EXHIBIT 3
AMENDED AND RESTATED AGREEMENT
OF GENERAL PARTNERSHIP
OF
▇▇▇▇▇ & PARTNERS
This Agreement of General Partnership (the "Agreement") is made by and
between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ of Dallas, Texas ("TGE") and ▇▇▇▇▇ Asset
Management, L.L.C., a Texas limited liability company ("EAM") (together, the
"Partners") as of the 1st day of January 1998.
RECITALS
A. Pursuant to an Agreement of General Partnership dated as of September 1,
1991 (the "Original Agreement"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("RWF") and TGE formed
the Partnership which, prior to the date hereof, has been known as "▇▇▇▇▇▇ ▇▇▇▇▇
Partners."
B. Pursuant to a Withdrawal Agreement effective as of December 31, 1997
(the "Withdrawal Agreement"), RWF has withdrawn from the Partnership and TGE and
EAM have acquired RWF's interest in the Partnership such that, after
consummation of the transactions contemplated by the Withdrawal Agreement, TGE
owns 99% of the partnership interests of the Partnership and EAM owns 1% of the
partnership interests of the Partnership.
C. The Partners desire to continue the Partnership without dissolution and
to amend and restate the original agreement in its entirety.
In consideration of the covenants and conditions contained herein, and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Partners agree as follows:
1. Continuation. The Partners hereby agree to continue the Partnership
without dissolution as a general partnership in accordance with the provisions
of the Revised Partnership Act of the State of Texas and on the terms and
conditions set forth in this Agreement.
2. Name. The business of the Partnership will be conducted under the name
"▇▇▇▇▇ & Partners."
3. Term. The term of the Partnership commenced effective September 1, 1991
and will continue until December 31, 2050, unless previously terminated in
accordance with the terms of this Agreement.
4. Purpose. The purposes of this Partnership are (a) to operate the General
Partnership of Value Partners, Ltd.; (b) engage in any and all activities
related or incident to the rendition of such services, and (c) to engage in any
and all other activities as the Partners may agree. Neither Partner will be
obligated to make available to the Partnership any business opportunities by
either of them that are not within the scope of the business and purpose of the
Partnership described in this Section 4.
5. Partnership Interests. The partnership interests of the Partners (the
"Partnership Interest") will be: TGE, 99%; EAM 1%.
6. Contributions and Distributions. The Partners will fund all capital
requirements of the Partnership in accordance with their Partnership Interests.
The Partnership will annually, as soon as practicable after the close of the
fiscal year of the Partnership, distribute all funds received by it to the
Partners in accordance with their Partnership Interests; provided, that the
Partnership may retain funds within the Partnership to the extent the Managing
Partner determines to be reasonable for the conduct of its business and
fulfillment of its purposes. Notwithstanding the foregoing, the Managing Partner
may, in his discretion, cause the Partnership to make more frequent distribution
to the Partners in accordance with their Partnership Interests.
7. Allocations.
(a) All income, gains, losses, and deductions will be allocated to the
Partners in accordance with their Partnership Interests.
(b) If any interest in the Partnership is sold, assigned or transferred
during any fiscal year, all items of income, gain, loss, deduction and credit
attributable to the transferred interest for such period will be divided and
allocated between the transferor and the transferee by taking into account their
varying interests during the period in accordance with section 706(d) of the
Internal Revenue Code, using any conventions permitted by law and selected by
the Partners.
8. Management.
(a) The holder or holders of Partnership Interests aggregating more
than 50% may at any time vote to elect new partners or dismiss existing partners
from the Partnership.
(b) The holder or holders of Partnership Interests aggregating more
than 50% will designate a Managing Partner who will serve until his successor is
designated. TGE shall serve as Managing Partner until his successor is duly
designated or until his earlier
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death, resignation or removal. The Managing Partner will have the exclusive
authority to operate and manage the day-to-day business and affairs of the
Partnership. Persons dealing with the Partnership are entitled to rely
conclusively on the power and authority of the Managing Partner as set forth in
this Agreement. In no event will any person dealing with the Managing Partner
with respect to any business, property or asset of the Partnership be obligated
to ascertain that the terms of this Agreement have been complied with, or be
obligated to inquire into the necessity or expediency of any act of the Managing
Partner; and every contract, agreement, deed, mortgage, security agreement,
promissory note, or other instrument or document executed by the Managing
Partner with respect to any business, property or asset of the Partnership will
be conclusive evidence in favor of any and every person relying thereon or
claiming thereunder that (i) at the time of the execution and delivery thereof,
this Agreement was in full force and effect; (ii) such instrument or document
was duly executed in accordance with the terms and provisions of this Agreement
and is binding upon the Partnership and all the Partners; and (iii) the Managing
Partner was duly authorized and empowered to execute and deliver any and every
such instrument or document for and on behalf of the Partnership.
(c) The Managing Partner is hereby granted the right, power and
authority to do in the name of and on behalf of the Partnership all things that,
in the Managing Partner's sole judgment, are necessary, proper or desirable to
carry out its duties and responsibilities including, without limitation, the
right, power and authority to:
(i) dispose of Partnership assets in the exercise of any rights
or powers possessed by the Managing Partners under this
Agreement;
(ii) enter into agreements containing such terms, provisions and
conditions as the Managing Partner, in his discretion,
approves;
(iii) purchase from or through other contracts of liability,
casualty, and other insurance that the Managing Partner
deems advisable for the protection of the Partnership and
the Partners with respect to the Partnership's operations
or for any purpose convenient or beneficial to the
Partnership;
(iv) incur indebtedness, grant mortgage liens on Partnership
assets, pledge, and otherwise encumber Partnership assets,
and subordinate the interest of the Partnership in any
asset to any indebtedness or interest, whether newly
created or preexisting;
(v) sell, exchange, lease, or otherwise dispose of, on such
terms and conditions as the Managing Partner deems
advisable, appropriate or convenient, any of the assets of
the Partnership;
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(vi) invest in short-term debt obligations such funds as are
temporarily not required for the purpose of the
Partnership's operations or distributions pursuant to
Section 6.
(vii) delegate all or any of the Managing Partner's duties under
this Agreement and, in furtherance of any such delegation,
appoint, employ, or contract with any person for the
transaction of the business of the Partnership, which
persons may, under the supervision of the Managing Partner,
act as consultants, accountants, attorneys, brokers, escrow
agents, or any other capacity deemed by the Managing
Partner necessary or desirable and pay appropriate fees to
any such persons.
(viii) prepare, or have prepared, and file all tax returns for the
Partnership and make all tax elections for the Partnership,
including any special basis adjustments pursuant to section
754 of the Internal Revenue Code, provided, however, that
the Partner benefiting from such election will reimburse
the Partnership for any additional costs incurred by the
Partnership in making the election for and on behalf of the
Partnership;
(ix) institute, prosecute, defend, and settle any legal,
arbitration or administrative actions or proceedings on
behalf of or against the Partnership; and
(x) employ, terminate the employment of, supervise and
compensate such persons or entities for and in connection
with the business of the Partnership and the acquisition,
development, improvement, operation, maintenance,
management, leasing, financing, refinancing, sale, exchange
or other disposition of any assets of the Partnership or
any interest in any of such assets as the Managing Partner,
in his sole discretion, deems necessary or desirable.
(d) Notwithstanding the powers of the Managing Partner set forth in
this Section 8, without the consent of all the Partners, the Managing Partner
will not have the right or power to:
(i) do any act in contravention of this Agreement as amended
from time to time;
(ii) do any act which would make it impossible to carry on the
ordinary business of the Partnership;
(iii) confess a judgment against the Partnership;
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(iv) possess Partnership property, or assign any Partnership
property for other than a Partnership purpose;
(v) admit a person as a Partner other than as provided in this
Agreement; or
(vi) amend this Agreement.
(e) The Managing Partner is hereby designated as the "Tax Matters
Partner" under Section 6331(a)(7) of the Internal Revenue Code, to manage
administrative tax proceedings conducted at the Partnership level by the
Internal Revenue Service with respect to Partnership matters.
(9) Dissolution. The Partnership will be dissolved upon the occurrence of
any of the following events unless the Partners agree in writing to the
contrary: (a) the death, bankruptcy, resignation or dismissal of any Partners
(the "Departing Partner"); (b) the receipt by the Partnership of the final
payment due on any sale of all or substantially all of the Partnership's assets;
or (c) the agreement of each of the Partners to dissolve the Partnership. In the
event of a dissolution of the Partnership pursuant to clause (a) above, each
Partner (or its legal representative or successor) will submit the cash purchase
price at which it would be willing to purchase an undivided 100% interest in the
Partnership in accordance with conditions set by the Managing Partner. Whichever
Partner submits the higher price will purchase the interest of the Departing
Partner for an amount equal to the product of such price multiplied by the
Partnership Interest of such other Partner.
10. Transfer.
(a) No Partner will be permitted to assign, transfer, sell, pledge,
hypothecate, mortgage, encumber, give, abandon, or otherwise dispose of all or
any part of its interest in the Partnership (by operation of law or otherwise)
without the prior consent of the voting majority of the other Partners.
(b) No transferee or assignee of any interest in the Partnership
(whether by death or divorce of any Partner, voluntary or involuntary transfer,
or otherwise) will, without the consent of a voting majority of the Partnership,
(i) be entitled to influence or interfere in the management or administration of
the business or affairs of the Partnership; (ii) have any rights or privileges
with respect to the Partnership other than those of any "assignee" under the
Texas Uniform Partnership Act; or (iii) be considered a partner in this
Partnership.
11. Binding Effect. Except as otherwise provided in this Agreement, this
Agreement will be binding upon and inure to the benefit of the parties to this
Agreement and their respective heirs, successors and assigns.
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12. Additional Documents. Each Partner hereby agrees to execute such
additional documents as may be reasonably necessary to carry out the purposes of
the Partnership.
IN WITNESS WHEREOF, the Partners have executed this Agreement as of the day
and year first above written.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ASSET MANAGEMENT, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Manager
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