Exhibit 99.9
AGREEMENT OF LIMITED PARTNERSHIP
of
▇▇▇▇▇▇ Limited Partnership,
A Delaware Limited Partnership
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS....................................................... 1
Section 1.1 Certain Terms............................................... 1
Section 1.2 Short Fiscal Years and Other Accounting
Periods..................................................... 4
ARTICLE II
NAME, OFFICE, BUSINESS.................................................... 4
Section 2.1 Name........................................................ 4
Section 2.2 Office in the State of Delaware; Agent
for Service................................................. 4
Section 2.3 Purpose of the Partnership.................................. 4
Section 2.4 Location of Principal Place of
Business.................................................... 5
Section 2.5 Names and Business Address of General
Partners.................................................... 5
Section 2.6 Term........................................................ 5
ARTICLE III
CAPITAL CONTRIBUTIONS..................................................... 5
Section 3.1 Effective Date Capital Accounts............................. 5
Section 3.2 Capital Account............................................. 6
Section 3.3 Additional Capital Contributions............................ 6
Section 3.4 Interest on Capital Contributions........................... 6
Section 3.5 Distributions and Return of Capital
Contributions............................................... 6
Section 3.6 Form of Capital Contributions............................... 6
Section 3.7 Future Required Capital Contributions of
General Partners............................................ 6
ARTICLE IV
ALLOCATION OF PROFITS AND LOSSES.......................................... 7
Section 4.1 Allocations of Profits and Losses........................... 7
Section 4.2 Taxable Income or Loss...................................... 7
Section 4.3 Code ss. 704(c)............................................. 7
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Page
ARTICLE V
DISTRIBUTIONS............................................................. 7
Section 5.1 Distributions of Available Cash............................. 7
Section 5.2 Other Distributions......................................... 7
Section 5.3 Distributions in Cash or Property........................... 7
ARTICLE VI
POWERS, RIGHTS AND DUTIES OF THE GENERAL PARTNERS......................... 8
Section 6.1 Authority................................................... 8
Section 6.2 Liability................................................... 8
Section 6.3 Indemnification............................................. 8
Section 6.4 Survival.................................................... 9
ARTICLE VII
TRANSFERS OF INTERESTS BY PARTNERS........................................ 9
Section 7.1 Transfer of Partner's Interest.............................. 9
Section 7.2 Transferees Bound by Agreement.............................. 13
ARTICLE VIII
DISSOLUTION OF THE PARTNERSHIP............................................ 13
ARTICLE IX
WINDING UP, TERMINATION AND LIQUIDATING DISTRIBUTIONS..................... 13
Section 9.1 Winding Up.................................................. 13
Section 9.2 Distribution of Partnership
Property.................................................... 14
Section 9.3 Termination................................................. 14
ARTICLE X
BOOKS AND RECORDS, REPORTS, FISCAL YEAR................................... 14
Section 10.1 Books and Records........................................... 14
Section 10.2 Reports..................................................... 14
Section 10.3 Fiscal Year................................................. 14
ARTICLE XI
AMENDMENT OF PARTNERSHIP AGREEMENT........................................ 14
Approval of Amendments.................................................... 14
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Page
ARTICLE XII
MISCELLANEOUS............................................................. 15
Section 12.1 Power of Attorney........................................... 15
Section 12.2 Notices..................................................... 16
Section 12.3 Entire Agreement............................................ 16
Section 12.4 Governing Law............................................... 16
Section 12.5 Voting, Consents and Approvals.............................. 17
Section 12.6 Effect...................................................... 17
Section 12.7 Pronouns and Number......................................... 17
Section 12.8 Captions.................................................... 17
Section 12.9 Partial Enforceability...................................... 17
Section 12.10 Counterparts................................................ 18
Section 12.11 Third Party Beneficiaries................................... 18
Schedule A................................................................... 21
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AGREEMENT OF LIMITED PARTNERSHIP
OF ▇▇▇▇▇▇ LIMITED PARTNERSHIP
This Agreement of Limited Partnership of the ▇▇▇▇▇▇ Limited
Partnership, a Delaware limited Partnership (the "PARTNERSHIP"), effective as of
August 28, 1998 (the "EFFECTIVE DATE") by and among the General Partners (as
defined herein) and the Limited Partners (as defined herein).
R E C I T A L S
In consideration of the premises and covenants contained herein, the
parties agree as of the Effective Date as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 CERTAIN TERMS. The following definitions apply to this
Agreement:
"ACCOUNTING PERIOD" means, as the context may require, the period
beginning as of the Effective Date or on the day following the last day of the
immediately preceding Accounting Period, and ending on the next succeeding of
the following:
(a) the last day of each Fiscal Year of the Partnership;
(b) the day prior to the date of any withdrawal of any Partner or any
distribution to any Partner;
(c) the day prior to the day as of which a Person is admitted as a
Partner or any Partner makes a Capital Contribution; and
(d) any day specified as the last day of an Accounting Period by the
Managing General Partner.
"AGREEMENT" means this Agreement of Limited Partnership (including the
Schedule hereto), as amended, modified or supplemented from time to time.
"CAPITAL ACCOUNT" means, with respect to each Partner, the account so
designated and established on the books and records of the Partnership for each
Partner which shall be determined in accordance with Treasury Regulations ss.
1.704-1(b)(2)(iv).
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"CAPITAL CONTRIBUTION" means the total amount of cash and the
initial fair market value of any property (other than cash) less any liabilities
encumbering such contributed property that the Partnership is considered to
assume or take subject to under Code ss. 752, contributed to the capital of the
Partnership by any Partner.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time (or any succeeding law). References to sections of the Code shall include
amended or successor provisions thereto.
"FIRST REFUSAL NOTICE" has the meaning specified in Section 7.1.
"FIRST REFUSAL PARTNER" has the meaning specified in Section 7.1.
"FISCAL YEAR" has the meaning specified in Section 10.3.
"GENERAL PARTNERS" means the general partners of the Partnership as of
the Effective Date and/or any other Person admitted to the Partnership as a
general partner in accordance with the Partnership Act. As of the Effective
Date, the General Partners are ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"INTEREST" means the individual interest of each Partner in the
Partnership at any particular time including, without limitation, any right to
participate in the Partnership or to receive distributions. The interest of the
General Partners shall constitute General Partnership Interests and the interest
of the Limited Partners shall constitute Limited Partnership Interests.
"LIMITED PARTNERS" means the limited partners of the Partnership as of
the Effective Date and any other Person admitted to the Partnership as a limited
partner in accordance with the Partnership Act and any Substituted Limited
Partners. As of the Effective Date, the only Limited Partner is ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
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"MANAGING GENERAL PARTNER" means, as of the Effective Date, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇. In the event of the withdrawal of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as a General
Partner, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall become the Managing General Partner provided he
is a General Partner at such time.
"PARTNERS" means the General Partners, Limited Partners and Substituted
Limited Partners, collectively, where no distinction is required by the context
in which the term is used.
"PARTNERSHIP ACT" means the Delaware Revised Uniform Limited
Partnership Act, as amended from time to time (or any succeeding law).
"PARTNERSHIP PROPERTY" means any real or personal property, whether
tangible or intangible, owned by the Partnership and any goodwill.
"PERSON" means any individual, partnership, corporation, trust or other
entity.
"PROFITS" and "LOSSES" mean, for each Accounting Period, an amount
equal to the Partnership's taxable income or loss, respectively, for such
Accounting Period determined in accordance with Code ss. 703(a) (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code ss. 703(a)(1) shall be included in taxable income or
loss), with the following adjustments:
(a) Any income of the Partnership that is exempt from Federal income
tax and not otherwise taken into account in computing Profits and Losses
pursuant to this definition shall increase or decrease such taxable income or
loss;
(b) Any expenditure of the Partnership described in Code ss.
705(a)(2)(B) or treated as Code ss. 705(a)(2)(B) expenditures pursuant to
Treasury Regulations ss. 1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing Profits and Losses pursuant to this definition, shall
reduce such taxable income or increase such taxable loss, as the case may be.
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"REGULATORY RULE" means each statute, regulation, rule and other
requirement applicable to the Partnership.
"SELLING PARTNER" has the meaning specified in Section 7.1.
"SUBSTITUTED LIMITED PARTNER" means any Person admitted to the
Partnership as a Substituted Limited Partner pursuant to the provisions of
Section 7.1.
"THIRD PARTY OFFER" has the meaning specified in Section 7.1.
"THIRD PARTY OFFER NOTICE" has the meaning specified in Section 7.1.
"TREASURY REGULATIONS" means the Treasury Regulations promulgated under
the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding Treasury Regulations).
Section 1.2 SHORT FISCAL YEARS AND OTHER ACCOUNTING PERIODS. The
definitions of the terms set forth in Section 1.1 shall be modified, where
appropriate, to reflect short Fiscal Years and other Accounting Periods.
ARTICLE II
NAME, OFFICE, BUSINESS
Section 2.1 NAME. The name of the Partnership is "▇▇▇▇▇▇ Limited
Partnership", or such other name or variations thereof as may, from time to
time, be selected by the Managing General Partner.
Section 2.2 OFFICE IN THE STATE OF DELAWARE; AGENT FOR SERVICE.
The address of the Partnership's registered office in the State of Delaware is
c/o The Corporation Service Company, Corporation Trust Center, 1013 Centre Road,
Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name of the Partnership's
registered agent for service of process in the State of Delaware at such address
is The Corporation Service Company or such other agent as may be designated from
time to time by the Managing General Partner.
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Section 2.3 PURPOSE OF THE PARTNERSHIP. The purpose of the
Partnership is to manage, invest and reinvest certain Partnership Property and
to engage in any activities in connection therewith, including without
limitation:
(1) to purchase, sell, invest and deal in securities of any kind;
(2) to engage in the real estate business, including, without
limitation, the right to acquire, own, hold, develop, and operate
real properties, in whatever capacity;
(3) to acquire interests of any type in corporations, limited and
general partnerships, limited liability companies and joint
ventures;
(4) to engage in any trades and businesses in any capacity and form
any types of business enterprises;
(5) to operate any business enterprise;
(6) to borrow and lend money;
(7) to make, enter into, deliver and perform all contracts, agreements
and undertakings; and
(8) to engage in any and all activities incident to the foregoing.
Section 2.4 LOCATION OF PRINCIPAL PLACE OF BUSINESS. The location of
the principal place of business of the Partnership is ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other location as may from time to time be
determined by the Managing General Partner. The Managing General Partner may
change the location of the principal place of business of the Partnership by
notice to all Partners. The Partnership may maintain such other offices as the
Managing General Partner may deem advisable at any other place or places within
or outside of the United States.
Section 2.5 NAMES AND BUSINESS ADDRESS OF GENERAL PARTNERS. The
names and business addresses of each of the General Partners are: (a) ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other place as may from time to time
be specified by such General Partner by notice to the Partnership.
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Section 2.6 TERM. The term of the Partnership (the "Term")
commenced with the filing of the initial certificate of limited partnership in
the Office of the Secretary of State of the State of Delaware and shall continue
until dissolution pursuant to Article VIII of this Agreement.
ARTICLE III
CAPITAL CONTRIBUTIONS
Section 3.1 EFFECTIVE DATE CAPITAL ACCOUNTS. On the date hereof, the
Managing General Partner, in his capacity as such, the other General Partner and
the initial Limited Partner, in his capacity as such, are making the
contributions to the Partnership specified on Schedule A hereto. The Capital
Accounts of the Partners as of the Effective Date are set forth on Schedule A
hereto.
Section 3.2 CAPITAL ACCOUNT. The Managing General Partner shall
maintain a Capital Account for each Partner.
Section 3.3 ADDITIONAL CAPITAL CONTRIBUTIONS.
(a) No Partner shall have any right to make additional Capital
Contributions, but any Partner may do so with the approval of the
Managing General Partner.
(b) Except as otherwise provided in this Agreement or required by law,
no Partner shall be obligated to make any additional Capital Contributions to
the Partnership.
Section 3.4 INTEREST ON CAPITAL CONTRIBUTIONS. No Partner shall be
entitled to interest on or with respect to any Capital Contribution or with
respect to any amounts to be paid to such Partner pursuant to this Agreement.
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Section 3.5 DISTRIBUTIONS AND RETURN OF CAPITAL CONTRIBUTIONS. Except
as provided in this Agreement, no Partner shall be entitled to a return of any
part of its Capital Contributions or to receive any distributions from the
Partnership.
Section 3.6 FORM OF CAPITAL CONTRIBUTIONS. Capital Contributions to the
Partnership may be made in cash or in kind. If contributions to the capital of
the Partnership are made in property other than cash, they shall be valued at
their fair market value on the date of contribution.
Section 3.7 FUTURE REQUIRED CAPITAL CONTRIBUTIONS OF GENERAL PARTNERS.
On each date after the Effective Date on which a Capital Contribution is made by
any Limited Partner, the General Partners will make, if necessary, Capital
Contributions such that the aggregate Capital Account balances of the General
Partners will never be less than one ninety-ninth of the aggregate Capital
Account balances of all of the Limited Partners; provided that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
shall not be required to make any such contribution without his prior written
consent.
ARTICLE IV
ALLOCATION OF PROFITS AND LOSSES
Section 4.1 ALLOCATIONS OF PROFITS AND LOSSES. Profits and Losses shall
be allocated for each Accounting Period pro rata among the Partners in
accordance with the positive balance of their Capital Accounts.
Section 4.2 TAXABLE INCOME OR LOSS. Except as provided in Section
4.3 below, the net profits and net losses of the Partnership (including, for
this purpose, separately stated items pursuant to Code Section 703(a)(1)), as
determined for federal income tax purposes, shall be allocated in the same
manner as Profits and Losses are allocated under Section 4.1.
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Section 4.3 CODE SS. 704(C). Partnership income, gain, loss and
deduction, as determined for federal income tax purposes, shall be allocated
among the Partners, in accordance with the principles of Code ss. 704(c), the
Treasury Regulations thereunder, and Treasury Regulations ss. 1.704-1(b)(4)(i),
to account for any variation between the adjusted tax basis and book value of
Partnership Property.
ARTICLE V
DISTRIBUTIONS
Section 5.1 DISTRIBUTIONS OF AVAILABLE CASH. The Partnership shall
distribute to each Partner thirty-five percent (35%) of the taxable income
allocated to such Partner pursuant to Section 4.2 not later than 100 days after
the last day of each Fiscal Year.
Section 5.2 OTHER DISTRIBUTIONS. Any Partnership distributions in
excess of the distributions made pursuant to Section 5.1 shall be made: (a) by
the Managing General Partner in his sole discretion and (b) pro rata among the
Partners in accordance with the positive balances of their Capital Accounts.
Section 5.3 DISTRIBUTIONS IN CASH OR PROPERTY. All distributions
pursuant to this Article V and pursuant to Section 9.2 shall be made, unless
otherwise agreed to by all of the Partners, in cash. If distributions from the
Partnership are made in property other than cash, they shall be valued at their
fair market value on the date of distribution. If the Partners shall not agree
on the value of the property, the fair market value shall be determined by a
qualified appraiser selected by the Managing General Partner.
ARTICLE VI
POWERS, RIGHTS AND DUTIES OF THE GENERAL PARTNERS
Section 6.1 AUTHORITY. Except as otherwise specifically provided
herein, the Managing General Partner shall have exclusive and complete authority
and discretion to manage the operations and affairs of the Partnership and to
make all decisions regarding the business of the Partnership and shall have all
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rights and powers of a General Partner under the Partnership Act and the other
General Partner shall have no such authority or discretion and agrees that he
shall not act on behalf of the Partnership until such time, if any, as he
becomes Managing General Partner. Any action taken by the Managing General
Partner shall constitute the act of and serve to bind the Partnership. Persons
dealing with the Partnership are entitled to rely conclusively on the power and
authority of the Managing General Partner.
Section 6.2 LIABILITY. Except as otherwise provided by law, the
General Partners shall not be personally liable for the return of all or any
portion of the Capital Contributions and shall not be required to pay to the
Partnership or any Partner any deficit in any Partner's Capital Account. Neither
the General Partners nor any former, present or future partner, member, officer,
director, stockholder, employee, agent or affiliate of the General Partners
shall be liable, responsible or accountable to the Partnership or any Partner
for: (a) any act performed or omitted by any of them, including, without
limitation, those acts performed or omitted on advice of legal counsel,
accountants, brokers or consultants of the Partnership, or for any costs,
damages or liabilities arising therefrom, or by law, unless that act or omission
was performed or omitted fraudulently or in bad faith; or (b) any loss due to
the negligence, dishonesty or bad faith of any employee, officer, broker,
consultant or other agent of the Partnership selected, engaged and retained in
good faith by a General Partner.
Section 6.3 INDEMNIFICATION. The Partnership agrees to:
(a) indemnify and hold harmless the General Partners and the respective
personal representatives, heirs, successors in interest and assignees of the
General Partners (each, an "INDEMNIFIED PARTY"), from and against any and all
damages incurred or suffered by any Indemnified Party arising out of or in
connection with the Partnership or its business or affairs; PROVIDED, HOWEVER,
that the Partnership shall not indemnify or hold harmless any Indemnified Party
with respect to any act or omission which was performed or omitted fraudulently
or in bad faith by such Indemnified Party; and
(b) advance to any Indemnified Party expenses for which the Partnership
is required to indemnify the Indemnified Party pursuant to this Section 6.3
subject to the undertaking of the Indemnified Party to repay such advances if it
is ultimately determined that such Indemnified Party is not entitled to be
indemnified.
Section 6.4 SURVIVAL. The exculpation provided in Section 6.2 and
the indemnification provided in Section 6.3 shall survive any termination of
this Agreement.
ARTICLE VII
TRANSFERS OF INTERESTS BY PARTNERS
Section 7.1 TRANSFER OF PARTNER'S INTEREST.
(a) No Partner may sell, assign, pledge, gift or otherwise encumber or
dispose of all or any portion of that Partner's Interest (including any
beneficial interest therein) except as provided in Section 7.1(b) or Section
7.1(c).
(b) A Partner may sell, assign, pledge, gift or otherwise encumber or
dispose of all or any portion of that Partner's Interest provided the following
conditions are met:
(i) an instrument of transfer in form and substance satisfactory
to the Managing General Partner shall be executed by both the transferor
and transferee of the Interest or portion thereof shall be delivered to the
Partnership, and the transferee shall, if so requested by the Managing
General Partner, assume the obligations, if any, of the transferor to the
Partnership allocable to the Interests or portion thereof transferred;
(ii) the transferor and the transferee shall execute such other
instruments as the Managing General Partner may require; and
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(iii) such transfer is not to a minor or to a Person under a
disability, except that this limitation shall not apply to a transfer in
trust for the benefit of a minor or a person under a disability or
custodianship under the applicable Uniform Transfer to Minors Act or
similar legislation of any state or jurisdiction.
(c) A Partner may sell his entire Interest ("SELLING PARTNER") provided
the following conditions are met:
(i) Having received a bona fide offer therefor (a "THIRD
PARTY OFFER"), the Selling Partner shall first give written notice to
the other Partners, which notice shall specify the identity of the
proposed purchaser and annex thereto an executed copy of the Third Party
Offer ("THIRD PARTY OFFER NOTICE"). The other Partners shall then have
the right to acquire, in accordance with the provisions of this Section
7.1(c), the entire Interest of such Selling Partner upon the same terms
and conditions as are contained in the Third Party Offer. Such right can
be exercised by any Partner who desires to purchase the Selling
Partner's Interest (a "FIRST REFUSAL PARTNER") by giving notice (a
"FIRST REFUSAL NOTICE") to the Selling Partner and the Managing General
Partner within fifteen (15) days from the date of the Third Party Offer
Notice of the percentage of the Selling Partner's Interest which such
First Refusal Partner desires to purchase. If any Partner fails to give
notice within said time, such Partner's purchase option shall lapse, his
First Refusal Notice shall be null and void and for purposes of such
sale he shall not be a First Refusal Partner.
(ii) If the First Refusal Notices which are timely collectively
request purchases of exactly one hundred percent (100%) of the Selling
Partner's Interest, then the Managing General Partner shall, within ten
(10) days following the date of expiration of the time for sending First
Refusal Notices, send a closing notice to the Selling Partner and the First
Refusal Partners which shall specify: (1) the percentage of the Selling
Partner's Interest to be purchased by each First Refusal Partner, as set
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forth in the First Refusal Notices and (2) the date of the closing for the
purchase of the Selling Partner's Interest, which date shall be determined
by the Managing General Partner in accordance with Section 7.1(c)(iv).
(iii) If the First Refusal Notices which are timely collectively
request purchases of more than one hundred percent (100%) of the Selling
Partner's Interest, then the percentage of the Selling Partner's Interest
to be purchased by each of the First Refusal Partners shall be reduced from
the percentage set forth in his First Refusal Notice on a pro rata basis in
accordance with the percentage of the Selling Partner's Interest specified
in the respective First Refusal Notices of the First Refusal Partners such
that the total percentage of the Selling Partner's Interest that all First
Refusal Partners are purchasing is equal to one hundred percent (100%). The
Managing General Partner shall determine the percentage of the Selling
Partner's Interest which each First Refusal Partner shall purchase in
accordance with the preceding sentence, which determination shall be deemed
correct absent manifest error. The Managing General Partner shall, within
ten (10) days following the date of expiration of the time for sending
First Refusal Notices, send a closing notice to the Selling Partner and the
First Refusal Partners which shall specify: (1) the percentage of the
Selling Partner's Interest to be purchased by each First Refusal Partner,
as determined in accordance with this Section 7.1(c)(iii) and (2) the date
and place of the closing for the purchase of the Selling Partner's
Interest, as determined in accordance with Section 7.1(c)(iv).
(iv) Closing for the transfer of the Selling Partner's Interest
shall take place: (1) at the principal place of business of the Partnership
or such other place as the Managing General Partner shall select and (2) on
such date as the Managing General Partner shall select and specify in the
closing notice sent pursuant to Section 7.1(c)(ii) or Section 7.1(c)(iii),
as appropriate, which date shall be within 20 days after such closing
notice is given.
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(v) If the First Refusal Notices which are timely collectively
request purchases of less than one hundred percent (100%) of the Selling
Partner's Interest, then the Managing General Partner shall notify the
Selling Partner and the First Refusal Partners thereof and the Selling
Partner shall be free for a period of 60 days from the date of such notice
from the Managing General Partner to sell the Selling Partner's Interest to
the party which made the Third Party Offer provided such sale is effected
strictly in accordance with the terms and conditions as set forth in the
Third Party Offer; and, further provided, that the transferee is sui juris
and mentally competent and that such sale is not prohibited by law.
(d) Any purported transfer of an Interest which is not made in
compliance with this Agreement shall be null and void and of no force or effect
whatsoever.
(e) No transferee of an Interest pursuant to Section 7.1(b) or Section
7.1(c) or otherwise shall become a Substituted Limited Partner unless: (1) the
transfer is made in compliance with either Section 7.1(b) or Section 7.1(c); (2)
the transferee accepts, adopts and approves all of the terms and provisions of
this Agreement as evidenced by its execution of a counterpart signature page to
this Agreement; (3) in the case of a transfer pursuant to Section 7.1(b) only,
all of the Partners give their prior written consent, which consent may be
withheld by any Partner in his sole discretion; and (4) the transferring Partner
and the transferee execute and acknowledge such other instruments as the
Managing General Partner may deem reasonably necessary or appropriate.
(f) Anything herein to the contrary notwithstanding, until such time as
the transferee of an Interest has been admitted to the Partnership as a Substi
tuted Limited Partner or the Managing General Partner has determined that the
requirements of Section 7.1(b) or Section 7.1(c) for transfer of an Interest
have been satisfied, both the Partnership and the General Partners shall be
entitled to treat the transferor of such Interest as the absolute owner thereof
in all respects.
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(g) In the event of the transfer of a Partner's Interest at any time
other than the end of the Partnership's Fiscal Year, the distributive shares of
the various items of Partnership income, gain, loss, deduction and credit as
computed for tax purposes shall be allocated between the transferor and the
transferee pursuant to any permissible method agreed upon by the transferor and
transferee.
Section 7.2 TRANSFEREES BOUND BY AGREEMENT. Any successor or transferee
of a Partner and any Substituted Limited Partner shall be subject to and bound
by all of the provisions of this Agreement as if originally a party to this
Agreement.
ARTICLE VIII
DISSOLUTION OF THE PARTNERSHIP
The Partnership shall be dissolved upon the earliest of:
(a) September 1, 2048; or
(b) Any act or event specified in the Partnership Act ss. 17-801 or any
successor provision thereto; provided, however, that the business of the
Partnership may be carried on by one General Partner.
ARTICLE IX
WINDING UP, TERMINATION AND LIQUIDATING DISTRIBUTIONS
Section 9.1 WINDING UP.
(a) In the event of the dissolution of the Partnership, the Managing
General Partner shall wind up the affairs of the Partnership. The Managing
General Partner may liquidate all or any part of the Partnership Property. The
Managing General Partner shall, in his sole discretion, determine the time,
manner and terms of any sale or sales of the Partnership Property pursuant to
the liquidation.
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(b) The Partners shall continue to share Profits and Losses during the
period of dissolution of the Partnership in accordance with Article IV.
(c) In the event of the dissolution of the Partnership, the Managing
General Partner shall have the right to dispose of the goodwill and all of the
Partnership's books and papers in any manner as he may deem advisable.
Section 9.2 DISTRIBUTION OF PARTNERSHIP PROPERTY. Subject to the right
of the Managing General Partner to set up cash reserves as he may deem necessary
or appropriate, after payment or adequate provision for the payment of all debts
and obligations of the Partnership, the Partnership Property (and/or the
proceeds of the liquidation of the Partnership Property) shall be distributed
pro rata to the Partners in accordance with their respective Capital Accounts.
Section 9.3 TERMINATION. The Partnership shall terminate when all
Partnership Property shall have been disposed of and distributions made as
provided in Section 9.2. The Managing General Partner shall then execute and
cause to be filed all documents and instruments required to effect the
termination.
ARTICLE X
BOOKS AND RECORDS, REPORTS, FISCAL YEAR
Section 10.1 BOOKS AND RECORDS. True and complete books of
account and records are to be kept by the Partnership and shall be available
during reasonable business hours for inspection by each Partner.
Section 10.2 REPORTS. As soon as practicable after the end of
each Fiscal Year, the Managing General Partner shall send to each Person who was
a Partner at any time during such Fiscal Year, an annual statement indicating
such Partner's share of the Partnership's taxable income or loss, capital gain
or loss, and other items relevant for federal income tax purposes.
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Section 10.3 FISCAL YEAR. The fiscal year of the Partnership (the
"FISCAL YEAR") shall be from January 1 through December 31 of each year or
portion thereof during which the Partnership is in existence.
ARTICLE XI
AMENDMENT OF PARTNERSHIP AGREEMENT
APPROVAL OF AMENDMENTS. Amendments to this Agreement may be made by the
Managing General Partner without the consent of any other Partner through use of
the power of attorney described in Section 12.1 if those amendments are: (i) of
a non-material nature, as reasonably determined by the Managing General Partner;
(ii) for the purpose of creating a new class or classes of Limited Partnership
Interests, admitting additional Limited Partners or reflecting the withdrawal of
Limited Partners; (iii) necessary to maintain the Partnership's status as a
partnership according to ss. 7701(a)(2) of the Code; (iv) necessary to preserve
the validity of any and all allocations of Partnership income, gain, loss or
deduction pursuant to ss. 704(b) of the Code; or (v) contemplated by this
Agreement. Amendments to this Agreement other than those described in the first
sentence of this Article XI must be made in accordance with the Partnership Act.
Any supplemental or amendatory agreement shall be adhered to and have the same
effect from and after its effective date as if the same had originally been
embodied in, and formed a part of, this Agreement. The Managing General Partner
shall give written notice to all of the Partners promptly after any amendment
has become effective. Any amendment to this Agreement must be in writing.
ARTICLE XII
MISCELLANEOUS
Section 12.1 POWER OF ATTORNEY. Each Partner hereby constitutes and
appoints the Managing General Partner as its true and lawful representative and
attorney-in-fact, in its name, place and stead and with full power of
substitution to make, execute, publish, acknowledge, deliver, record and file
16
and swear to the execution, delivery, acknowledgment, filing and/or recording
of: (a) the Certificate of Limited Partnership of the Partnership, any
amendment thereof required because of an amendment to this Agreement or in
order to effectuate any change in the membership of the Partnership and (b) all
such other agreements, applications, instruments, documents, certifications,
certificates and reports which may from time to time be required by the laws of
the United States of America, the State of Delaware or any other jurisdiction,
or any political sub division or agency thereof, or any Regulatory Rule, all of
the foregoing to effectuate, implement and continue the valid and subsisting
existence of the Partnership. The power of attorney granted hereby is coupled
with an interest and is irrevocable and shall: (i) continue in full force and
effect notwithstanding the subsequent death, incapacity, dissolution,
termination or bankruptcy of the Partner granting the same or the transfer of
all or any portion of such Partner's Interest and (ii) extend to that Partner's
successors, assigns and legal representatives. Each Partner agrees to be bound
by any representation made by the attorney-in-fact acting in good faith pursuant
to and in accordance with the power of attorney, and hereby waives any and all
defenses which may be available to contest, negate or disaffirm the action of
the attorney-in-fact taken in good faith pursuant to, and in accordance with,
the power of attorney.
Section 12.2 NOTICES. All notices and demands required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given: (a) (i) upon receipt if delivered personally (unless subject to
clause (a)(ii) of this Section 12.2) or if mailed by registered or certified
mail; (ii) on the date after dispatch if sent by overnight courier or (iii) upon
dispatch if transmitted by telecopy or other means of facsimile which provides
immediate delivery to compatible equipment in the possession of the recipient,
if receipt has been confirmed and (b) in any case, if to the Partnership or the
Managing General Partner, to:
▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation Number: (▇▇▇) ▇▇▇-▇▇▇▇
and if to any other Partner, to the address or telecopy number of such Partner
as shown from time to time on the records of the Partnership. Any Partner may
specify a different address or telecopy number by notifying the Managing
General Partner thereof. The Managing General Partner may specify a different
address or telecopy number by notifying all Partners thereof.
Section 12.3 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof, as
of the Effective Date supersedes any prior agreement or understandings among
them, and may not be modified or amended in any manner other than as set forth
herein.
Section 12.4 GOVERNING LAW.
(a) This agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the law of the state of Delaware
without giving effect to the conflicts of law principles thereof.
(b) All of the provisions of this Agreement shall be subject to all
applicable Regulatory Rules.
(c) Notwithstanding anything herein to the contrary, to the extent that
this Agreement is invalid, void, illegal or otherwise inconsistent with Delaware
law or any Regulatory Rule, such Regulatory Rule and/or Delaware law shall
override this Agreement to the extent necessary to conform this Agreement to
such Regulatory Rule or Delaware law.
Section 12.5 VOTING, CONSENTS AND APPROVALS. Any action requiring
the consent, approval or affirmative vote of Partners under this Agreement may
be taken by vote at a meeting or, in lieu thereof, by written consent of
Partners. The granting or withholding of consents or approvals by any party
hereto shall be in the sole discretion of such party, unless otherwise expressly
provided in this Agreement.
18
Section 12.6 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
permitted assigns.
Section 12.7 PRONOUNS AND NUMBER. Wherever it appears appropriate from
the context, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in either the masculine,
feminine or neuter shall include the masculine, feminine and neuter.
Section 12.8 CAPTIONS. Captions contained 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.
Section 12.9 PARTIAL ENFORCEABILITY. If any provision of this
Agreement, or the application of that provision to any Person or circumstance,
shall be held invalid, the remainder of this Agreement, or the application of
that provision to Persons or circumstances other than those to which it is held
invalid, shall not be affected thereby, except to the extent necessary to carry
out the purposes of this Agreement.
Section 12.10 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.
Section 12.11 THIRD PARTY BENEFICIARIES. The parties hereto
intend that this Agreement shall not benefit or create any right or cause of
action in or on behalf of any Person other than the parties hereto.
19
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
GENERAL PARTNERS:
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
LIMITED PARTNERS:
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
20
INDIVIDUAL OR TRUST SIGNATORY
STATE OF______________________, COUNTY OF_____________________ ss.:
On _________________, 199__ before me_________________________
personally came ___________________________________ to me known, and known to me
to be the individual(s) described in, and who executed the foregoing document
and duly acknowledged to me that he executed the same.
_________________________________
Notary Public
CORPORATE SIGNATORY
-------------------
STATE OF ________, COUNTY OF ____________________________ ss.:
On ______________________, 199__ before me_____________________
personally came ____________________________ to me known, who, by me duly sworn,
did depose and say that deponent is the ___________________of _________________,
the corporation described in, and which executed the foregoing document; and
that deponent signed deponent's name by order of the board of directors.
_________________________________
Notary Public
21
Schedule A
----------
Capital Accounts as of the Effective Date
-----------------------------------------
Initial Capital Capital Account
Contribution ---------------
---------------
General Partners
----------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $ 1,000.00 $ 1,000.00
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $ 24,000.00 $ 24,000.00
Limited Partners
----------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $2,475,000.00 $2,475,000.00
A-1