Exhibit 99.2
LIMITED PARTNERSHIP AGREEMENT
OF
YELLOW ROSE PARTNERS, L.P.
This Limited Partnership Agreement ("Agreement") of Yellow Rose
Partners, L.P. is made and entered into effective as of the 24th day of
January, 1997 (the "Effective Date"), by and among Group 31, Inc., a Texas
corporation ("Group"), as the general partner and each person whose name is
subscribed to a signature page of this Agreement and accepted as a limited
partner as evidenced by the General Partner's execution of such signature
page. The general partner and the limited partners are sometimes referred
to herein individually as a "Partner" and collectively as the "Partners".
R E C I T A L S
A. The Partners formed Yellow Rose Partners as a Texas partnership
on November 19, 1996, pursuant to the Partnership Agreement of Yellow Rose
Partners.
B. The Partners desire to convert Yellow Rose Partners into a Texas
limited partnership and to continue the business of Yellow Rose Partners as
provided in this Agreement.
WITNESSETH:
For and in consideration of the mutual covenants set forth herein and
for other good and valuable consideration, the adequacy, receipt, and
sufficiency of which are hereby acknowledged the Partners hereby agree as
follows:
ARTICLE I
ORGANIZATION AND PURPOSE
Section 1.01. Formation of Limited Partnership. The Partners hereby
agree to continue as partners and to convert Yellow Rose Partners from a
general partnership to a limited partnership (the "Partnership") pursuant
to Article 6132a-1 Tex. Rev. Civ. Stat. ▇▇▇., known as the Texas Revised
Limited Partnership Act (the "Act"), and for the Partnership to continue
the business and operations of Yellow Rose Partners. Group shall be the
general partner of the Partnership and is hereinafter sometimes referred to
as the "General Partner". Those persons executing this Agreement as
limited partners shall be the limited partners of the Partnership and are
hereinafter sometimes referred to individually as a "Limited Partner" or
collectively as the "Limited Partners".
Section 1.02. Name. The name of the Partnership shall be Yellow Rose
Partners, L.P., provided, that the General Partner may in its sole
discretion change the name of the Partnership at any time. All business
and affairs of the Partnership shall be conducted solely under, and all
Partnership Assets (as that term is defined in Section 1.04) shall be held
solely in, such name unless otherwise determined by the General Partner.
Section 1.03. Effective Date and Term. The Partnership shall be in
effect for a term beginning on the Effective Date and shall continue under
this Agreement (as amended from time to time) until dissolved upon the
occurrence of an event that causes the dissolution of the Partnership in
accordance with the provisions of this Agreement (unless reconstituted as
provided herein), and thereafter to the extent provided by applicable law,
until wound up and terminated as provided herein.
Section 1.04. Purposes and Scope of Business. The business and
purposes of the Partnership are (a) to make investments of any nature, (b)
to purchase (on margin or otherwise), invest in, sell (including short
sales), exchange or otherwise dispose of, including pursuant to repurchase
and reverse repurchase transactions, and to generally deal in and with any
and all forms of, securities, commodity futures and financial instruments
of every kind and nature ("Securities"), including, but not limited to,
stocks, bonds, notes, debentures, warrants, listed and over-the-counter
options (whether on individual stocks or products or groups or indices of
stocks or products), commercial paper, commodity futures and commodity
options (whether relating to financial products or physical commodities),
foreign futures contracts, forward and spot contracts, foreign exchange
transactions, and any form of derivative transactions based upon or
relating to any of the foregoing, including transactions commonly referred
to as "swap," "cap" or "collar" transactions and including any transactions
based upon or incorporating all or any part of the documents or definitions
published by the International Swaps and Derivatives Association, Inc., or
any successor organization, (c) to enter into and become a partner of other
owner in a general or limited partnership, joint ventures, or limited
liability entities having the same or similar purpose as set forth in (a)
and (b) above, and (d) to borrow, on margin or otherwise, such funds (in
addition to the capital contributions provided for herein) that the General
Partner determines to be necessary or advisable to conduct the business of
the Partnership and to carry out any of the foregoing. Subject to the
terms and conditions of this Agreement, the Partnership shall have the
power and authority to do all such other acts and things as may be
necessary, desirable, expedient, convenient for, or incidental to, the
furtherance and accomplishment of the foregoing objectives and purposes and
for the protection and benefit of the Partnership. The assets of the
Partnership, whether now or hereafter owned, are hereinafter sometimes
referred to as the "Partnership Assets".
Section 1.05. Documents. The General Partner, or anyone designated
by the General Partner, is hereby authorized to execute a certificate of
limited partnership of the Partnership ("Certificate of Limited
Partnership") in accordance with the Act and cause the same to be filed in
the office of the Secretary of State of the State of Texas in accordance
with the provisions of the Act. The Partnership shall promptly execute and
duly file with the proper offices in each state in which the Partnership
may conduct the activities hereinafter authorized, one or more certificates
as required by the laws of each such state in order that the Partnership
may lawfully conduct the business, purposes, and activities herein
authorized in each such state, and the Partnership shall take any other
action or measures necessary in such state or states for the Partnership to
conduct such activities. The General Partner may amend the Certificate of
Limited Partnership to reflect any change in the Partnership's name in
accordance with Section 1.02 hereof.
Section 1.06. Principal Place of Business. The principal place of
business of the Partnership shall be ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or at such other place or places as may be approved by
the General Partner. The General Partner shall be responsible for
maintaining at the Partnership's principal place of business those records
required by the Act to be maintained there.
Section 1.07. Registered Agent and Office. The Registered Agent (as
defined in the Act) for the Partnership shall be ▇. ▇. ▇▇▇▇▇▇. The
Registered Office (as defined in the Act) of the Partnership shall be ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Section 1.08. Certain Definitions.
"Accounting Date" shall mean the close of business on the date of (a)
the acquisition of an additional interest (including contributions by the
Partners in a manner other than in accordance with their then existing
Percentage Interests) in the Partnership by any new or existing Partner in
exchange for more than a de minimis capital contribution, (b) the
distribution by the Partnership to a Partner of more than a de minimis
amount of Partnership Assets (including cash) unless such distribution is
to all Partners in accordance with their then existing Percentage
Interests, (c) the termination of the Partnership for federal income tax
purposes pursuant to Section 708(b)(1)(B) of the Code (as herein defined),
and (d) the end of each fiscal year of the Partnership.
"Accounting Period" shall mean the period beginning at the opening of
business on the day following any Accounting Date (or the Effective Date of
this Agreement, in the case of the first Accounting Period) and continuing
until the close of business on the next succeeding Accounting Date.
"Net Profits" or "Net Losses" shall mean, with respect to the
Partnership at the close of each Accounting Period, the excess or the
deficiency, as the case may be, of all income and gain for such Accounting
Period over the aggregate of all expenses, deductions, and losses for such
Accounting Period based on a valuation of the Partnership Assets at the
close of such Accounting Period and a hypothetical sale of the Partnership
Assets at their then-current Values based on and using the market valuation
made at the last prior Accounting Date.
"Partner Affiliate" of any Partner shall mean any shareholder,
director, officer, partner, employee, family member, agent or other
affiliate of any Partner (each a "Person"); any entity owning directly or
indirectly any such Partner or Person; any entity owed directly or
indirectly by any such Partner or Person; or any entity under common
ownership with any such Partner or Person.
"Valuation Date" shall mean any date that the Partnership Assets are
valued for any reason.
"Value" shall mean (a) with respect to any Security:
(i) for marketable Securities listed on a national
Securities exchange or authorized for trading on the National
Market System Quotations, the last sales price on the Valuation
Date, or in the absence of a sale on such date, the mean between
the "bid" and "asked" prices on such day, or if no such "bid" and
"asked" prices exist, by such method as the General Partner
determines will reflect the fair market value, provided, that if
a Security is listed on more than one exchange, the General
Partner shall use the price on the New York Stock Exchange, if
available, or, if not, the price on the exchange selected by the
General Partner;
(ii) for marketable Securities traded in the
over-the-counter market and reported in the National Association
of Securities Dealers' Automated Quotation System, the closing
bid price on the Valuation Date as reported by such system if
held long and its closing "asked" price if held short, provided,
that if such price is not available, the Securities shall be
valued by such method as the General Partner reasonably
determines will reflect their fair value;
(iii) for Securities not specified in (i) or (ii) above,
and for which prices are regularly quoted (on a daily basis) by
at least two (2) independent recognized dealers, the most recent
market prices as reported by such dealers;
(iv) for "put" and "call" options written by others and
owned by the Partnership, (A) the value of a "put" option shall
be the amount by which the option price exceeds the market price,
and (B) the value of a "call" option shall be the amount by which
the market price exceeds the option price;
(v) for "put" and "call" options written by the
Partnership, such options shall be treated as liabilities of the
Partnership to the extent the market price of the Security is
less than (for a put) or greater than (for a call) the strike
price of the option;
(vi) for "unregistered Securities" purchased on an
"investment letter" basis, or subject to other restrictions on
transfer, determined by such method as the General Partner
determines will best reflect their fair value in light of
transfer restrictions; and
(vii) for all other Securities, the cost of or such
other value as reasonably determined by the General Partner.
Foreign Securities listed on a recognized exchange shall be included
in (i) above; those regularly reported on a recognized automated
quotation system shall be included in (ii) above; and those regularly
quoted (on a daily basis) by at least two (2) independent recognized
dealers shall be included in (iii) above; and
(b) with respect to any other Partnership Asset the market value of
such Partnership Asset as of the Valuation Date as determined by the
General Partner in its sole discretion.
ARTICLE II
OPERATIONS
Section 2.01. Management of Partnership.
(a) The right to manage, control, and conduct the business and
affairs of the Partnership shall be vested solely in the General Partner.
Except as provided in Section 8.01, the Limited Partners shall not take
part in the management of the affairs of the Partnership and under no
circumstances may any Limited Partner control the Partnership business or
sign for or bind the Partnership. Without limiting the generality of the
foregoing, and notwithstanding anything to the contrary contained herein,
the General Partner shall have the exclusive authority to act for and on
behalf of the Partnership, and in accordance therewith the General Partner
may, on behalf of the Partnership:
(i) acquire and deal with any additional Securities;
(ii) sell, exchange, mortgage, encumber or otherwise transfer all or
any part of the Securities;
(iii) finance or refinance the Partnership or all or any part of
the Partnership Assets;
(iv) vote or otherwise take any action, directly or indirectly,
required of or allowed to the Partnership with respect to any of
the Partnership Assets including, without limitation, the
Securities;
(v) open, maintain and close accounts with brokers;
(vi) open, maintain and close bank accounts and draw checks and other
orders for the payment of money;
(vii) acquire any Securities on margin;
(viii) file all disclosure documents required by federal and state
securities laws, including, without limitation, Forms 13D
and filings required under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇, and take any
other action as the General Partner may deem necessary,
proper and advisable in order to comply with applicable
laws;
(ix) enter into, make and perform all contracts, agreements and other
undertakings as may be necessary or advisable or incidental to
carrying out the business and purposes of the Partnership;
(x) ▇▇▇ and be sued; prosecute, settle or compromise all claims
against third parties; compromise, settle or accept judgment with
respect to claims against the Partnership; and execute all
documents and make all representations, admissions and waivers in
connections therewith; and
(xi) engage outside accountants, custodians, consultants, investment
advisors, attorneys, and any and all other third party agents and
assistants, both professional and non-professional, and
compensate them in such reasonable degree and manner as the
General Partner may deem necessary or advisable.
Except as expressly limited in this Agreement, the General Partner shall
have the rights, authority, and powers of general partners with respect to
the Partnership business and the Partnership Assets as set forth in the Act
as in effect upon the Effective Date of this Agreement. The General
Partner shall not be required to devote its full time and attention to the
business of the Partnership, but only such time as it deems necessary for
the proper conduct of the Partnership's affairs.
(b) As used in this Agreement, "Approved by the Partners", "Approval
of the Partners", and other like capitalized terms shall mean the approval
or consent of the Partners holding a majority of the Percentage Interests
in the Partnership. If any Partner or Partners holding a majority of the
Percentage Interests in the Partnership approve of, consent to, or
otherwise take any action requiring the Approval of the Partners or similar
level of consent, such action shall neither require any further polling of
any other Partners, nor require any further approval, consent, or action of
any other Partners.
Section 2.02. Partner Affiliates. The General Partner shall have the
right to cause the Partnership to enter into contracts or otherwise deal
with any Partner Affiliates in any capacity, including, without limitation,
in connection with the financing, management, and development of the
Partnership Assets, except that the terms of any such arrangement shall be
commercially reasonable and competitive with amounts that would be paid to
third parties on an "arms-length" basis.
Section 2.03. Expenses. The Partnership shall pay or reimburse the
General Partner and the Tax Matters Partner (as defined in Section 2.05)
for all direct, out-of-pocket expenses incurred by it with respect to its
duties under Section 2.01 and Section 2.05 to the Partnership, including,
without limitation, salaries, accounting expenses, insurance premiums
attributable directly to the Partnership, legal fees, and other direct
costs associated with the formation and operation of the Partnership.
Section 2.04. Exculpations; Indemnities.
(a) Neither the Partners, the Tax Matters Partner, their Partner
Affiliates nor any of their respective shareholders, officers, directors,
partners, members, managers, employees or agents (individually a "Covered
Person") shall be liable to the Partnership, any Partner, or any other
person for any act or omission taken or suffered by such Covered Person in
good faith and in the belief that such act or omission is in or is not
opposed to the best interests of the Partnership, provided, that such act
or omission is not fraud, willful misconduct, or a knowing violation of
this Agreement by such Covered Person. No Covered Person shall be liable
to the Partnership, any Partner, or any other person for any action taken
by any other Partner, nor shall any Covered Person be liable to the
Partnership, any other Partner, or any other person for any action of any
employee or agent of the Covered Person, provided, such action is within
the scope of the purposes of the Partnership and the Covered Person seeking
exculpation satisfies the parameters of the preceding sentence.
(b) To the fullest extent allowed or permitted under any provision of
applicable law, including, without limitation, the Act, the Partnership
shall indemnify, defend, and hold harmless each Partner, its Partner
Affiliates and their respective shareholders, officers, directors,
partners, members, managers, employees or agents (individually an
"Indemnitee") to the extent of the Partnership Assets, from and against any
losses, expenses, judgments, fines, settlements, and damages incurred by
the Partnership or such Indemnitee arising out of any claim based upon acts
(including, without limitation, negligent acts) performed or omitted to be
performed by the Partnership or such Indemnitee in connection with the
business of the Partnership, including, without limitation, costs,
expenses, and attorneys' fees expended in the settlement or defense of any
such claim. All decisions of the Partnership concerning any action allowed
or permitted under applicable law concerning the indemnity of any person or
entity by the Partnership shall be made as Approved by the Partners.
Section 2.05. Tax Matters Partner. The General Partner shall act as
the "Tax Matters Partner" for federal income tax purposes. The Tax Matters
Partner shall mean the Partner (a) designated as the "tax matters partner"
within the meaning of Section 6231(a)(7) of the Internal Revenue Code of
1986, as amended from time to time (or any corresponding provisions of
succeeding law, collectively the "Code") and (b) whose responsibilities as
Tax Matters Partner include, where appropriate, commencing on behalf of the
Partnership certain judicial proceedings regarding Partnership federal
income tax items and informing all Partners of any administrative or
judicial proceeding involving federal income taxes. In exercising its
responsibilities as Tax Matters Partner, the General Partner shall have the
final decision making authority with respect to all federal income tax
matters involving the Partnership. Any direct out-of-pocket expense
incurred by the Tax Matters Partner in carrying out its responsibilities
and duties under this Agreement shall be allocated to and charged to the
Partnership as an expense of the Partnership for which the Tax Matters
Partner shall be reimbursed.
Section 2.06. Securities. The Partners and their Partner Affiliates
agree that, unless approved by the General Partner, no Partner or Partner
Affiliate will acquire, hold or dispose of any Securities from any issuer
of Securities held by the Partnership other than through or on behalf of
the Partnership. The General Partner shall have no obligation to acquire
or dispose of any Securities, or take any other action respecting any
Securities, if any such action would violate any law or agreement.
ARTICLE III
FINANCING
Section 3.01. Capital Contributions.
(a) Each Partner has contributed (the "Initial Capital
Contributions") to the capital of the Partnership the amount in cash set
forth on such Partner's signature page attached hereto.
(b) If at any time the General Partner determines, in its sole
discretion, that additional funds are needed to acquire Securities, then
from time to time the General Partner may make a written call for such
funds ("Call"). Within thirty (30) days after the General Partner gives
written notice of a Call pursuant to this Section 3.01(b), the Partners
may, but shall not be obligated to, make additional capital contributions
to the Partnership, pro rata in accordance with their Percentage Interests
(with each such contribution being referred to as an "Additional Capital
Contribution"). Notwithstanding the foregoing sentence or any other
provision to the contrary contained in this Agreement, the General Partner
may, in its sole discretion, (i) admit New Partners to fund all or any
portion of such Call and/or (ii) permit some or all existing Partners to
fund all or any portion of such Call in ratios other than their relative
Percentage Interests, provided, that any existing Partner not requested by
the General Partner to fund any portion of any such Call shall not have any
right to make an Additional Capital Contribution with respect to such Call.
(c) If at any time the General Partner determines, in its sole
discretion, that additional funds are needed for (i) any direct
out-of-pocket costs and expenses incurred by the Partnership in connection
with the formation, financing, and operation of the Partnership (other than
to acquire securities), or (ii) the normal day-to-day business and affairs
of the Partnership or any other Partnership purpose as determined in the
sole discretion of the General Partner, then from time to time the General
Partner may make a written Call for such funds. Within thirty (30) days
after the General Partner gives written notice of a Call pursuant to this
Section 3.01(c), the Partners may, but shall not be obligated to, make
additional capital contributions to the Partnership, pro rata in accordance
with their Percentage Interests (with each such contribution also being
referred to as an "Additional Capital Contribution").
(d) If any Partner elects not to deliver (the "Non-Contributing
Partner") to the General Partner for the use of the Partnership his or its
portion of any Call for which such Partner is requested to make an
Additional Capital Contribution (with such portion not being contributed
being referred to herein as the "Defaulted Amount") within the time
prescribed above, the other Partners shall have the right, but not the
obligation, without further notice, to advance for his or its own Capital
Account all or a portion of the Defaulted Amount (with any Partner
contributing a portion of the Defaulted Amount being referred to as a
"Contributing Partner"); provided, however, that if more than one Partner
desires to be a Contributing Partner and to advance a portion of the
Defaulted Amount, each such Contributing Partner shall only advance his or
its pro rata portion of the Defaulted Amount as among all Contributing
Partners. Except as provided in subsection (b) above but notwithstanding
any other provision contained in this Agreement to the contrary, each
Partner shall have the right to contribute his or its pro rata portion of
any Additional Capital Contributions (except to the extent such Additional
Capital Contribution is from a New Partner as part of his or its initial
contribution to the capital of the Partnership) pro rata in accordance with
his or its then existing Percentage Interest.
(e) No Partner may make capital contributions to the Partnership
except as provided in this Section 3.01.
Section 3.02. Partnership Borrowing. The Partnership may borrow
funds at any time, from any person, including, without limitation, any
Partner or Partner Affiliate, and including margin borrowing, for any
Partnership purpose as determined by the General Partner in its sole
discretion, and such borrowing shall be on such terms as the General
Partner may negotiate and approve in its sole discretion. All debt
incurred by the Partnership from any lender, including from any Partner or
Partner Affiliate, shall be senior to and have payment priority ahead of
all distributions to the Partners, whether liquidating or non-liquidating
and whether such distributions represent a return of capital or otherwise.
Section 3.03. Capital Accounts. The amount of a Partner's capital
account ("Capital Account") in the Partnership shall be determined in
accordance with Regulations Section 1.704-1(b)(2)(iv), including by:
(a) crediting to such account (i) all contributions to the
Partnership made by or on behalf of such Partner or his or its predecessor
in interest, including the fair market value of any property contributed
(less any liabilities assumed by the Partnership or to which any property
may be subject) and (ii) all gains and income of the Partnership allocated
to such Partner or his or its predecessor in interest; and
(b) debiting to such account (i) all distributions from the
Partnership made to or on behalf of such Partner or his or its predecessor
in interest, including the fair market value of any property distributed
(less any liabilities assumed by the Partner or to which any property may
be subject) and (ii) all losses and deductions of the Partnership allocated
to such Partner or his or its predecessor in interest.
Section 3.04. Adjustment for Fair Market Value of Assets.
(a) The General Partner may elect, in its sole discretion, as of any
Accounting Date, to adjust the value of all Partnership Assets on the books
of the Partnership to equal their respective Values as of such Accounting
Date, or if such Accounting Date is not a business day, then as of the last
business day prior to such Accounting Date.
(b) In the event the Values of the Partnership Assets on the books of
account of the Partnership are adjusted pursuant to this Section 3.04, the
Capital Accounts of all Partners shall be adjusted simultaneously pursuant
to Section 4.03(b) to reflect the aggregate net adjustment as if the
Partnership recognized gain and loss equal to the amount of such net
adjustment and the Partners' Percentage Interests (as defined herein) shall
be recalculated pursuant to Section 4.01 hereof.
Section 3.05. Limited Liability of Limited Partners. Notwithstanding
anything contained in this Agreement to the contrary, the liability of each
Limited Partner for any of the debts, losses, or obligations of the
Partnership shall be limited to the amount of the sum of such Limited
Partner's capital contributions pursuant to Section 3.01 hereof.
Accordingly, no Limited Partner shall be obligated to provide additional
capital to the Partnership or its creditors by way of contribution, loan,
or otherwise beyond the amount of the capital contributions required of
such Limited Partner pursuant to Section 3.01 hereof. Except as provided
in the Act, no Limited Partner shall have any personal liability
whatsoever, whether to the Partnership or any third party, for the debts of
the Partnership or any of its losses beyond the amount of the Limited
Partner's capital contributions.
Section 3.06. Treatment of Capital Contributions. Except as provided
in this Agreement to the contrary, no Partner shall be entitled to interest
on his or its contributions to the capital of the Partnership nor shall any
Partner be entitled to demand the return of all or any part of such
contributions to the capital of the Partnership.
Section 3.07. Benefits of Agreement. Nothing in this Agreement, and,
without limiting the generality of the foregoing, in this Article III,
expressed or implied, is intended or shall be construed to give to any
creditor of the Partnership or to any creditor of any Partner or any other
person or entity whatsoever, other than the Partners and the Partnership,
any legal or equitable right, remedy, or claim under or in respect of this
Agreement or any covenant, condition, or provision herein contained, and
such provisions are and shall be held to be for the sole and exclusive
benefit of the Partners and the Partnership.
ARTICLE IV
ACCOUNTING, ALLOCATIONS AND DISTRIBUTIONS
Section 4.01. Percentage Interests. As of the Effective Date, each
Partner shall have the initial percentage interest in the Partnership
(collectively the "Percentage Interests" and individually, a "Percentage
Interest") set forth on such Partner's signature page attached hereto. On
each Accounting Date, the General Partner shall determine each Partner's
Percentage Interest in the Partnership for the next Accounting Period in
accordance with this Section 4.01. The Percentage Interest of each Partner
for an Accounting Period shall be an amount equal to a fraction, expressed
as a percentage, wherein the numerator is such Partner's Capital Account
adjusted as of the Accounting Date immediately preceding the new Accounting
Period and the denominator is the sum of all Partners' Capital Accounts as
of the Accounting Date immediately preceding the new Accounting Period in
each case following any adjustments to Capital Accounts pursuant to Section
3.04.
Section 4.02. Tax Status and Reports.
(a) Notwithstanding any provision contained in this Agreement to the
contrary, solely for federal income tax purposes, each of the Partners
hereby recognizes that the Partnership will be subject to all provisions of
Subchapter K of the Code; provided, however, that the filing of United
States Partnership Returns of Income shall not be construed to extend the
purposes of the Partnership or expand the obligations or liabilities of the
Partners.
(b) The General Partner or, at its discretion, an accountant
("Accountant") selected by the General Partner shall prepare or cause to be
prepared all tax returns and statements, if any, that must be filed on
behalf of the Partnership with any taxing authority and shall timely file
such returns or statements.
Section 4.03. Allocations.
(a) At the close of business on each Accounting Date, the General
Partner shall determine the Net Profits or Net Losses for the Partnership
for the Accounting Period ending on such date.
(b) The Net Profits and Net Losses of the Accounting Period shall be
allocated among the Capital Accounts of the Partners, pro rata in
accordance with their relative Percentage Interests for such Accounting
Period.
(c) For tax purposes, the General Partner shall reasonably determine
the allocations of all items of income, gain, loss, and deduction so as to
as nearly as possible on a cumulative basis allocate tax gain or loss
recognized from the sale, exchange, or other disposition of a Security and
other ordinary items of income and expenses to the Partners who received
the corresponding economic gain or loss, as the case may be, with respect
to such Security or other ordinary items pursuant to Section 4.03(b)
hereof.
(d) The tax allocations made in accordance with Sections 4.03(e) and
4.05(b) and (c) (collectively, the "Regulatory Allocations") shall be taken
into account in allocating, for tax purposes, items of income, gain, loss,
and deduction among the Partners so that, to the extent possible, the net
amount of such allocations of other items and the Regulatory Allocations
made to each Partner shall be equal to the amount that would have been
allocated to each such Partner if the Regulatory Allocations had not
occurred.
(e) Notwithstanding subsections (b) or (c) above, any loss or
deductions attributable to any Partnership recourse liability (as defined
in Regulations Section 1.752-1(a)(i)) ("Recourse Debt") must be specially
allocated to any Partner who bears the economic risk of loss with respect
to the Recourse Debt to which such loss or deductions are attributable. If
any allocations are made to any Partner pursuant to the foregoing sentence,
then after any allocations required by Section 4.04 hereof have been made
but prior to allocations pursuant to Section 4.03(b) and (c), income shall
be allocated to such Partner until on a cumulative basis an aggregate
amount of income equal to such cumulative deductions and losses has been
allocated to each such Partner.
Section 4.04. Certain Asset Value/Tax Differences.
(a) In accordance with Section 704(c) of the Code and the applicable
Regulations thereunder, income, gain, loss, deduction, and tax depreciation
with respect to any property contributed to the capital of the Partnership,
or with respect to any property which has a Value different than its
adjusted tax basis, shall, solely for income tax purposes, be allocated
among the Partners so as to take into account any variation between the
adjusted tax basis of such property to the Partnership and the Value of
such property. Any elections or other decisions relating to such
allocations shall be made by the General Partner in any manner that
reasonably reflects the purpose and intention of this Agreement.
Allocations pursuant to this Section 4.04 are solely for purposes of
federal, state and local taxes and shall not affect, or in any way be taken
into account in computing, any Partner's Capital Account or share of other
items or distributions pursuant to any provision of this Agreement.
Notwithstanding the preceding provisions of this Article, the total amount
of gain or loss allocated to the contributing Partner pursuant to this
Section 4.04 shall not exceed the amount of taxable income or loss realized
for tax purposes by the Partnership on the sale or disposition of such
property.
(b) Notwithstanding anything contained in this Section 4.04 to the
contrary, in the event that the Partners' Percentage Interests change
pursuant to the provisions of Section 4.01 hereof, allocations of gains and
losses with respect to the sale or exchange of Partnership Assets shall be
in accordance with Regulations Section 1.704-1(b)(4)(i) so as to take into
account the variation between the adjusted tax basis and Value of such
Partnership Asset in accordance with the Regulations promulgated under
Section 704(c) of the Code.
Section 4.05. Minimum Gain and Income Offsets.
(a) Definitions.
(i) "Partner Minimum Gain" shall be "partner nonrecourse
debt minimum gain," as defined in Regulations Section
1.704-2(i)(2) and determined in accordance with Regulations
Sections 1.704-2(i)(3) and 1.704-2(k).
(ii) "Partner Nonrecourse Debt" has the meaning set forth
in Regulations Sections 1.704-2(b)(4) and 1.704-2(i).
(iii) "Partner Nonrecourse Deduction" has the meaning set
forth in Regulations Section 1.704-2(i).
(iv) "Partnership Minimum Gain" has the meaning set forth
in Regulations Section 1.704-2(d) and shall be determined in
accordance with the provisions of Regulations Section 1.704-2(k).
(v) "Regulations" means the temporary and permanent Income
Tax Regulations promulgated under the Code, as such regulations
may be amended from time to time (including corresponding
provisions of succeeding Regulations).
(b) Minimum Gain.
(i) Notwithstanding any other provision of this Agreement to
the contrary, if the Partnership Minimum Gain on the last day of any
fiscal year is less than the Partnership Minimum Gain on the last day
of the immediately preceding fiscal year, then (before any other
allocation of Partnership items for such year under this Agreement,
other than as provided in paragraph (ii) below) there shall be
specially allocated to each Partner items of Partnership income and
gain for such year (and, if necessary, subsequent fiscal years) in an
amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain (determined in accordance with Regulations
Section 1.704-2(g)). The items to be so allocated shall be determined
in accordance with Regulations Sections 1.704-2(f)(6) and
1.704-2(j)(2)(i) and (iii). This Section 4.05(b)(i) is intended to
comply with the minimum gain chargeback requirement in Regulations
Section 1.704-2(f) and shall be interpreted consistently therewith.
(ii) Subsequent to any allocations under Section 4.05(b)(i)
above, other than allocations of gain from the disposition of property
subject to Partner Nonrecourse Debt, if Partner Minimum Gain on the
last day of any fiscal year is less than the Partner Minimum Gain on
the last day of the immediately preceding fiscal year, then, except as
provided herein, each Partner shall be specially allocated items of
Partnership income and gain for such year (and, if necessary,
subsequent fiscal years) in an amount equal to that Partner's share,
if any, (determined in accordance with Regulations Section
1.704-2(i)(4)) of the net decrease in Partner Minimum Gain (such net
decrease to be determined in a manner consistent with the provisions
of Regulations Section 1.704-2(d) and 1.704-2(g)(3)). The items to be
so allocated shall be determined in accordance with the provisions of
Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii) and (iii).
Notwithstanding the foregoing, no such special allocations of income
and gain shall be made to the extent that the net decrease in Partner
Minimum Gain described above arises because the liability ceases to be
Partner Nonrecourse Debt due to a conversion, refinancing, or other
change in the debt instrument that causes it to become partially or
wholly a nonrecourse liability within the meaning of Regulations
Section 1.752-1(a)(2). This Section 4.05(b)(ii) is intended to comply
with the chargeback and other provisions of Regulations Section
1.704-2(i) and shall be interpreted consistently therewith.
(c) Qualified Income Offset. Notwithstanding any other provision of
this Agreement, if during any fiscal year any Partner (i) is allocated
pursuant to Code Section 706(d) or Regulations Section 1.751-1(b)(2)(ii)
any Net Loss, loss, items of loss, deductions, or Code Section 705(a)(2)(B)
expenditures, (ii) is distributed any cash or property from the Partnership
and such distributions exceed offsetting increases to such Partner's
Capital Account that are reasonably expected to occur during such year, or
(iii) receives any other adjustment, allocation, or distribution described
in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6) and, as a
result of such adjustment, allocation, or distribution, such Partner has a
Qualified Income Offset Amount (as hereinafter defined), then items of
income and gain (including gross income) for such fiscal year or other
period (and, if necessary, subsequent fiscal years) shall (prior to any
allocation pursuant to Section 4.03 hereof) be allocated to such Partner in
an amount equal to his Qualified Income Offset Amount; provided, however,
that any allocation of income or gain shall be required under this sentence
only if and to the extent that such Partner would have a Qualified Income
Offset Amount after all other allocations provided for in this Agreement
have been tentatively made as if Sections 4.05(b) and (c) were not
contained herein. As used herein, the term "Qualified Income Offset
Amount" for a Partner means the excess, if any, of (x) the negative balance
a Partner has in its Capital Account following the adjustment, allocation,
or distribution described in the preceding sentence, over (y) the maximum
amount that it is obligated (or is deemed to be obligated) to restore to
the Partnership upon liquidation as determined in accordance with
Regulations Sections 1.704-2(f), (g), and (i). This Section 4.05(c) is
intended to satisfy the provisions of Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
Section 4.06. Accounting.
(a) The fiscal year of the Partnership shall end on the last day of
December of each year.
(b) The books of account of the Partnership shall be kept and
maintained at all times at the principal place of business of the
Partnership or at such other place or places approved by the General
Partner. The books of account shall be maintained according to federal
income tax principles using the accrual method of accounting, consistently
applied, and shall show all items of income and expense.
(c) If requested by any Partner, the General Partner shall cause a
balance sheet of the Partnership dated as of the end of the fiscal year and
a related statement of income or loss for the Partnership for such fiscal
year to be prepared by the Accountant and furnished, at the expense of the
Partnership, to each of the Partners on an annual basis, within ninety (90)
days after the close of each fiscal year.
(d) Each Partner shall have the right at reasonable times and upon
reasonable advance notice during usual business hours to audit, examine,
and make copies of or extracts from the books of account of the
Partnership. Such right may be exercised through any agent or employee of
such Partner designated by him or it or by an independent certified public
accountant designated by such Partner. Each Partner shall bear all
expenses incurred in any examination made on behalf of such Partner.
Section 4.07. Bank Accounts. Funds of the Partnership shall be
deposited in a Partnership account or accounts in the bank or banks as
selected by the General Partner. Withdrawals from bank accounts shall only
be made by the General Partner or such other parties as may be approved by
the General Partner.
Section 4.08. Distributions to Partners. From time to time in its
sole discretion, the General Partner shall determine the amount of
Distributable Funds of the Partnership. The term "Distributable Funds"
shall mean the amount by which the total of the cash (or other assets)
available to the Partnership from time to time from all sources is in
excess of expected debt service, working capital retention requirements of
the Partnership or any other Partnership purposes that the General Partner
deems necessary or appropriate, as determined by the General Partner in its
sole discretion. Except as may be provided in Article VII, all
Distributable Funds shall be distributed by the General Partner to the
Partners in accordance with their respective Percentage Interests at the
time of the distribution. The General Partner, in its sole discretion, may
distribute undivided interests in Partnership Assets in-kind, provided,
that such distribution shall be pro rata in accordance with the Partners'
relative Percentage Interests at the time of the distribution.
Section 4.09. Changes in Percentage Interests. If a Partner's
Percentage Interest changes during any fiscal year, the allocations to be
made pursuant to this Agreement shall be made in accordance with Section
706 of the Code, using any convention permitted by Section 706 of the Code
and the Regulations promulgated thereunder and selected by the General
Partner so as to equitably effectuate the allocations of this Article IV.
ARTICLE V
ASSIGNMENT
Section 5.01. Prohibited Transfers. Except as specifically provided
in this Article V and as may be provided in Article VII or Section 8.01, no
Limited Partner may sell, transfer, assign, mortgage, hypothecate, or
otherwise encumber or permit or suffer any encumbrance of all or any part
of his or its interest in the Partnership unless prior written consent is
obtained from the General Partner, and no General Partner may sell,
transfer, assign, mortgage, hypothecate, or otherwise encumber or permit or
suffer any encumbrance of all or any part of his or its interest in the
Partnership without obtaining prior written Approval of the Partners. Any
attempt so to transfer or encumber any such interest shall be null and
void, ab initio. The Partners will be excused from accepting the
performance of and rendering performance to any person other than the
Partner hereunder (including any trustee or assignee of or for such
Partner) as to whom such prior written consent has not been rendered.
Section 5.02. Further Restrictions on Transfer.
(a) In the event of any assignment or transfer permitted under this
Article, the interest so assigned or transferred shall remain subject to
all terms and provisions of this Agreement; the assignee or transferee
shall be deemed, by accepting the interest so assigned or transferred, to
have assumed all the obligations hereunder relating to the interests or
rights so assigned or transferred and shall agree in writing to the
foregoing if requested by the General Partner. Any transferee or assignee
of the interest of a Partner shall be entitled only to receive
distributions hereunder until such transferee or assignee has been admitted
as a Substituted Partner; provided, however, that such transferee or
assignee shall be subject to the Additional Capital Contribution provisions
of Article III and that the Percentage Interest of such transferee or
assignee shall be subject to redetermination pursuant to Section 4.01.
Until such transferee or assignee (other than an existing Partner) is
admitted to the Partnership as a Substituted Partner, the Partner
transferring all or any portion of his or its interest to such assignee or
transferee shall remain primarily and directly liable for the performance
of all his or its obligations under this Agreement. After the admission of
such assignee or transferee as a Substituted Partner, such transferor
Partner shall only be primarily and directly liable under this Agreement or
otherwise for any obligations or liabilities accruing prior to the
effective time of the admission of such Substituted Partner, unless such
transferor Partner is released in writing from such obligations or
liabilities by the General Partner and such release is Approved by the
Partners.
(b) Any Partner making or offering to make a transfer of all or any
part of his or its interest in the Partnership shall indemnify and hold
harmless the Partnership and all other Partners from and against any costs,
damages, claims, suits, or fees suffered or incurred by the Partnership or
any such other Partner arising out of or resulting from any claims by the
transferee of such Partnership interest or any offerees of such Partnership
interest in connection with such transfer or offer.
Section 5.03. Substituted Partner. Except as otherwise provided in
Section 8.01 hereof, an assignee or transferee (other than an existing
Partner) of the interest of a Partner may be admitted as a substitute
partner ("Substituted Partner") only with the written consent of the
General Partner, which such consent shall be granted or denied in the sole
discretion of the General Partner. Unless the assignee is already a
General Partner, any assignee of a Partnership interest to whose admission
such consent is given shall become and shall have only the rights and
duties of a Limited Partner and the assigned Partnership interest shall
thereafter be a Limited Partner's interest. Upon the receipt by the
General Partner of an appropriate supplement to this Agreement pursuant to
which such Substituted Partner agrees to be bound by all the terms and
provisions of this Agreement, the General Partner shall reflect the
admission of a Substituted Partner and the withdrawal of the transferring
Partner, if appropriate, by preparing a supplemental exhibit, dated as of
the date of such admission and withdrawal, and by filing it with the
records of the Partnership. Any Substituted Partner shall, if required by
the General Partner, prior to such admission, also execute any other
documents requested by the General Partner, including, without limitation,
an irrevocable power of attorney in form satisfactory to the General
Partner appointing the General Partner as such person's attorney-in-fact
with full power to execute, swear to, acknowledge, and file all
certificates and other instruments necessary to carry out the provisions of
this Agreement, including, without limitation, such undertakings as the
General Partner may require for the payment of all fees and costs necessary
to effect any such transfer and admission. Upon admission, such
Substituted Partner shall be subject to all provisions of this Agreement in
the place and stead of his assignor as if the Substituted Partner
originally was a party to this Agreement.
Section 5.04. Basis Adjustment. The Tax Matters Partner may cause,
in its sole and absolute discretion, the Partnership to elect pursuant to
Section 754 of the Code and the Regulations thereunder to adjust the basis
of the Partnership Assets as provided by Sections 743 or 734 of the Code
and the Regulations thereunder.
Section 5.05. Admission of Additional Partners.
(a) A new Partner ("New Partner") may be admitted to the Partnership
(i) in accordance with Section 3.01(b) or (ii) when otherwise Approved by
the Partners. Such New Partner shall (A) be admitted for fair value, as
determined by the General Partner in its reasonable discretion and in a
manner consistent with the determination of Percentage Interests set forth
in Article IV, and (B) execute an appropriate supplement to this Agreement
pursuant to which he agrees to be bound by all the terms and provisions of
this Agreement.
(b) Upon the receipt of the supplement described in Section 5.05(a),
the General Partner shall reflect the admission of the New Partner and the
reallocation of Percentage Interests in the records of the Partnership.
The admission of a New Partner shall not cause the dissolution of the
Partnership. Upon the admission of a New Partner pursuant to Section
5.05(a), the Percentage Interests of the Partners shall be redetermined in
accordance with Section 4.01.
Section 5.06. Other Restricted Transfers. Notwithstanding any other
provision herein to the contrary, unless prior written consent is given by
the General Partner, no transfer of any interest in the Partnership may be
made to any person who is related (within the meaning of Regulations
Section 1.752-4(b)) to any lender of the Partnership whose loan constitutes
a nonrecourse liability of the Partnership.
ARTICLE VI
WITHDRAWAL, DISSOLUTION, AND TERMINATION
Section 6.01. Withdrawal. No Limited Partner shall at any time
retire or withdraw from the Partnership without obtaining the prior written
consent of the General Partner and, except as provided in Section 8.01
hereof, no General Partner shall at any time retire or withdraw from the
Partnership without obtaining the prior written Approval of the Partners.
Retirement or withdrawal by any Partner in contravention of this Section
6.01 shall subject such Partner to liability for all damages caused any
other Partner (other than a Partner who is, at the time of such withdrawal,
in default under this Agreement) by such retirement or withdrawal and the
consequential dissolution of the Partnership.
Section 6.02. Dissolution of the Partnership. The Partnership shall
be dissolved upon the occurrence of any of the following:
(a) The withdrawal, as defined in the Act, of a General Partner,
provided, that the Partnership may be reconstituted and continued if:
(i) the remaining General Partner, if any, elects in
writing within ninety (90) days after such event to reconstitute
the Partnership, to continue as the General Partner, and to
continue the Partnership and its business, or
(ii) there is no remaining or Successor General Partner (as
defined in Section 8.01), then within ninety (90) days after such
event, all of the Limited Partners agree to appoint in writing a
successor General Partner, as of the date of the withdrawal of
the General Partner, and agree to reconstitute the Partnership
and continue the business of the Partnership, and such successor
General Partner agrees in writing to accept such election, or
(iii) the withdrawal of the General Partner results from its
removal by the Limited Partners as provided in Section 8.01 and a
Successor General Partner is appointed by the Limited Partners as
provided in Section 8.01;
(b) The sale or other disposition, not including an exchange, of
substantially all of the assets of the Partnership (except under
circumstances where all or a portion of the purchase price is payable after
the closing of the sale or other disposition);
(c) December 31, 2046, unless extended by the consent of all
Partners; or
(d) Subject to any obligations of the Partnership, when Approved by
the Partners.
Except as expressly provided, nothing contained in this Section 6.02 is
intended to grant to any Partner the right to dissolve the Partnership at
will (by retirement, resignation, withdrawal, or otherwise) or to exonerate
any Partner from liability to the Partnership and the remaining Partners if
he or it dissolves the Partnership at will.
Section 6.03. Reconstitution of Partnership. If the Partnership is
reconstituted as provided in Section 6.02(a)(i), (ii) or (iii), then, as of
the date of withdrawal, the General Partner with respect to which an event
of withdrawal under Section 6.02 has occurred (or his or its estate or
successor in interest) (the "Withdrawing General Partner") shall have none
of the powers of a General Partner under this Agreement or applicable law
and shall have only the rights and powers of an assignee of a Partner
hereunder to share in any Partnership profits, losses, gains, and
distributions in accordance with his or its Percentage Interest and shall
have no other rights or powers of a Partner hereunder; provided, however,
that any Withdrawing General Partner shall be subject to the Additional
Capital Contribution provisions of Article III and that any Withdrawing
General Partner who was removed by the Limited Partners pursuant to Section
8.01 shall become a Limited Partner if its interest is so converted as
provided in Section 8.01.
Section 6.04. Death, etc. of a Limited Partner; Divorce of a Partner.
(a) The death, disability, withdrawal, termination (in the case of a
Limited Partner that is a partnership or a trust), dissolution (in the case
of a Limited Partner that is a corporation or limited liability company),
retirement, or adjudication as a bankrupt of a Limited Partner (the
"Withdrawing Limited Partner") shall not dissolve the Partnership, but,
subject to the provisions of Section 6.04(b), the rights of such
Withdrawing Limited Partner to share in the profits and losses of the
Partnership and to receive distributions of Partnership funds shall, upon
the happening of such an event, pass to the Withdrawing Limited Partner's
estate, legal representative, or successors in interest, as the case may
be, subject to this Agreement, and the Partnership shall continue as a
limited partnership.
(b) Upon the occurrence of an event described in Section 6.04(a), the
General Partner shall, in its sole discretion, elect to either continue the
Partnership business (i) with the successors, assigns, heirs, devises,
beneficiaries, estate, or other transferee of such Withdrawing Limited
Partner (collectively, the "Distributees") as provided in Section 6.04(c)
or (ii) with the Partnership purchasing the interest of such Withdrawing
Limited Partner from all of his or its Distributees as provided in Section
6.04(d).
(c) If the General Partner elects to proceed pursuant to Section
6.04(b)(i), the Distributees of such Withdrawing Limited Partner shall
succeed to his or its interest in the Partnership, shall be admitted as
Limited Partners if approved by the General Partner in its sole discretion,
and shall be bound by the terms and provisions of the Agreement; provided,
however, if the interest of such Withdrawing Limited Partner passes, either
at the time of an occurrence described in Section 6.04(a) or subsequent
thereto, to more than one Distributee, then within sixty (60) days after
the distribution to more than one Distributee, the Distributees shall
appoint one person, firm, or corporation as the agent of and for such
Distributees (the "Agent"). Such Agent shall be responsible for
collecting, receiving, and making all payments and Additional Capital
Contributions required under this Agreement, shall vote the entire interest
of the Distributees if such vote is required by this Agreement, the Act, or
applicable law and shall perform all other obligations of such Distributees
performable by reason of or arising from their interest in the Partnership
as Limited Partners; provided, that the Agent shall not be admitted as a
Partner of the Partnership nor shall such Agent be entitled to exercise any
voting rights hereunder unless such rights are approved by the General
Partner in its sole discretion. All payments and/or disbursements due to
the Distributees for or arising from their interest in the Partnership
shall be deemed to have been validly made to such Distributees by paying
the same to such Agent. In the event that the Distributees for any reason
fail to designate such agent in writing in the manner and within the time
prescribed and fail to cure such default after ten (10) days written notice
from the General Partner to correct such default, the General Partner shall
retain any funds or property otherwise distributable to such Distributees
under this Agreement and shall appoint an Agent of and for the
Distributees. To the fullest extent allowed by applicable law, the
defaulting Distributees will indemnify, defend, and hold harmless such
Agent, the General Partner, and the Partners from and against any losses,
expenses, judgments, fines, settlements, and damages incurred by any of
them with respect to the provisions of this Section 6.04(c).
(d) If the General Partner elects to proceed pursuant to Section
6.04(b)(ii), then the General Partner shall cause the Partnership to
purchase the interest of such Withdrawing Limited Partner in the
Partnership from his or its Distributees at a price equal to the Current
Value of such interest, determined as though the effective date of the
withdrawal of such Withdrawing Limited Partner were an Adjusting Event.
(e) If, upon the divorce of any individual Partner, the spouse of any
such Partner receives an interest in the Partnership pursuant to the terms
of any divorce property settlement agreement, divorce decree, or otherwise,
then the Partnership shall have the right, as determined by the General
Partner, to purchase the interest of such spouse in the Partnership at a
price equal to the Current Value of such interest, determined as though the
effective date of such divorce were an Adjusting Event.
Section 6.05. Termination of Partnership.
(a) Upon dissolution of the Partnership unless continued pursuant to
Section 6.02, the Partnership shall be terminated as rapidly as business
circumstances will permit. At the direction of the General Partner, or a
Partner Approved by the Partners if the dissolution of the Partnership is
caused by the withdrawal of the General Partner (the General Partner or the
other Partner, as the case may be, being herein called the "Terminating
Partner"), a full accounting of the assets and liabilities of the
Partnership shall be taken and a statement of the Partnership Assets and a
statement of each Partner's Capital Account shall be furnished to all
Partners as soon as is reasonably practicable. The Terminating Partner
shall take such action as is necessary so that the Partnership's business
shall be terminated, its liabilities discharged, and its assets distributed
as hereinafter described. The Terminating Partner may sell all of the
Partnership Assets or distribute the Partnership Assets in kind; provided,
however, that the Terminating Partner shall ascertain the fair market value
of the Partnership Assets by appraisal or other reasonable means of all
Partnership Assets remaining unsold and each Partner's Capital Account
shall be charged or credited, as the case may be, as if such Partnership
Assets had been sold at the fair market value of the Partnership Assets and
the income, gains, losses, deductions, and credits realized thereby had
been allocated to the Partners in accordance with Article IV hereof. A
reasonable period of time shall be allowed for the orderly termination of
the Partnership to minimize the normal losses of a liquidation process.
(b) After the payment of all expenses of liquidation and of all debts
and liabilities of the Partnership in such order or priority as provided by
law (including any debts or liabilities to Partners, who shall be treated
as secured or unsecured creditors, as may be the case, to the extent
permitted by law, for sums loaned to the Partnership, if any, as
distinguished from capital contributions) and after all resulting items of
Partnership income, gain, credit, loss, or deduction are credited or
debited to the Capital Accounts of the Partners in accordance with Articles
III and IV hereof, all remaining Partnership Assets shall then be
distributed among the Partners in accordance with Section 4.08 hereof.
Upon termination, a Partner may not demand and receive cash in return for
such Partner's capital contributions and no Partner shall have any
obligation to restore any deficit that may then exist in that Partner's
Capital Account. Distribution on termination may be made by the
distribution to each Partner of an undivided interest in any asset of the
Partnership that has not been sold at the time of termination of the
Partnership.
Section 6.06. General Partners Not Personally Liable. No General
Partner nor any Partner Affiliate of any General Partner shall be
personally liable for the return of the Capital Contributions of any
Partner, and such return shall be made solely from available Partnership
Assets, if any, and each Limited Partner hereby waives any and all claims
it may have against any General Partner or any such Partner Affiliate in
this regard.
Section 6.07. Provisions Cumulative. All provisions of this
Agreement relating to the dissolution, liquidation, and termination of the
Partnership shall be cumulative to the extent not inconsistent with other
provisions herein; that is, the exercise or use of one of the provisions
hereof shall not preclude the exercise or use of any other provision of
this Agreement to the extent not inconsistent therewith.
ARTICLE VII
POWER AND AUTHORITY TO GUARANTEE KEYSTONE AND BASS LOANS
Section 7.01. Certain Definitions. For purposes of this Article, the
following terms shall have the following defined meanings, unless the
context otherwise requires:
(a) "Lenders" shall mean any lenders to Keystone and/or Bass.
(b) "Bass" shall mean ▇▇▇▇▇▇ ▇. ▇▇▇▇.
(c) "Keystone" shall mean Keystone, Inc., a Texas corporation.
(d) "Subordinated Debt" shall mean debt owing from the
Partnership to Keystone or Bass.
(e) "Guaranty" shall mean any guaranty by the Partnership of
amounts owed to any Lender by Keystone and/or Bass.
(f) "Guaranteed Obligations" shall mean obligations of any type
or kind of Keystone and/or Bass guaranteed by the Partnership to one or
more Lenders.
(g) "Bass Interest" shall mean the interest of Bass in the
Partnership.
(h) "Default Date" shall mean the date on which the Partnership
shall have been given notice of a default with respect to any Guaranteed
Obligations.
(i) "Supplementary Documents" shall mean any instruments,
security agreements, confirmations, certificates or other writings executed
and delivered by the General Partner supplementary to the execution and
delivery of any Guaranty.
(j) "Adjusted Value" shall mean a Partner's positive Capital
Account balance after any adjustments thereto in accordance with the terms
hereof for the accounting period ending on the Default Date, provided, that
for purposes of this definition for payment of any Guaranteed Obligation,
the value of all Partnership Assets shall be deemed to equal their
respective fair market values, as determined by the General Partner in its
sole discretion, as of the earlier of (i) the date on which the Partnership
makes a payment on such Guaranteed Obligation, or (ii) the 90th day
following the related Default Date, and the Capital Accounts of all
Partners shall be deemed to be adjusted to reflect the aggregate net
adjustment as if the Partnership recognized gain and loss upon the sale of
all Partnership Assets for their respective fair market values.
Section 7.02. Guarantees. The General Partner may from time to time
execute and deliver Guarantees to Lenders and grant security interests in
any or all Partnership Assets to secure Guaranteed Obligations, all upon
terms and conditions which the General Partner may deem to be appropriate
and suitable, as conclusively evidenced by the execution and delivery by
the General Partner of such Guarantees or such documents, subject however
to the following limitations:
(a) No General Partner shall have any personal liability to the
Lenders of any kind on account of the execution and delivery of any
Guaranty or any Supplementary Documents; and
(b) The amount payable by the Partnership under any Guaranty of a
Guaranteed Obligation of Bass shall not exceed the sum of:
(i) the Adjusted Value of the Bass Interest; plus
(ii) the amount of Subordinated Debt due to Bass or
Keystone, if any.
Section 7.03. Exculpation of General Partner. The Partners agree
that the General Partner shall be fully protected and shall not be subject
to liability so long as it in good faith believed that any Guaranty and/or
Supplementary Documents complied at the time of execution with the
provisions of this Article VII, notwithstanding any later determination of
non-compliance.
Section 7.04. Restriction on Disposition of Partnership Property. So
long as any Guaranty shall be in effect, the Partnership shall not sell any
property except at its fair market value.
Section 7.05. Payment of Guaranty. If the Partnership shall pay any
Guaranteed Obligations, such payment shall be treated, as among the
Partnership and the Partners, in the following order:
(a) First, as payment of interest on the Subordinated Debt;
(b) Second, as payment of principal of the Subordinated Debt; and
(c) Third, as a redemption, in whole or in part, as applicable,
of the Bass Interest.
Section 7.06. Delivery of Guaranty Agreements. The Partners hereby
agree that the General Partner is specifically authorized and empowered to
execute and deliver Guaranty Agreements as contemplated in Section 7.02
hereof.
ARTICLE VIII
GENERAL
Section 8.01. Removal and Replacement of General Partner.
(a) The General Partner may be removed and replaced at any time
upon the Approval of the Partners by sending the General Partner a written
notice of such removal. In the event of the removal of the General
Partner, a successor General Partner ("Successor General Partner") shall be
selected by Approval of the Partners. The Limited Partners, by Approval of
the Partners, shall have the right to transfer a portion of their interests
to such Successor General Partner and such interest shall be converted to
that of a general partner. The removal will not be effective until the
Successor General Partner has been admitted to the Partnership as a General
Partner, such admission to be Approved by the Partners. After the
admission of the Successor General Partner, the Successor General Partner
shall have all the rights, powers, and obligations of a General Partner
under this Agreement and all references in this Agreement to the "General
Partner" shall refer to the Successor General Partner appointed in this
Section 8.01. Third parties shall be conclusively deemed entitled to rely
upon the representation of Group that Group is the General Partner unless
such third parties have actual notice of its replacement.
(b) Following the replacement of the General Partner, the Limited
Partners may, as is Approved by the Partners, convert such Partner's
interest into a Limited Partner's interest. The Successor General Partner
shall have the authority to execute and file all documents necessary to
signify such conversion. The General Partner hereby appoints the Successor
General Partner as his or its attorney-in-fact to execute and file all
documents signifying such conversion including, without limitation, an
amendment to the Certificate of Limited Partnership.
Section 8.02. Competing Business.
(a) Except as expressly provided in Section 2.06 and this Section
8.02(b), but notwithstanding anything to the contrary contained in or
inferable from this Agreement, the Act, or any other statute or principle
of law, neither the Partners nor any of their Partner Affiliates shall be
prohibited or restricted in any way from investing in or conducting, either
directly or indirectly, and may invest in and/or conduct, either directly
or indirectly, businesses of any nature whatsoever, including the ownership
and operation of businesses or properties similar to or in the same
geographical area as those held by the Partnership. Any investment in or
conduct of any such businesses by a Partner or any Partner Affiliate shall
not give rise to any claim for an accounting by the other Partners or the
Partnership or any right to claim any interest therein or the profits
therefrom.
(b) No Partner nor any Partner Affiliate shall acquire, hold or
dispose of any Securities from any issuer of Securities held by the
Partnership other than through or on behalf of the Partnership. In the
event that any Partner or Partner Affiliate acquires, holds or disposes of
any such Securities in contravention of Section 2.06 and this Section
8.02(b), such Partner or Partner Affiliate shall be deemed to have
contributed such Securities to the Partnership in exchange for a Limited
Partner's interest herein, together with all rights appurtenant to such
interest under this Agreement. Any Partner or Partner Affiliate violating
Section 2.06 and this Section 8.02(b) hereby appoints the General Partner
as his or its agent and attorney-in-fact for purposes of making, executing
and filing any and all documents necessary to signify the contributions to
Partnership provided herein. Any Partner who is an agent for any Partner
Affiliate who has violated, now or in the future, Section 2.06 and this
Section 8.02(b) is deemed to consent, on behalf of his or its principal, to
the provisions of this Section 8.02(b).
Section 8.03. LIMITED PARTNER REPRESENTATIONS. NOTWITHSTANDING
ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, EACH LIMITED PARTNER
HEREBY REPRESENTS AND WARRANTS TO THE PARTNERSHIP, THE GENERAL PARTNER, AND
TO EACH OFFICER, DIRECTOR, SHAREHOLDER, CONTROLLING PERSON, AND AGENT OF
THE GENERAL PARTNER THAT: (a) THE INTEREST IN THE PARTNERSHIP OF SUCH
LIMITED PARTNER IS ACQUIRED FOR INVESTMENT PURPOSES ONLY FOR HIS OR ITS OWN
ACCOUNT AND NOT WITH A VIEW TO OR IN CONNECTION WITH ANY DISTRIBUTION,
REOFFER, RESALE, OR OTHER DISPOSITION NOT IN COMPLIANCE WITH THE SECURITIES
ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER (THE
"1933 ACT") AND APPLICABLE STATE SECURITIES LAWS; (b) SUCH LIMITED PARTNER,
ALONE OR TOGETHER WITH HIS OR ITS REPRESENTATIVES, POSSESSES SUCH
EXPERTISE, KNOWLEDGE, AND SOPHISTICATION IN FINANCIAL AND BUSINESS MATTERS
GENERALLY, AND IN THE TYPE OF TRANSACTIONS IN WHICH THE PARTNERSHIP
PROPOSES TO ENGAGE IN PARTICULAR, THAT HE OR IT IS CAPABLE OF EVALUATING
THE MERITS AND ECONOMIC RISKS OF ACQUIRING AND HOLDING HIS OR ITS
PARTNERSHIP INTEREST, AND THAT HE OR IT IS ABLE TO BEAR ALL SUCH ECONOMIC
RISKS NOW AND IN THE FUTURE; (c) SUCH LIMITED PARTNER HAS HAD ACCESS TO ALL
OF THE INFORMATION WITH RESPECT TO THE INTEREST ACQUIRED BY HIM OR IT UNDER
THIS AGREEMENT THAT HE OR IT DEEMS NECESSARY TO MAKE A COMPLETE EVALUATION
THEREOF AND HAS HAD THE OPPORTUNITY TO QUESTION THE GENERAL PARTNER
CONCERNING SUCH INTEREST; (d) SUCH LIMITED PARTNER'S DECISION TO ACQUIRE
HIS OR ITS INTEREST FOR INVESTMENT HAS BEEN BASED SOLELY UPON THE
EVALUATION MADE BY HIM OR IT; (e) SUCH LIMITED PARTNER IS AWARE THAT HE OR
IT MUST BEAR THE ECONOMIC RISK OF HIS OR ITS INVESTMENT IN THE PARTNERSHIP
FOR AN INDEFINITE PERIOD OF TIME BECAUSE INTERESTS IN THE PARTNERSHIP HAVE
NOT BEEN REGISTERED UNDER THE 1933 ACT OR UNDER THE SECURITIES LAWS OF ANY
STATES, AND, THEREFORE, CANNOT BE SOLD UNLESS SUCH INTERESTS ARE
SUBSEQUENTLY REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE; (f) SUCH
LIMITED PARTNER IS AWARE THAT ONLY THE PARTNERSHIP CAN TAKE ACTION TO
REGISTER SUCH INTEREST IN THE PARTNERSHIP AND THE PARTNERSHIP IS UNDER NO
SUCH OBLIGATION AND DOES NOT PROPOSE TO ATTEMPT TO DO SO; AND (g) SUCH
LIMITED PARTNER IS AWARE THAT THIS AGREEMENT PROVIDES RESTRICTIONS ON THE
ABILITY OF A LIMITED PARTNER TO SELL, TRANSFER, ASSIGN, MORTGAGE,
HYPOTHECATE, OR OTHERWISE ENCUMBER HIS OR ITS INTEREST IN THE PARTNERSHIP.
Section 8.04. Notice.
(a) All notices, demands, or requests provided for or permitted
to be given pursuant to this Agreement must be in writing.
(b) All notices, demands, and requests to be sent to a Partner,
any Distributee(s) (or their Agent) of the interest of a Partner, or any
Substituted Partner pursuant to this Agreement shall be deemed to have been
properly given or served if: (i) personally delivered, (ii) deposited
prepaid for next day delivery by Federal Express, or other similar
overnight courier services, addressed to such Partner, (iii) deposited in
the United States mail, addressed to such Partner, prepaid and registered
or certified with return receipt requested, or (iv) transmitted via
telecopier or other similar device to the attention of such Partner, all at
the address or telecopy number for such Partner set forth on such Partner's
signature page attached hereto (as may be changed in accordance with
subsection (d) below).
(c) All notices, demands, and requests so given shall be deemed
received: (i) when personally delivered, (ii) twenty-four (24) hours after
being deposited for next day delivery with an overnight courier, (iii)
forty-eight (48) hours after being deposited in the United States mail, or
(iv) twelve (12) hours after being telecopied or otherwise transmitted and
receipt has been confirmed.
(d) The Partners, any Substituted Partners, and their respective
Distributee(s)(or their Agent) shall have the right from time to time, and
at any time during the term of this Agreement, to change their respective
addresses and each shall have the right to specify as his or its address
any other address within the United States of America by giving to the
other parties at least thirty (30) days written notice thereof, in the
manner prescribed in Section 8.04(b); provided, however, that to be
effective, any such notice must be actually received (as evidenced by a
return receipt).
(e) All distributions to any Partner shall be made at the address
to which notices are to be sent unless otherwise specified in writing by
such Partner.
Section 8.05. Amendments. Amendments and supplements may be made to
or restatements made of this Agreement or the Certificate of Limited
Partnership (or any exhibits or schedules attached to any of them), from
time to time by the General Partner, without the consent of any of the
other Partners, to change the name of the Partnership pursuant to Section
1.02 hereof, to admit Substituted Partners, to reflect the removal and
replacement of the General Partner, to reflect adjustments to the
Percentage Interests of the Partners in accordance with this Agreement, to
reflect other transfers, assignments, admissions, withdrawals, conversions,
or removals authorized by this Agreement, or to effect any non-material
amendments to this Agreement or the Certificate of Limited Partnership.
All other amendments to this Agreement and the Certificate of Limited
Partnership shall require the Approval of the Partners.
Section 8.06. Powers of Attorney. Each Limited Partner hereby
constitutes and appoints the General Partner, with full power of
substitution, as his or its true and lawful attorney-in-fact and empowers
and authorizes such attorney, in the name, place, and stead of such Limited
Partner, to make, execute, sign, swear to, acknowledge, and file in all
necessary or appropriate places all documents (and all amendments or
supplements to or restatements of such documents necessitated by valid
amendments to or actions permitted under this Agreement) relating to the
Partnership and its activities, including, without limitation: (a) any
amendments to this Agreement approved as provided herein, (b) the
Certificate of Limited Partnership and any amendments thereto, under the
laws of the State of Texas or in any other state or jurisdiction in which
such filing is deemed advisable by the General Partner, (c) any
applications, forms, certificates, reports, or other documents, or
amendments thereto which may be requested or required by any federal,
state, or local governmental agency, securities exchange, securities
association, self-regulatory organization, or similar institution and which
are deemed necessary or advisable by the General Partner, (d) any other
instrument which may be required to be filed or recorded in any state or
county or by any governmental agency, or which the General Partner deems
advisable to file or record, including, without limitation, certificates of
assumed name and documents to qualify foreign limited partnerships in other
jurisdictions, (e) any documents which may be required to effect the
continuation of the Partnership, the admission of New Partners, Substituted
Partners, or Distributees, the withdrawal of any Partner, the purchase of
the interest in the Partnership of any ex-spouse of a Partner, or the
dissolution and termination of the Partnership, (f) any and all reports,
schedules, certificates, forms and other documents, including, but not
limited to, Schedules 13D and 13F, Forms 3 and 4, and any other such forms
as may be required to be filed by the Partnership under the Securities
Exchange Act of 1934, Federal Reserve U-1s, notes, drafts, credit or loan
agreements, financing statements, security agreements, bank resolutions,
and any and all other documents and instruments as may be necessary or
desirable in the sole discretion of the attorney so acting, all in carrying
out the purposes of the Partnership, (g) making certain elections contained
in the Code or state law governing taxation of limited partnerships, and
(h) performing any and all other ministerial duties or functions necessary
for the conduct of the business of the Partnership. Each Limited Partner
hereby ratifies, confirms, and adopts as his own, all actions that may be
taken by such attorney-in-fact pursuant to this Section 8.06. Each Limited
Partner acknowledges that this Agreement permits certain amendments to be
made and certain other actions to be taken or omitted to be taken by less
than all of the Partners if approved in accordance with the provisions
hereof. By their execution hereof, each Limited Partner also grants the
General Partner a power of attorney to execute any and all documents
necessary to reflect any action that is approved in accordance with the
provisions hereof. This power of attorney is coupled with an interest and
shall continue notwithstanding the subsequent incapacity or death of the
Limited Partner. Each Limited Partner shall execute and deliver to the
General Partner an executed and appropriately notarized power of attorney
in such form consistent with the provisions of this Section 8.06 as the
General Partner may request.
Section 8.07. GOVERNING LAWS AND VENUE. THIS AGREEMENT IS MADE IN
FORT WORTH, TARRANT COUNTY, TEXAS, AND THE RIGHTS AND OBLIGATIONS OF THE
PARTNERS HEREUNDER SHALL BE INTERPRETED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. ALL MATTERS LITIGATED BY,
AMONG, OR BETWEEN ANY OF THE PARTNERS THAT INVOLVE THIS AGREEMENT, THE
RELATIONSHIP OF THE PARTNERS, OR ANY RELATED DOCUMENTS OR MATTERS HEREUNDER
SHALL BE BROUGHT ONLY IN FORT WORTH, TARRANT COUNTY, TEXAS.
Section 8.08. Rule of Construction. The general rule of construction
for interpreting a contract, which provides that the provisions of a
contract should be construed against the party preparing the contract, is
waived by the parties. Each party acknowledges that he or it was
represented by separate legal counsel in this matter who participated in
the preparation of this Agreement or he or it had the opportunity to retain
counsel to participate in the preparation of this Agreement but chose not
to do so.
Section 8.09. Entire Agreement. This Agreement, including all
exhibits to this Agreement and, if any, exhibits to such exhibits, contains
the entire agreement among the parties relative to the matters contained in
this Agreement.
Section 8.10. Waiver. No consent or waiver, express or implied, by
any Partner to or for any breach or default by any other Partner in the
performance by such other Partner of his or its obligations under this
Agreement shall be deemed or construed to be a consent or waiver to or of
any other breach or default in the performance by such other Partner of the
same or any other obligations of such other Partner under this Agreement.
Failure on the part of any Partner to complain of any act or failure to act
of any of the other Partners or to declare any of the other Partners in
default, regardless of how long such failure continues, shall not
constitute a waiver by such Partner of his or its rights hereunder.
Section 8.11. Severability. If any provision of this Agreement or
the application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provisions to other persons or circumstances shall not
be affected thereby, and the intent of this Agreement shall be enforced to
the greatest extent permitted by law.
Section 8.12. Binding Agreement. Subject to the restrictions on
transfers and encumbrances set forth in this Agreement, this Agreement
shall inure to the benefit of and be binding upon the undersigned Partners
and their respective legal representatives, successors, and assigns.
Whenever, in this Agreement, a reference to any party or Partner is made,
such reference shall be deemed to include a reference to the legal
representatives, successors, and assigns of such party or Partner.
Section 8.13. Tense and Gender. Unless the context clearly indicates
otherwise, the singular shall include the plural and vice versa. Whenever
the masculine, feminine, or neuter gender is used inappropriately in this
Agreement, this Agreement shall be read as if the appropriate gender was
used.
Section 8.14. Captions. Captions are included solely for convenience
of reference and if there is any conflict between captions and the text of
this Agreement, the text shall control.
Section 8.15. Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original for all
purposes and all of which when taken together shall constitute a single
counterpart instrument. Executed signature pages to any counterpart
instrument may be detached and affixed to a single counterpart, which
single counterpart with multiple executed signature pages affixed thereto
constitutes the original counterpart instrument. All of these counterpart
pages shall be read as though one and they shall have the same force and
effect as if all of the parties had executed a single signature page.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
GENERAL PARTNER:
GROUP 31, INC., a Texas corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ By: ____________________________________
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Name:
___________________________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Tax ID Number: ▇▇-▇▇▇▇▇▇▇
Initial Capital Contribution: $90,000.00
Percentage Interest: 1.0000%
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $414,562.50
Percentage Interest: 4.60625%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By: /s/ Group 31, Inc.
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇, Warehouse
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $90,000.00
Percentage Interest: 1.0000%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC., a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ _/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $131,625.00
Percentage Interest: 1.46250%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ___________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $351,000.00
Percentage Interest: 3.90000%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ______________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $131,625.00
Percentage Interest: 1.46250%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ___________________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $329,062.50
Percentage Interest: 3.65625%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ___________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $438,750.00
Percentage Interest: 4.87500%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ____________________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ I. D. ▇▇▇▇▇▇, III
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $87,750.00
Percentage Interest: 0.97500%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ _________________________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $87,750.00
Percentage Interest: 0.97500%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ _________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $43,875.00
Percentage Interest: 0.48750%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ __________________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $21,937.50
Percentage Interest: 0.24375%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ _______________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $21,937.50
Percentage Interest: 0.24375%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ____________________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $21,937.50
Percentage Interest: 0.24375%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ FAMILY TRUST U/D/T dated
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ January 31, 1996
Phone - (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇ By:
Social Security No. ###-##-#### ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
Initial Capital Contribution $87,750.00
Percentage Interest: 0.97500%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ____________________________
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Social Security No. ###-##-####
Initial Capital Contribution: $4,320,000.00
Percentage Interest: 48.00000%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ CAPITAL PARTNERSHIP, a Texas partnership
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ By: ▇▇▇▇▇▇▇▇ ▇▇▇ Bass 1980 Trust,
Phone - (▇▇▇) ▇▇▇-▇▇▇▇ managing partner
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Tax ID No. ▇▇-▇▇▇▇▇▇▇
By: Panther City Investment Co., Trustee
Initial Capital Contribution:
$1,080,000.00
By:
Title:
Percentage Interest: 12.00000%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
This Limited Partnership Agreement of Yellow Rose Partners, L.P. has
been executed to be effective as of the Effective Date.
LIMITED PARTNER:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ - RELIANCE 1996 PARTNERS, a
32nd Floor Delaware partnership
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ By: Oak Hill Partners, Inc., Managing
Partner
Telecopy - (▇▇▇) ▇▇▇-▇▇▇▇
Tax ID No. By:
Title:
Initial Capital Contribution: $1,250,437.50
Percentage Interest: 13.89375%
The above-named Limited Partner hereby is admitted to the Partnership.
GENERAL PARTNER
GROUP 31, INC.,
a Texas corporation
By:
Title:
FIRST AMENDMENT
TO THE
LIMITED PARTNERSHIP AGREEMENT
OF
YELLOW ROSE PARTNERS, L.P.
This First Amendment (the "Amendment") to the Limited Partnership
Agreement of Yellow Rose Partners, L.P. is made and entered into to be
effective as of the 4th day of March, 1997 (the "Effective Date"), by Group
31, Inc., a Texas corporation ("Group"), as the general partner. Unless
otherwise defined herein, all capitalized terms shall have the meaning
given terms in the Agreement (as defined below).
RECITALS:
A. Yellow Rose Partners, L.P. (the "Partnership") was formed on
January 24, 1997, pursuant to the Limited Partnership Agreement of Yellow
Rose Partners, L.P. dated as of January 24, 1997 (the "Agreement"). A
certificate of limited partnership for the Partnership was filed in the
office of the Secretary of State of the State of Texas on January 24, 1997,
and remains in full force and effect.
B. In accordance with Section 1.02 of the Agreement, Group as
General Partner of the Partnership desires to change the name of the
Partnership to Reliance Partners, L.P.
Now, therefore, the undersigned hereby approves the following:
1. Section 1.02 of the Agreement is hereby deleted in its entirety
and replaced by the following:
"Section 1.02. Name. The name of the Partnership shall be Reliance
Partners, L.P. All business and affairs of the Partnership shall be
conducted solely under, and all Partnership Assets (as that term is
defined in Section 1.04) shall be held solely in, such name unless
otherwise determined by the General Partner."
2. The General Partner shall execute an amendment to the Certificate
of Limited Partnership evidencing the change of the Partnership's name and
file such amendment with the office of the Secretary of State of the State
of Texas.
3. Except as amended hereby, the Agreement shall remain in full
force and effect, and each of the undersigned hereby restate and reaffirm
all of the terms and provisions of the Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
This First Amendment to the Limited Partnership Agreement of Yellow
Rose Partners, L.P. has been executed to be effective as of the Effective
Date.
GENERAL PARTNER:
GROUP 31, INC., a Texas corporation
By: _____________________________________________
Name: __________________________________________
SECOND AMENDMENT
TO THE
LIMITED PARTNERSHIP AGREEMENT
OF
RELIANCE PARTNERS, L.P.
This Second Amendment (the "Amendment") to the Limited Partnership
Agreement of Reliance Partners, L.P. is made and entered into to be
effective as of the 24th day of April, 1997 (the "Effective Date"), by
Group 31, Inc., a Texas corporation ("Group"), as the general partner.
Unless otherwise defined herein, all capitalized terms shall have the
meaning given terms in the Agreement (as defined below).
RECITALS:
A. Yellow Rose Partners, L.P. (the "Partnership") was formed on
January 24, 1997, pursuant to the Limited Partnership Agreement of Yellow
Rose Partners, L.P. dated as of January 24, 1997 (the "Agreement"). A
certificate of limited partnership for the Partnership was filed in the
office of the Secretary of State of the State of Texas on January 24, 1997,
and as amended remains in full force and effect. The name of the
Partnership was subsequently amended to Reliance Partners, L.P. pursuant to
the First Amendment to the Limited Partnership Agreement dated March 4,
1997.
B. In accordance with Section 1.02 of the Agreement, Group as
General Partner of the Partnership desires to change the name of the
Partnership to FW Physicians Investors, L.P.
Now, therefore, the undersigned hereby approves the following:
1. Section 1.02 of the Agreement is hereby deleted in its entirety
and replaced by the following:
"Section 1.02. Name. The name of the Partnership shall be FW
Physicians Investors, L.P. All business and affairs of the
Partnership shall be conducted solely under, and all Partnership Assets
(as that term is defined in Section 1.04) shall be held solely in, such
name unless otherwise determined by the General Partner."
2. The General Partner shall execute an amendment to the Certificate
of Limited Partnership evidencing the change of the Partnership's name and
file such amendment with the office of the Secretary of State of the State
of Texas.
3. Except as amended hereby, the Agreement shall remain in full
force and effect, and each of the undersigned hereby restate and reaffirm
all of the terms and provisions of the Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
This Second Amendment to the Limited Partnership Agreement of Reliance
Partners, L.P. has been executed to be effective as of the Effective Date.
GENERAL PARTNER:
GROUP 31, INC., a Texas corporation
By: _____________________________________________
Name: __________________________________________