ Telecom Corporation.
1.18 “Unit”
shall
mean and refer to one of the equal parts into which the ownership interests
of
the Partners in the Partnership shall be divided.
ARTICLE
2
FORMATION,
NAME AND PRINCIPAL
PLACE
OF BUSINESS
2.1 Formation.
The
Partners hereby form a Limited Partnership under the Uniform Limited Partnership
Act of the State of South Carolina for the purposes provided for
herein.
2.2 Name.
The
name of the Partnership shall be ▇▇▇▇▇▇ Telecom Limited
Partnership.
2.3 Principal
Place of Business.
The
principal place of business of the Partnership and the mailing address of the
Partnership shall be c/o Grace Property Management, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. The Partnership may relocate such office from time to
time
or have such additional offices as the General Partners may
determine.
ARTICLE
3
PURPOSES
OF THE PARTNERSHIP
The
character of the business and the purposes of the Partnership are:
(i)
To
own, hold, manage, operate, develop, maintain, improve, lease or otherwise
deal
with the Initial Partnership Property, either alone or in conjunction with
others, and either directly or through other persons or entities;
(ii)
To
liquidate, sell, exchange, dispose of, mortgage or otherwise encumber all or
any
part of the Initial Partnership Property, as the same may be improved or
developed pursuant to subparagraph (i) above, and, in connection therewith,
to
accept, collect, conserve, manage, liquidate, sell, exchange, dispose of,
mortgage or otherwise encumber property, notes or evidences of indebtedness
received pursuant upon disposition of the Initial Partnership
Property;
(iii)
To
assume and discharge liabilities of Telecom as contemplated by the Plan of
Liquidation;
(iv)
To
purchase, sell, retire and generally deal in and with Units; and
(v)
To
carry on any other activities necessary or incidental to any of the foregoing
purposes. In connection with such purposes, the Partnership may acquire such
real or personal property, incur such indebtedness, loan such funds, make such
investments and enter into such ventures, partnerships and other business
arrangements as the General Partners deem necessary or desirable.
ARTICLE
4
TERM
The
term
of the Partnership shall be from the date hereof to December 31, 2050, unless
sooner terminated as hereinafter provided.
ARTICLE
5
CAPITAL
CONTRIBUTIONS
5.1 Initial
Contributions.
The
General Partners, and Telecom as initial Limited Partner, have each contributed
to the Partnership $10 in cash and have received one Unit for such contribution,
which Units shall be cancelled upon the assignment of Units to the shareholders
of Telecom pursuant to the Plan of Liquidation.
5.2 Shareholder
Contributions.
In
exchange for a number of Units designated by Telecom, Telecom as the initial
Limited Partner will contribute the Initial Partnership Property to the
Partnership, subject to certain of Telecom’s liabilities and obligations, and
the Partnership shall assume such liabilities and obligations. The agreed value
of the property contributed to the Partnership by Telecom shall be the excess
of
the amount at which the Initial Partnership Property is initially recorded
on
the books of the Partnership over the amount at which the liabilities of the
Partnership are initially recorded on the books of the Partnership. It is
contemplated that Telecom will assign all of its Units to its shareholders
pursuant to the Plan of Liquidation. Certain Units assigned to the General
Partners as shareholders of Telecom pursuant to the Plan of Liquidation shall
be
specifically designated as General Partner Units. A General Partner may also
be
a Limited Partner and own Limited Partner Units.
5.3 Subsequent
Contributions.
No
Partner shall at any time be required to make additional contributions to the
Partnership or to lend funds to the Partnership, and no Partner shall be liable
for any additional assessment therefor.
5.4 Additional
Units.
The
Partnership may issue additional Units from time to time, for such consideration
and upon such terms and conditions as the General Partners deem advisable;
and
the parties to whom such additional Units are issued may, if the General
Partners so determine, be admitted as additional Limited Partners.
5.5 Partnership
Capital.
The
capital of the Partnership shall be the aggregate amount of the capital
contributions of the Partners.
5.6 Return
of Capital.
No
Partner shall be entitled to a return of capital contributions, and no Partner
shall receive any interest on his capital.
5.7 Negative
Balance in Capital Accounts.
No
Partner with a negative balance in his Capital Account shall be obligated to
any
other Partner or to the Partnership to restore such negative
balance.
ARTICLE
6
ALLOCATION
OF PROFITS AND LOSSES
6.1 Profits
and Losses.
The
“Profits” and “Losses” of the Partnership shall mean (during each fiscal year of
the Partnership) gross receipts from the conduct of the Partnership’s business
minus all expenses, computed in accordance with the accounting method followed
by the Partnership for Federal income tax purposes.
6.2 Allocations.
The
Profits and Losses of the Partnership and all items of income, gain, loss,
deductions or credits which enter into the computation thereof shall be
allocated for each fiscal year of the Partnership among the General Partners
and
the Limited Partners or Record Holders at the end of such fiscal year in
proportion to their respective Participating Percentages and without regard
to
the date, amount or receipt of any distributions which may have been made with
respect to such Units. In the event of a transfer of Units during the fiscal
year, allocations between the transferor and transferee will be made by a
reasonable method to be determined at the discretion of the General Partners
in
accordance with the provisions of the Internal Revenue Code, as then in
effect.
ARTICLE
7
DISTRIBUTIONS
All
distributions of cash or other property by the Partnership, including without
limitation liquidating distributions, to holders of Units arising from their
interest in the Partnership shall be only to Record Holders of Units and at
such
times and in such equal amounts per Unit outstanding as the General Partners
shall determine, in their sole discretion. The General Partners shall designate
a record date prior to each distribution made by the Partnership to determine
the owners of Units who shall be entitled to receive such distributions. The
General Partners shall distribute, at least annually, all Partnership
Distributable Cash.
ARTICLE
8
COMPENSATION
TO GENERAL PARTNERS
8.1 Compensation.
The
General Partners may designate a Managing General Partner who shall have such
responsibilities in the day-to-day affairs of the Partnership as may
specifically be delegated to him by the General Partners, any such delegation
to
be subject to rescission by written notice from any one of the General Partners.
The compensation for the Managing General Partner, if any, and all other General
Partners shall be determined by the unanimous vote of the General
Partners.
8.2 Expenses.
All of
the Partnership’s expenses shall be billed directly to and paid by the
Partnership except that the General Partners shall be entitled to reimbursement
of expenses reasonably incurred in the course of their performance of their
duties under this Agreement upon presentation of an itemized accounting for
such
expenses.
ARTICLE
9
BOOKS,
RECORDS, ACCOUNTING AND
REPORTS,
FISCAL YEAR
9.1 Accounting.
The
Partnership shall keep proper records and books of account which shall reflect
all transactions and other matters relative to the Partnership’s business as are
usually entered into and maintained by persons engaged in businesses of a like
character. The Partnership books and records may be kept on the cash or accrual
basis as the General Partners may determine, shall be maintained at the
principal office of the Partnership or such other place as the General Partners
may determine, and shall be open to inspection and examination by Limited
Partners or their duly authorized representatives at all reasonable times during
usual business hours. The General Partners will make available to any Limited
Partner, or to his duly authorized representative, upon request and at the
Limited Partner’s expense, a current list of names and addresses of, and number
of Limited Partner Units held by, all Limited Partners.
9.2 Tax
Information.
Within
seventy-five (75) days after the end of each fiscal year, the Partnership shall
send to each person who was a Record Holder of any Units during the fiscal
year
then ended such information as shall be necessary to prepare his Federal income
tax returns and any state and local tax returns required of him as a result
of
the operations of the Partnership.
9.3 Annual
Statements.
Within
one hundred and twenty (120) days after the end of each fiscal year, the
Partnership shall send to each Record Holder a report containing (i) a balance
sheet as of the end of such fiscal year, and statements of profit and loss,
partners’ equity and changes in financial position of such fiscal year, all of
which shall be audited by an independent certified public accounting firm,
(ii)
a Cash Flow statement (which need not be audited), and (iii) a summary of the
activities of the Partnership during such fiscal year. Such report shall
separately identify distributions from (a) Cash Flow during the year, (b) Cash
Flow during prior years which has been held as Reserves and (c) Sales and
Refinancing Proceeds.
9.4 Reports.
The
General Partners, at the Partnership’s expense, shall cause to be prepared and
timely filed with appropriate federal and state regulatory and administrative
bodies all reports required to be filed with such entities under then current
and applicable laws, rules and regulations. Such reports shall be prepared
on
the accounting or reporting basis required by such regulatory
bodies.
9.5 Fiscal
Year.
The
fiscal year of the Partnership shall be designated by the General
Partners.
ARTICLE
10
LIMITED
PARTNERS
10.1 Limitation
on Management.
A
Limited Partner shall have no right to, and shall not, take part in the
management or control of the Partnership’s business or act for or bind the
Partnership, and shall only have the rights and powers granted to Limited
Partners hereunder.
10.2 Voting.
The
Limited Partners shall have the right to vote on certain matters in accordance
with the provisions of Article 13 hereof. Subject to the requirements of the
South Carolina Uniform Limited Partnership Act, the Limited Partners shall
have
no right or power to cause the termination and dissolution of the Partnership
except as set forth in this Agreement.
10.3 Lack
of Personal Liability.
No
Limited Partner shall have any personal liability whatsoever, whether to the
Partnership, to the Partners or to creditors of the Partnership, for the debts,
obligations or losses of the Partnership, except to the extent of his interest
in the Partnership.
10.4 Limitation
on Dissolution.
The
death, bankruptcy, mental illness, incompetency, insolvency, dissolution or
cessation of existence as a legal entity of a Limited Partner shall not dissolve
or terminate the Partnership. The authorized representatives of such Limited
Partner shall have all the rights of his predecessor in interest in the
Partnership, including the right to assign his Units, subject to the terms
and
conditions of this Agreement, and shall be deemed upon any assignment to consent
to the designation of his assignee as a substituted Limited
Partner.
ARTICLE
11
GENERAL
PARTNERS
11.1 Management.
The
Partnership shall be managed solely by the General Partners, who shall have
complete and exclusive control over the management, conduct and operation of
the
Partnership’s business and all authority, rights and powers conferred by law and
required or appropriate to the management of the Partnership business, which
shall include, without limitation, the full power to take the following
actions:
(i)
Lease, sell, exchange or grant an option for the sale of all or any portion
of
the real and personal property of the Partnership;
(ii)
Employ and dismiss from employment any and all employees, agents, independent
contractors, real estate managers, brokers, attorneys and
accountants;
(iii)
Let
or lease all or any portion of any property of the Partnership for any purpose
and without limit 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;
(iv)
Borrow money and as a security therefor or for any other Partnership
obligations, mortgage all or any part of the property of the
Partnership;
(v)
Construct, alter, improve, repair, raze, replace or rebuild any property of
the
Partnership;
(vi)
Obtain replacements of any mortgage or mortgages relating in any way to the
property owned by the Partnership, and prepay in whole or in part, refinance,
recast, modify, consolidate or extend any mortgages to any property of the
Partnership;
(vii)
Purchase, sell or retire Units on behalf of the Partnership;
(viii)
Do
any act or execute any document or enter into any contract or agreement of
any
nature necessary or desirable in pursuance of the purpose of the Partnership
including, without limitation, to enter into, modify and perform
agreements;
(ix)
Invest assets of the Partnership in securities and deposits having maturities
of
less than one year from the date of investment;
(x)
Adjust, compromise, settle or refer to arbitration, any claim against or in
favor of the Partnership or any nominee, and to institute, prosecute or defend
any legal proceedings relating to the business and property of the
Partnership;
(xi)
Set
up and, from time to time increase, Reserves for Partnership losses, liabilities
and contingent liabilities as the General Partners in their sole discretion
deem
reasonable and necessary; and
(xii)
Do
any and all of the foregoing at such price, rental or amount for cash,
securities, notes or other property and upon such terms and conditions as the
General Partners in their sole discretion may deem proper, and to execute,
acknowledge and deliver any and all instruments in connection with any or all
of
the foregoing and to take such further action as they may deem necessary or
advisable in connection with the management and business of the
Partnership.
11.2 Action
by General Partners.
Except
as otherwise provided herein, the General Partners shall act (i) by majority
vote of all the General Partners then in office at a meeting duly called; or
(ii) by written consent of all General Partners without a meeting; or (iii)
by
majority vote of all the General Partners then in office in a meeting held
by
means of conference telephone or similar communications equipment by means
of
which all persons participating can hear each other. If there exist only two
General Partners, all action of the General Partners, unless otherwise provided
herein, shall be unanimous.
11.3 Reliance
upon Authority.
No
person, firm or corporation dealing with the Partnership shall be required
to
inquire into the authority of (i) the General Partners to authorize any action
or (ii) any General Partner or agent to take any action, provided that the
authority of such General Partner or agent shall be evidenced by a copy of
the
resolution of the General Partners or the Partners authorizing such action,
certified by one of the General Partners.
11.4 Agents.
The
General Partners may elect or appoint one or more agents to act on behalf of
the
Partnership. Such agents shall be appointed for such term and shall have such
duties and authority in the management of the Partnership as the General
Partners may from time to time determine and may be removed with or without
cause by any of the General Partners. Agents may, but need not, be General
Partners. Nothing in this Agreement shall preclude the employment, at the
expense of the Partnership, of any agent or third party to manage or provide
other services in respect of the Partnership properties subject to the control
of the General Partners.
11.5 Additions
and Vacancies.
Initially the Partnership shall have one (1) General Partner. Thereafter, such
number may be increased or decreased from time to time by action of the General
Partner. Pursuant to the Powers of Attorney granted to them by all of the
Limited Partners, any vacancies shall be filled by action of the General
Partners then in office. Prior to being admitted as a General Partner, each
prospective General Partner shall designate which of the Units held of record
by
him shall become General Partner Units upon his admission, and such Units shall
become General Partner Units immediately upon his admission.
11.6 Meetings;
Notice.
Meetings of the General Partners may be called by any General Partner and held
at such place as shall be fixed by the Notice of Meeting. Notice, whether
written, telephonic or by way of any other mode, of the time and place of each
meeting shall be given not less than five (5) days prior to such meeting. The
notice need not specify the purpose of the meeting. Notice may be waived by
any
General Partner by the execution of a waiver of notice before or after the
meeting. A General Partner who attends a meeting of the General Partners shall
be deemed to have waived notice of such meeting unless he attends for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting has not been lawfully called
or
convened.
11.7 Other
Activities.
The
General Partners shall devote such time to the Partnership business as they,
in
their sole discretion, deem to be necessary to manage and supervise the
Partnership business and affairs in an efficient manner. The General Partners
may engage in, or possess an interest in, other business ventures of any nature
and description independently or with others, including but not limited to
businesses of the character described in Article 3 hereof, and neither the
Partnership nor its Partners shall have any rights in and to such ventures
or
the income or profits derived therefrom, and the pursuit of such activities,
even if competitive with the business of the Partnership, shall not be deemed
wrongful or improper. It is a material part of the consideration for the
execution hereof by each General Partner and each future General Partner that
each Partner waives, relinquishes and renounces any right of claim or
participation with respect to any such activities.
11.8 Contracts
with Partnership.
Any
General Partner or any entity controlling, controlled by or in common control
with any General Partner shall have the right to contract and otherwise deal
with the Partnership for the purchase or sale of property, services or for
any
other purpose pursuant to which he received additional
compensation.
11.9 Termination
as General Partner.
A
General Partner shall cease being a General Partner and his rights and powers
to
act as such shall terminate (except for the right to execute an amendment to
this Agreement or the Certificate to evidence such cessation and termination
pursuant to (c), (d), (e) or (f) below) if:
(a)
he
dies;
(b)
he
becomes mentally incompetent;
(c)
he
voluntarily retires upon not less than ninety (90) days’ written notice to the
other General Partners;
(d)
he
becomes bankrupt;
(e)
in
the case of a General Partner which is a corporation or partnership, the General
Partner dissolves or there is a transfer, whether voluntarily or involuntary,
of
any of the outstanding securities of or partnership interests in the General
Partner; or
(f)
he is
removed by vote of the Partners in accordance with Section 13.1 hereof. If
a
General Partner is removed pursuant to this Section 11.9(f), a successor General
Partner may be elected by vote of the General and Limited Partners in accordance
with Section 13.1 hereof.
Termination
of a person’s status as a General Partner shall not effect his status, if any,
as a Limited Partner, and all General Partner Units held by such person shall
be
deemed immediately converted into Limited Partner Units.
11.10 Consents
by Future General Partners.
Each
present or future General Partner, by becoming a General Partner, consents
to
the admission as an added or substituted General Partner of any party elected
by
the General Partners or otherwise selected as provided herein.
11.11 Definition
of Bankruptcy.
For
purposes of this Agreement, the “bankruptcy” of a General Partner shall be
deemed to have occurred or the General Partner shall be deemed “bankrupt” upon
the happening of any of the following: (i) the filing of an application by
such
General Partner for, or a consent to, the appointment of a trustee of his
assets, (ii) the filing by such General Partner for, or a consent to, the
appointment of a trustee of his assets, (ii) the filing by such General Partner
of a voluntary petition in bankruptcy or the filing of a pleading in any court
of record admitting in writing his inability to pay his debts as they come
due,
(iii) the making by such General Partner of a general assignment for the benefit
of creditors, (iv) the filing by such General Partner of an answer admitting
the
material allegations of, or his consenting to, or defaulting in answering,
a
bankruptcy petition filed against him in any bankruptcy proceeding, (v) the
entry of any order, judgment or decree by any court of competent jurisdiction
adjudicating such General Partner a bankrupt or appointing a trustee of his
assets, and such order, judgment or decree continuing unstayed and in effect
for
any period of ninety (90) consecutive days.
11.12 Agency.
Nothing
in this Agreement shall be construed as establishing any General Partner as
an
agent of any Limited Partner except pursuant to the Power of Attorney set forth
in Article 18 hereof.
ARTICLE
12
INDEMNIFICATION
OF GENERAL PARTNERS
12.1 Liability
of General Partners.
The
General Partners shall have a fiduciary responsibility for the safekeeping
and
use of all funds and assets of the Partnership, whether or not such funds are
in
their immediate possession or control. No General Partner shall be liable to
the
Partnership or any of the other Partners for any act or omission performed
or
omitted by him in his capacity as a General Partner, other than for his gross
negligence or willful malfeasance.
12.2 Indemnification
of General Partners and Agents.
The
Partnership shall indemnify and hold harmless each person or entity who is
or
was a General Partner, an officer, director or stockholder of any corporate
General Partner, a partner in any General Partner which is itself a partnership,
an agent appointed and designated by the General Partners as an “Indemnified
Party” and the heirs, executors and administrators of each of them (herein the
“Indemnified
Parties”),
from
and against any loss, expense, damage or injury suffered or sustained by him
by
reason of any act, omission or alleged act or omission arising out of his
activities with respect to the Partnership, including, but not limited to,
any
judgment, fine, penalty, award, settlement, reasonable attorney’s fees and other
costs or expenses incurred in connection with the defense of any actual or
threatened action, suit, proceeding, investigation or claim, be it civil,
criminal, administrative, legislative or other, or any appeal relating thereto
which is brought or threatened either by or in the right of the Partnership
(herein called a “derivative
action”)
or by
any other person, governmental authority or instrumentality (herein called
a
“third-party
action”)
(and
including any payments made by any corporate General Partner to any of its
officers, directors or stockholders pursuant to an indemnification agreement
no
broader than this Section 12.2); provided that the act, omission or alleged
act
or omission upon which such actual or threatened action, suit, proceeding,
investigation or claim is based (i) in the case of a derivative action was
not
performed or omitted fraudulently or as a result of gross negligence or willful
malfeasance by such Indemnified Party and (ii) in the case of a third-party
action was performed or omitted in good faith in what the Indemnified Party
believed to be in, or not opposed to, the best interests of the Partnership.
To
the extent that an Indemnified Party has been successful on the merits or
otherwise in defense of any such proceeding or in defense of any claim or matter
therein, it shall be deemed that the applicable criteria established in (i)
or
(ii) of the preceding sentence have been satisfied. The determination under
any
other circumstances as to whether an Indemnified Party acted fraudulently,
or
with gross negligence or willful malfeasance or in good faith in what the
Indemnified Party believed to be in, or not opposed to, the best interests
of
the Partnership shall be made by action of the General Partners who were not
parties to such proceedings, or by independent legal counsel selected by the
General Partners in a written opinion or by a court of appropriate jurisdiction.
Expenses incurred in defending any derivative action or third-party action
may
be paid by the Partnership as they are incurred upon receipt, in each case,
of
any undertaking by or on behalf of the relevant Indemnified Party to repay
such
amounts, unless it shall ultimately be determined that such Indemnified Party
is
entitled to be indemnified by the Partnership in accordance with this Section
12. The indemnification provided hereunder shall not be deemed exclusive of
any
other rights to which the Indemnified Parties may be entitled under any
applicable statute, agreement, vote of the General Partners or General and
Limited Partners or otherwise.
12.3 Liability
Insurance.
The
General Partners may cause the Partnership to purchase and maintain, at the
expense of the Partnership, insurance on behalf of any General Partner, any
officer, director or stockholder of any corporate General Partner, a partner
in
any General Partner which is itself a partnership or any agent appointed and
designated by the General Partners as an Indemnified Party against any liability
asserted against him or incurred by him in any such capacity or arising out
of
his status as such, whether or not the Partnership would have the power to
indemnify him against such liability under the provisions of Section 12.2
hereof.
12.4 Satisfaction
of Judgments.
All
judgments against the Partnership and the General Partners, wherein the General
Partners are entitled to indemnification, must first be satisfied from
Partnership assets before the General Partners are responsible for those
obligations.
12.5 Non-Recourse
Liability.
The
General Partners shall have the right and authority to require in all
Partnership contracts and obligations that they will not be personally liable
thereon and that the person or entity contracting with the Partnership is to
look solely to the Partnership and its assets for satisfaction.
ARTICLE
13
ACTIONS
BY THE PARTNERS
13.1 Actions.
The
following actions may be taken only at a meeting of both the General and Limited
Partners held pursuant to Section 13.4 hereof at which Partners having a right
to cast a majority of the total Partnership votes eligible to be cast are
present in person or by proxy:
(a)
amendment of this Agreement pursuant to Section 18.6 hereof except as otherwise
provided therein;
(b)
dissolution of the Partnership pursuant to Section 16. l(d) hereof;
(c)
removal of a General Partner and election of a successor General Partner
pursuant to Section 11.9(f) hereof;
(d)
election of a successor General Partner or successor General Partners pursuant
to Section 16.1(e) hereof or election of a liquidator, pursuant to Section
17.1
hereof.
Any
proposal submitted to a vote of the General and Limited Partners in accordance
with this Section 13.1 shall be approved if a majority of the votes eligible
to
be cast at such meeting are voted in favor thereof.
13.2 Limitation
on Voting.
The
right of the Limited Partners to vote pursuant to this Agreement shall extend
solely to those matters expressly set forth in Section 13.1 hereof.
Notwithstanding anything to the contrary contained in this Agreement, no action
by vote of the General and Limited Partners shall be effective unless and until
the Partnership shall have received an opinion of counsel or ruling from the
Internal Revenue Service, that such action will not cause the Partnership to
cease being characterized as a partnership rather than an association taxable
as
a corporation for purposes of the Internal Revenue Code, as then in
effect.
13.3 Record
Date.
At each
meeting of the General and Limited Partners held pursuant to Section 13.4
hereof, each Partner shall be entitled to cast one vote for each General Partner
Unit and each Limited Partner Unit held of record by such Partner. A Partner
shall not, however, have the right to cast any vote with respect to any Units
which such Partner holds as a Record Holder, but not as a Partner. Units held
on
the record date of a meeting by Record Holders who have not become substituted
Limited Partners with respect to such Units shall, solely for the purposes
of
such vote and determination of the number of votes eligible to be cast, be
deemed not to be outstanding.
13.4 Call
of Meetings.
Meetings of the General and Limited Partners for the purpose of taking any
action which the Partners are permitted to take under Section 13.1 hereof may
be
called at any time by any General Partner, shall be called by a General Partner
if requested in writing by Limited Partners holding ten percent (10%) or more
of
the outstanding Limited Partner Units, and may be called by Limited Partners
holding ten percent (10%) of the outstanding Limited Partner Units if there
are
no remaining General Partners at the time such meeting is called.
13.5 Notice.
All
meetings of the General and Limited Partners shall be held at such place within
or without the State of South Carolina as the Partner or Partners calling the
meeting shall designate. Written notice stating the place, day and hour of
any
meeting of the General and Limited Partners and the purpose or purposes for
which such meeting is called shall be mailed to each Partner entitled to vote
at
the meeting at his last known post office address shown on the books of the
Partnership not less than fifteen (15) days nor more than forty (40) days before
the date of the meeting. If the meeting is called by a General Partner pursuant
to a request by Limited Partners under Section 13.4 hereof, such notice shall
be
given within ten (10) days after the General Partner calling the meeting has
received such request, provided that the giving of such notice may be delayed
to
permit the General Partners to comply with applicable law requirements. Failure
to receive notice of such meeting on the part of any Partner shall not affect
the validity of any act or proceeding at such meeting, provided that Partners
having a right to cast a majority of the votes eligible to be cast are present
thereat, either in person or by proxy. Only matters set forth in the notice
of
meeting may be voted on at such meeting.
13.6 Record
Date.
The
Partner or Partners calling a meeting of the General and Limited Partners shall
establish a record date not more than fifty (50) days prior to the date of
such
meeting for purposes of determining eligibility to vote at such meeting and
the
number of votes to which any Partner will be entitled, and the Partnership
shall
prepare, at least fifteen (15) days prior to such meeting, a list setting forth
the names of each Partner entitled to vote at the meeting and the number of
votes he will be entitled to cast. This list shall be available for examination
at the principal office of the Partnership during regular business
hours.
13.7 Proxies.
A
Partner may vote at any meeting of the General and Limited Partners in person
or
by written proxy filed with the Partnership before or at the time of the
meeting. The Law of the State of South Carolina pertaining to corporate proxies
will govern all Partnership proxies. The General Partners may before any meeting
of the General and Limited Partners appoint two inspectors of Partners’ votes
and election to serve at such meeting. If the General Partners fail to make
such
appointment or if their appointees or either of them fail to appear at such
meeting, the chairman of the meeting may appoint one or more inspectors to
act
at that meeting.
13.8 Chairman.
Meetings of the General and Limited Partners shall be presided over by any
person appointed by the General Partners or, if no such person is present or
appointed, by a chairman to be elected at the meeting.
ARTICLE
14
NET
WORTH REPRESENTATION
The
General Partners jointly and severally represent and warrant that as of the
date
hereof the General Partners have an aggregate net worth of not less than Two
Hundred Thousand ($200,000.00) Dollars, and throughout the term of this
Agreement they shall have an aggregate net worth of not less than Two Hundred
Thousand ($200,000.00) Dollars, in each case exclusive of their interest in
the
Partnership. Further, upon the funding of the Partnership, the General Partners
jointly and severally shall either make a capital contribution to the
Partnership as General Partners of one (1%) percent of the total capital
contributions to the Partnership or, if such initial contribution is not made
by
the General Partners, the General Partners jointly and severally shall restore
to the Partnership any negative balance in the Capital Accounts of the
Partnership equal to one (1%) percent of the initial capital contributions
to
the Partnership.
ARTICLE
15
TRANSFER
OF PARTNERSHIP INTERESTS
15.1 Certificates.
The
Partnership shall issue certificates evidencing the ownership of Units, which
shall be in such form as shall be approved by the General Partners.
15.2 Assignment
of Units.
Upon
compliance with the applicable provisions restricting the transfer of Units,
transfers of Units by a Limited Partner or any assignee of one or more Units
who
has not become a substituted Limited Partner shall be made on the books of
the
Partnership promptly upon surrender of the certificate therefor properly
endorsed for transfer by the person named in the certificate, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Partnership or with a transfer agent or a registrar, if any, and upon the
payment of all necessary transfer taxes due thereon and compliance with the
conditions of this Article 15, but in any event such transfer shall take place
not later than the last day of the calendar month following the month of receipt
by the Partnership of the aforementioned documentation and tax payment. Every
certificate exchanged, returned or surrendered to the Partnership shall be
marked “Cancelled” with the date of cancellation, by a duly authorized agent of
the Partnership or the transfer agent thereof.
15.3 Ownership
Ledger.
The
Partnership shall maintain an Ownership Ledger listing the name and address
of
each owner of one or more Units, the number of Units held by such owner and
indicating whether such Units are held by such owner in his capacity as Limited
Partner or General Partner or solely as a Record Holder. The Partnership shall
treat each person or entity listed on the Ownership Ledger as the Record Holder
of the Units listed therein in his name and as a Partner with respect to the
Units listed therein as being held by him or it in such capacity. Transfers
or
assignments of Units, and substitutions of Limited Partners with respect to
Units, shall be effective only when entered in the records of the Partnership,
and no transfer or assignment of Units or substitution of Limited Partners
with
respect to Units shall be valid as against the Partnership, its Partners or
its
creditors for any purpose until it shall have been so entered. Only whole Units
may be transferred. Additional Units acquired of record by a person who is
already a Limited Partner shall not be deemed held by him in the capacity of
a
Limited Partner until all transfer requirements related to substitution have
been satisfied with respect to such additional Units.
15.4 Conditions
to Transfer.
No
assignment of Units, whether from a Limited Partner or a Record Holder, shall
be
effective and entered on the Ownership Ledger unless all of the following
conditions have been satisfied:
(a)
the
Units shall have been duly transferred to the assignee in accordance with this
Article 15;
(b)
the
assignee shall have delivered to the transfer agent, or General Partners, the
certificates, if any, to be entered in his name on the Ownership
Ledger;
(c)
the
assignor and assignee shall have executed and acknowledged such instruments
as
the transfer agent, or the General Partners, may deem necessary or desirable
to
effect such transfer;
(d)
the
assignee shall have delivered to the transfer agent, or General Partners, a
non-refundable transfer fee, to the extent and in an amount to be established
by
the General Partners for the administrative fees and expenses related to
transfers, which fee shall initially be $15.00 and shall not be returned to
the
assignee even if no transfer is completed;
(e)
all
the General Partners shall have determined, based on an opinion of counsel
in
form and substance satisfactory to them in their sole discretion, that such
transfer:
|
(i)
|
will
not result in termination of the Partnership as a partnership for
Federal
income tax purposes;
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(ii)
|
will
not change the status of the Partnership as a partnership for Federal
income tax purposes; and
|
|
(iii)
|
will
not give rise to liability of the Partnership, any Partner or any
agent or
advisor of the Partnership for violation of the securities laws of
the
United States or any state thereof;
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(f)
all
of the General Partners shall have consented in writing to such transfer, the
granting or denial of which consent shall not be unreasonably
withheld.
Any
purported assignment of Units which is not in compliance with this Article
15 is
hereby declared to be null and void and of no force or effect
whatsoever.
15.5 Conditions
to Substitution as Limited Partner.
The
assignee of Units from a Limited Partner, directly or through subsequent
transferors, including through one or more Record Holders, shall have the right
to become a substituted Limited Partner in place of such Limited Partner with
respect to the Units so assigned if all of the following conditions have been
satisfied:
(a)
the
Units shall have been duly transferred to the assignee in accordance with this
Article 15;
(b)
the
assignor and assignee shall have executed and acknowledged such instruments
as
the General Partners may deem necessary or desirable to effect such admission,
including the written acceptance and adoption by the assignee of all the
provisions of this Agreement (including the power of attorney set forth in
Article 18 hereof) as amended to the date of such transfer;
(c)
the
assignee shall have delivered to the transfer agent, or General Partners, the
certificates, if any, in his name evidencing that he is the Record Holder of
the
Units with respect to which he is to become a substituted Limited
Partner;
(d)
the
assignee shall have delivered to the Partnership a non-refundable fee to the
extent and in an amount to be established by the General Partners for the
administrative fees and expenses related to substitutions, which fee shall
initially be $50.00 and shall not be returned to the assignee even if no consent
to substitution is granted;
(e)
all
the General Partners shall have determined, based on an opinion of counsel
in
form and substance satisfactory to them in their sole discretion, that such
substitution:
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(i)
|
will
not result in termination of the Partnership as a partnership for
Federal
income tax purposes;
|
|
(ii)
|
will
not change the status of the Partnership as a partnership for Federal
income tax purposes; and
|
|
(iii)
|
will
not give rise to liability of the Partnership, any Partner or any
agent or
advisor of the Partnership for violation of the securities laws of
the
United States or any state thereof;
|
(f)
all
of the General Partners shall have consented in writing to such substitution,
the granting or denial of which consent shall be in the sole discretion of
such
General Partners.
By
assigning any Units, the assignor shall be deemed to have consented to the
assignee or any subsequent assignee becoming a substituted Limited Partner
in
his place or in the place of any predecessor Limited Partner with respect to
the
Units assigned in accordance with the terms hereof. Any substitution of Limited
Partners pursuant to this Section 15.5 shall be effective and entered on the
Ownership Ledger of the Partnership only as of the opening of business on such
date or dates as shall be established by the General Partners at least once
each
calendar year after all of the conditions set forth above have been satisfied,
and the General Partners shall not be required to amend the Certificate and
Agreement of Partnership more than once each calendar year to reflect such
substitutions.
15.6 Initial
Partners.
Notwithstanding anything to the contrary contained in this Article 15,
shareholders of Telecom who are assigned Units pursuant to the Plan of
Liquidation shall thereupon become Record Holders and shall be listed on the
Ownership Ledger of the Partnership as such. A shareholder shall be substituted
as a Limited Partner with respect to Units held by him, other than such Units
which are designated as General Partner Units, promptly after such shareholder
has (i) complied with all instructions of the Partnership or its transfer agent
with respect to the delivery of such shareholder’s certificates of stock of
Telecom to the Partnership or transfer agent for cancellation and (ii) executed
a Limited Partnership Page and other documents necessary to agree to the terms
of this Partnership and to become a substituted Limited Partner. Such
substitution of Limited Partners, and recordation as General Partner Units,
with
respect to which the foregoing conditions have been satisfied, as well as
recordation of Record Holders, shall be entered on the Ownership Ledger of
the
Partnership as of the opening of business on such date as shall be established
by the General Partners. A shareholder who does not become a substituted Limited
Partner shall possess the rights of a Record Holder as set forth in Section
15.7
below.
15.7 Effect
of Assignment.
If an
assignment has become effective as provided in Section 15.2 hereof, the assignee
Record Holder shall only be entitled to receive distributions from the
Partnership attributable to the Units acquired by reason of such assignment
from
and after the date the assignment of the Units to him became effective in
accordance with Section 15.2 hereof. The Partnership and the General Partners
shall be entitled to treat the assignor of such Units as the absolute owner
thereof in all respects prior to the time such assignment shall become effective
as set forth in Section 15.2 hereof. Except as otherwise specifically provided
in this Agreement, a Record Holder who has not become a substituted Limited
Partner shall have no right to require any information or account of Partnership
transactions, receive notices or reports, inspect the Partnership books and
records, vote or exercise any other rights of a Limited Partner.
15.8 Effect
of Substitution.
Any
Record Holder admitted to the Partnership as a substituted Limited Partner
shall
have all the rights of a Limited Partner hereunder and shall be subject to
and
bound by all the provisions of this Agreement as if originally a party to this
Agreement.
15.9 Consent.
Each
Partner hereby consents to the admission of substituted Limited Partners by
the
General Partners and to any assignee, directly or through subsequent
assignments, of any whole number of his Units becoming a substituted Limited
Partner.
15.10 General
Partner Transfers.
No
assignment of General Partner Units by a General Partner, other than to the
executors or administrators of his estate upon his death, shall be effective
until the Partnership shall have received an opinion of counsel that such
assignment will not cause the Partnership to cease being characterized as a
partnership rather than an association taxable as a corporation for purposes
of
the Internal Revenue Code, as then in effect. Except for the preceding
restriction, a General Partner may assign his General Partner Units in the
same
manner as a Limited Partner. Any such assignment of less than all of the Units
of a General Partner shall not constitute a withdrawal by the General Partner
from the Partnership. Any assignee of General Partner Units (other than another
General Partner) shall be deemed an assignee of Limited Partner Units to the
extent of such assignment. Any such assignee shall be eligible to become a
substituted Limited Partner as set forth in Sections 15.3 and 15.5
hereof.
15.11 Lost
Certificates.
The
Partnership may issue a new certificate in place of any certificate theretofore
issued by it which is alleged to have been lost, stolen, mutilated or destroyed.
The General Partners may, in their discretion, as a condition to the issuance
of
any such new certificates, require the owner of any lost, stolen, mutilated
or
destroyed certificate or his legal representatives to make proof satisfactory
to
the General Partners of the loss, destruction, mutilation or theft thereof,
and
to give the Partnership and its transfer agents and registrars or such of them
as the General Partners may require a bond in such form with such surety or
sureties as the General Partners (with the approval of their transfer agents
and
registrars) may direct, sufficient to indemnify the Partnership and its transfer
agents and registrars against any claim that may be made against any of them
on
account of the continued existence of any such certificate so alleged to have
been lost, stolen, mutilated or destroyed.
15.12 Transfer
Agent.
The
Partnership may from time to time maintain one or more transfer offices or
agencies and registry offices or agencies at such place or places as may be
determined from time to time by the General Partners.
15.13 Regulations.
The
General Partner may make such other rules and regulations as they may deem
expedient, not inconsistent with this Agreement, concerning the issue, transfer
and registration of Units.
ARTICLE
16
DISSOLUTION
16.1
The
Partnership shall be dissolved upon the earliest to occur of the
following:
(a)
The
death, retirement, dissolution, bankruptcy, mental illness, incompetency or
removal of any General Partner; however, all, but not fewer than all, of the
remaining General Partners may elect to continue the business of the
Partnership, in which event the electing General Partner(s) shall file an
appropriate amendment to the Agreement and Certificate within sixty (60) days
after the event giving rise to such election and the Partnership shall not
be
terminated, but shall continue with the remaining General Partner(s) as the
General Partner(s);
(b)
the
expiration of the term of the Partnership;
(c)
the
sale, or other disposition of all or substantially all of the Partnership’s
assets;
(d)
the
vote in favor of dissolution and termination by the General and Limited Partners
in accordance with Section 13.1(b) hereof; or
(e)
the
death, retirement, dissolution, bankruptcy, mental illness, incompetency or
removal of the last remaining General Partner, unless, within one hundred and
twenty (120) days of such event, the General and Limited Partners elect a
successor General Partner or successor General Partners in accordance with
Section 13.1(d) hereof and all of such successor General Partners elect to
continue the Partnership business. Upon the election to continue, such General
Partner(s) shall file an appropriate amendment to the Agreement and Certificate
within such one hundred and twenty (120) day-period, and the Partnership shall
not be terminated but shall continue with such successor General Partner(s)
as
the only General Partner(s).
ARTICLE
17
LIQUIDATION
17.1
If
the Partnership is dissolved and no election to continue is made, (i) the
General Partner(s), or (ii) in the event of a dissolution in accordance with
Section 16.1(e) hereof, a liquidator elected by vote of the General and Limited
Partners in accordance with Section 13.1(d) hereof or (iii) the liquidating
trustee appointed pursuant to Section 17.2 hereof shall immediately commence
to
wind up the Partnership affairs and to liquidate the assets of the Partnership
in an orderly and businesslike manner so as not to involve undue sacrifice.
The
General Partner(s) (or liquidator or liquidating trustee) shall have full right
and unlimited discretion to determine the time, manner and terms of any sales
of
Partnership property pursuant to such liquidation, having due regard to the
activity and condition of the relevant market and general financial and economic
conditions. The Partners shall continue to share profits and losses during
liquidation in the same manner as before dissolution, and the proceeds of
liquidation, including each Partner’s proportionate share of the face value of
any purchase money mortgage received upon the sale of Partnership property,
shall be applied and distributed in the following order of
priority:
(i)
To
the payment of debts and liabilities of the Partnership (other than any loans
or
advances that may have been made by any of the Partners to the Partnership)
and
the expenses of liquidation.
(ii)
To
the setting up of any Reserves which the General Partner (or liquidator or
liquidating trustee) may deem reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Partnership, arising out of or
in
connection with the Partnership. Such Reserves shall be paid over to an escrowee
designated by the General Partners (or liquidator or liquidating trustee) to
be
held by him for the purpose of disbursing such reserves in payment of any of
the
aforementioned contingencies, and, at the expiration of such period as the
General Partners (or liquidator or liquidating trustee) shall deem advisable,
to
distribute the balance thereafter remaining in the manner hereinafter
provided.
(iii)
To
the repayment of any loans or advances that may have been made by any of the
Partners to the Partnership, but if the amount available for such repayment
shall be insufficient, then pro rata on account thereof.
(iv)
Any
balance then remaining, including the face amount of any note secured by a
purchase money mortgage received by the Partnership, shall be distributed first
to the Limited Partners to reduce to zero any positive balance then existing
in
the capital accounts of the Limited Partners in the ratio which the capital
account of each Limited Partner bears to the total capital accounts of all
Limited Partners.
(v)
After
the capital accounts of the Limited Partners have been reduced to zero, the
balance then remaining shall next be distributed to the General Partners to
reduce any positive balance then existing in the General Partners’ capital
account to zero in the ratio which the capital account of each General Partner
bears to the total capital accounts of all General Partners.
(vi)
Any
balance then remaining shall be distributed to Partners or Record Holders based
upon each Partner’s or Record Holder’s Participating Percentage in the
Partnership.
17.2 Liquidating
Trustee.
The
liquidation of the assets of the Partnership, including the collection and
distribution of proceeds pursuant to any note secured by a purchase money
mortgage received by the Partnership, and discharge of the liabilities of the
Partnership, may be carried out by a liquidating trustee or receiver, who shall
be a bank or trust company or other person or firm having experience in
managing, liquidating or otherwise handling property of the type then owned
by
the Partnership. Such liquidating trustee or receiver shall be designated by
the
General Partners. The General Partners may thereupon resign as General Partners
and shall thereafter be treated solely as Limited Partners with respect to
all
Partnership Units owned by them.
17.3 Final
Report; Cancellation of Partnership.
Within
a reasonable time following the completion of the liquidation of the
Partnership’s properties, the General Partner(s), or liquidator or liquidating
trustee, as the case may be, shall render to the Partners a statement audited
by
the Partnership’s independent accountants setting forth the assets and
liabilities of the Partnership as of the date of complete liquidation. Upon
compliance with the foregoing distribution plan, the Limited Partners shall
cease to be such, and the General Partners as the sole remaining Partners of
the
Partnership or the liquidator or liquidating trustee, as the case may be, shall
execute, acknowledge and cause to be filed a certificate of cancellation of
the
Partnership.
17.4 General
Partners Not Liable.
The
General Partners shall not be personally liable for the payment of the amount
standing in the individual accounts of the Limited Partners or any portion
thereof or for the return of all or any part of the contributions of the Limited
Partners to the capital of the Partnership. Any such payment or return shall
be
made solely from Partnership assets.
ARTICLE
18
POWER
OF ATTORNEY;
AMENDMENT
OF AGREEMENT AND CERTIFICATE
18.1 Filing.
The
General Partners shall promptly cause the Agreement and Certificate to be filed
and recorded in accordance with the South Carolina Uniform Limited Partnership
Act and as required by law in each state in which the Partnership hereafter
establishes a place of business. The General Partners shall also promptly cause
to be filed, recorded and published such Statements of Fictitious Business
Name
and other notices, certificates, statements or other instruments required by
a
provision of any applicable law of the United States or any state or other
jurisdiction.
18.2 Actions
Authorized by Power of Attorney.
Each
Partner hereby makes, constitutes and appoints the initial General Partners
of
the Partnership or any of them and each person who shall hereafter become a
General Partner or who shall be elected as a liquidator pursuant to Section
17.1
or designated as the liquidating trustee pursuant to Section 17.2, with full
power of substitution, the true and lawful attorney of, and in the name, place
and stead of such Partner, with the power from time to time to execute,
acknowledge, make, swear to, verify, deliver, record, file and/or publish (i)
this Agreement or the Certificate under the laws of the State of South Carolina
or any other jurisdiction, any amendment to this Agreement or the Certificate
(including, but not limited to, amendments reflecting the withdrawal or
admission of any Partner or the return, in whole or in part, of the contribution
of any Partner or the addition or substitution of Limited or General Partners);
(ii) any amendment to this Agreement or the Certificate or any other document,
instrument or certificate required to reflect any action of the Limited and
General Partners or the General Partners provided for in this Agreement
(including, but not limited to the admission of new General Partners, the
dissolution and termination of the Partnership and the amendments permitted
by
Section 18.6, whether or not such Partner voted in favor of or otherwise
consented to such action; and (iii) any other instrument, certificate or
document as may be required by any regulatory agency, the laws of the United
States, any state or any other jurisdiction in which the Partnership is doing
or
intends to do business or which the General Partners deem advisable to file
or
record, provided such instrument, certificate or document is in accordance
with
the terms of this Agreement as then in effect.
18.3 Reliance
by Partners.
Each
Partner is aware that the terms of this Agreement permit certain amendments
of
this Agreement to be effected and certain other actions to be taken or omitted
by or with respect to the Partnership without his consent. Such actions include,
without limitation, admission of new General Partners duly elected or designated
by the General Partners. If (i) an amendment of the Certificate or this
Agreement or any action by or with respect to the Partnership is approved in
the
manner contemplated by this Agreement and (ii) a Partner has failed or refused
to approve such amendment or action (hereinafter referred to as a “non-consenting
Partner”),
each
non-consenting Partner agrees that each special attorney specified above is
authorized and empowered, with full power of substitution, to execute,
acknowledge, make, swear to, verify, deliver, record, file and/or publish,
for
and in behalf of such non-consenting Partner and in his name, place and ▇▇▇▇▇,
any and all instruments and documents which may be necessary or appropriate
to
permit such amendment to be lawfully made or action lawfully taken or omitted.
Each consenting or non-consenting Partner is fully aware that he and each other
Partner have executed this special power of attorney, and that each Partner
will
rely on the effectiveness of such powers with a view to the orderly
administration of the Partnership’s affairs.
18.4 Irrevocability
of Power of Attorney.
The
grant of authority set forth above in this Article 18 is a Special Power of
Attorney coupled with an interest in favor of the General Partners, liquidator
or liquidating trustee and as such: (i) shall be irrevocable and shall survive
the death, incompetency, mental illness or insanity (or, in the case of a
Partner that is a corporation, association, partnership, joint venture or trust,
shall survive the merger, dissolution or other termination of existence) of
the
Partner; (ii) may be exercised for the Partnership by a facsimile signature
of
any General Partner of the Partnership or by listing all of the Limited and
General Partners, including such Partner, and executing any instrument with
a
single signature of any General Partner acting as attorney-in-fact for all
of
them; and (iii) shall survive the assignment by the Partner of the whole or
any
portion of his Units, except that where the assignee of the whole thereof has
become a substituted Limited or General Partner, this Power of Attorney shall
survive such assignment for the sole purpose of enabling a General Partner
to
execute, acknowledge and file any instrument necessary to effect such
substitution and shall thereafter terminate.
18.5 Substituted
Limited Partners.
A
similar power of attorney shall be one of the instruments which the General
Partners, under Section 15.5 hereof, shall require an assignee of a Limited
Partner to execute as a condition of such assignment and admission as a
substituted Limited Partner. Such power of attorney may be set forth on checks
or other instruments distributed by the Partnership to Partners or assignees
from time to time.
18.6 Amendments.
This
Agreement may be amended by vote of the General and Limited Partners in
accordance with Section 13.1(a) hereof, provided that the following categories
of amendments may be made by the General Partners and shall not require the
consent of any of the Limited Partners: (i) amendments to add to the
representations, duties or obligations of the General Partners or surrender,
for
the benefit of the Limited Partners, any right or power granted to the General
Partners herein; (ii) amendments to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Agreement which will not be inconsistent with the provisions of
this
Agreement; (iii) amendments to delete or add any provision of this Agreement
required to be so deleted or added by the staff of the Securities and Exchange
Commission or other federal agency or by any state “blue sky” commissioner or
similar such official; and (iv) amendments required in the opinion of counsel
to
the Partnership to comply with existing Federal income tax laws, regulations,
cases and rulings affecting the status of the Partnership as a partnership,
and
not an association taxable as a corporation, for Federal income tax purposes.
Notwithstanding anything to the contrary contained elsewhere in this Agreement,
no amendment to this Agreement shall (i) affect the limited liability of the
Limited Partners, (ii) affect the provisions regarding allocations of profit
and
loss and distributions of cash or other property or (iii) modify the provisions
of this Section 18.6.
18.7 Substitution
Amendment; Election to Continue Amendment.
Any
amendment to this Agreement or the Certificate substituting a Limited Partner
or
adding a General Partner shall be signed by any General Partner and by the
person to be substituted as a Limited Partner or added as a General Partner,
and
shall also be signed by the assigning Partner in the case of substitution.
Any
amendment reflecting the determination of the remaining General Partner(s)
to
continue the business of the Partnership upon the retirement, death,
dissolution, mental illness, incompetency, removal or bankruptcy of a General
Partner need be signed only by any General Partner. The execution of any such
amendment on behalf of a Partner or any proposed substituted or added Partner
may be effected by his attorney-in-fact.
ARTICLE
19
MISCELLANEOUS
MATTERS
19.1 No
Partition.
The
Partners agree that the Partnership properties are not and will not be suitable
for partition. Accordingly, each of the Partners hereby irrevocably waives
any
and all rights that he may have to maintain any action for partition of any
of
the Partnership property.
19.2 Certain
Tax Elections.
In the
event of the transfer of interest by a Partner, or the death of a Partner,
or
the distribution of any Partnership property to any Partner, the Partnership
may, at the General Partner’s option, file an election, in accordance with
applicable Treasury Regulations, to cause the basis of the Partnership’s
property to be adjusted for Federal income tax purposes as provided in Section
734, 743, and 754 of the Internal Revenue Code, as then in effect.
19.3 Counterparts.
This
Agreement may be executed in several counterparts and all so executed shall
constitute one Partnership Agreement, binding on all of the parties hereto,
notwithstanding that all of the parties are signatory to the original or the
same counterpart.
19.4 Successors
and Assigns.
The
terms and provisions of this Agreement shall be binding upon and shall inure
to
the benefit of the successors and assigns of the respective
Partners.
19.5 Severance.
If any
clause, sentence or paragraph of this Agreement is declared by any competent
authority to be void, such clause, sentence or paragraph shall be deemed severed
from the remainder of the Agreement and the balance of the Agreement shall
remain in effect.
19.6 Notices.
All
notices under this Agreement shall be in writing and shall be given to the
Record Holders entitled thereto, by personal service or by mail, posted to
the
address maintained by the Partnership for such person. Such address may be
changed on the records of the Partnership only upon the Record Holder’s
notifying the Partnership of such change in such manner as the General Partners
shall from time to time determine. All notices hereunder shall be deemed given
upon personal service or two (2) days after mailing as set forth
above.
19.7 Headings.
Paragraph titles or captions contained in this Agreement are inserted only
as a
matter of convenience and for reference and in no way define, limit, extend
or
describe the scope of this Agreement or the intent of any provision
thereof.
19.8 Variation
in Pronouns.
All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, singular or plural, as the identity of the person or persons may
require.
19.9 Modifications.
No
modifications or waiver of this Agreement, or any part hereof, shall be valid
or
effective unless set forth in writing and executed by the party or parties
sought to be charged therewith; and no waiver of any breach or condition of
this
Agreement shall be deemed to be a waiver of any subsequent breach or conditions,
whether of like or different nature.
19.10 Applicable
Law.
It is
the intention of the parties that the internal laws of the State of South
Carolina shall govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the
parties.
19.11 Entire
Agreement.
This
Agreement constitutes the entire understanding and agreement among the parties
hereto with respect to the subject matter hereof, and there are no agreements,
understandings, restrictions, representations or warranties among the parties
other than those set forth herein.