Exhibit 6
ENDURANCE PARTNERS, L.P.*
ENDURANCE PARTNERS (Q.P.), L.P.
A Texas Limited Partnership
Limited Partnership Agreement
October 15, 2001
______________________________________________________________________________
*This is a form of limited partnership agreement which is issued for both
Endurance Partners, L.P. and Endurance Partners (Q.P.), L.P. Differences
between the two agreements are noted in the text in italics.
NOTICE
NEITHER ENDURANCE PARTNERS, L.P., [ENDURANCE PARTNERS
(Q.P.), L.P.] NOR THE LIMITED PARTNER INTERESTS THEREIN HAVE BEEN
OR WILL BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR THE
SECURITIES LAWS OF ANY OF THE STATES OF THE UNITED STATES. THE
OFFERING OF SUCH LIMITED PARTNER INTERESTS IS BEING MADE IN
RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OF 1933, AS AMENDED, FOR OFFERS AND SALES OF
SECURITIES WHICH DO NOT INVOLVE ANY PUBLIC OFFERING, AND
ANALOGOUS EXEMPTIONS UNDER STATE SECURITIES LAWS.
THE DELIVERY OF THIS LIMITED PARTNERSHIP AGREEMENT SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY NOR SHALL THERE BE ANY OFFER, SOLICITATION OR SALE OF
INTERESTS IN ENDURANCE PARTNERS, L.P. [ENDURANCE PARTNERS (Q.P.),
L.P.] IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR
SALE IS NOT AUTHORIZED OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER, SOLICITATION OR SALE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE, MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS AND CONDITIONS SET
FORTH IN THIS LIMITED PARTNERSHIP AGREEMENT.
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TABLE OF CONTENTS
Page
Article I Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 1
Article II Organization. . . . . . . . . . . . . . . . . . . . . . . . 9
2.1 Formation of Limited Partnership . . . . . . . . . . . . . . 9
2.2 Name of Partnership. . . . . . . . . . . . . . . . . . . . . 9
2.3 Registered Office and Agent. . . . . . . . . . . . . . . . . 10
2.4 Term of Partnership. . . . . . . . . . . . . . . . . . . . . 10
2.5 Objectives of Partnership. . . . . . . . . . . . . . . . . . 10
2.6 Actions by Partnership . . . . . . . . . . . . . . . . . . . 10
2.7 Reliance by Third Parties. . . . . . . . . . . . . . . . . . 10
2.8 Liability of Partners. . . . . . . . . . . . . . . . . . . . 10
Article III Capital. . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Contributions to Capital . . . . . . . . . . . . . . . . . . 11
3.2 Rights of Partners in Capital. . . . . . . . . . . . . . . . 11
3.3 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . 12
3.4 Operation of the Regular Account and Regular Sub-accounts. . 12
3.5 Special Situation Investment Sub-accounts. . . . . . . . . . 12
3.6 Allocation of Management Fees, Withholding Taxes and Certain
Other Expenditures . . . . . . . . . . . . . . . . . . . . . 14
3.7 Reserves; Adjustments for Certain Future Events. . . . . . . 14
3.8 Performance Allocation . . . . . . . . . . . . . . . . . . . 15
3.9 Allocation to Avoid Capital Account Deficits . . . . . . . . 15
3.10 Allocations for Income Tax Purposes. . . . . . . . . . . . . 16
3.11 Qualified Income Offset. . . . . . . . . . . . . . . . . . . 17
3.12 Gross Income Allocation. . . . . . . . . . . . . . . . . . . 17
3.13 Individual Partners' Tax Treatment . . . . . . . . . . . . . 18
3.14 Distributions. . . . . . . . . . . . . . . . . . . . . . . . 18
Article IV Management. . . . . . . . . . . . . . . . . . . . . . . . . 18
4.1 Duties and Powers of the General Partner . . . . . . . . . . 18
4.2 Management Fees. . . . . . . . . . . . . . . . . . . . . . . 19
4.3 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.4 Rights of Limited Partners . . . . . . . . . . . . . . . . . 21
4.5 Other Activities of Partners . . . . . . . . . . . . . . . . 21
4.6 Duty of Care; Indemnification. . . . . . . . . . . . . . . . 22
4.7 Fiduciary Duties; Discretion . . . . . . . . . . . . . . . . 24
4.8 Investment Committee . . . . . . . . . . . . . . . . . . . . 25
Article V Admissions, Transfers and Withdrawals. . . . . . . . . . . . 26
5.1 Admission of Limited Partners. . . . . . . . . . . . . . . . 26
5.2 Admission of Additional General Partners . . . . . . . . . . 26
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Page
5.3 Transfer of Interests of Limited Partners. . . . . . . . . . 26
5.4 Transfer of Interest of the General Partner. . . . . . . . . 29
5.5 Withdrawal of Interests of Partners. . . . . . . . . . . . . 29
5.6 Withdrawal of Organizational Limited Partner . . . . . . . . 32
Article VI Dissolution and Liquidation . . . . . . . . . . . . . . 33
6.1 Dissolution of Partnership . . . . . . . . . . . . . . . . . 33
6.2 Liquidation of Assets. . . . . . . . . . . . . . . . . . . . 34
Article VII Accounting and Valuations; Books and Records. . . . . . 35
7.1 Accounting and Reports . . . . . . . . . . . . . . . . . . . 35
7.2 Valuation of Partnership Assets and Interests. . . . . . . . 35
7.3 Determinations by the General Partner. . . . . . . . . . . . 37
7.4 Books and Records. . . . . . . . . . . . . . . . . . . . . . 37
7.5 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 38
Article VIII General Provisions. . . . . . . . . . . . . . . . . . . 39
8.1 Amendment of Partnership Agreement . . . . . . . . . . . . . 39
8.2 Special Power of Attorney. . . . . . . . . . . . . . . . . . 41
8.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.4 Agreement Binding Upon Successors and Assigns. . . . . . . . 42
8.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 42
8.6 Not for Benefit of Creditors . . . . . . . . . . . . . . . . 43
8.7 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.8 Merger and Consolidation; Division . . . . . . . . . . . . . 43
8.9 Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 43
8.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 44
iii
THIS LIMITED PARTNERSHIP AGREEMENT of Endurance Partners,
L.P. [Endurance Partners (Q.P.), L.P.] is made as of this 15th
day of October, 2001 by and among Endurance General Partners,
L.P., as General Partner, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Organizational
Limited Partner, and those Persons who are hereafter admitted as
additional limited partners in accordance with this Agreement.
_____________
Article I
Definitions
_____________
For purposes of this Agreement:
"Act" means the Texas Revised Limited Partnership Act, as
amended from time to time.
"Affiliate" means with respect to any Person, a Person that,
directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such
Person, and the term "Affiliated" has a correlative meaning. The
term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
Securities, by contract or otherwise.
"Agreement" means this Limited Partnership Agreement, as
amended from time to time.
"Applicable Rate" means, with respect to each Partner, a
daily rate equal to 0.06/365.
"Authorized Representative" has the meaning assigned to such
term in Section 7.5 hereof.
"Base Amount" means an amount determined daily with respect
to each Limited Partner for each day during each Performance
Period that initially is equal to the balance of such Limited
Partner's Capital Account as of the commencement of the
Performance Period and that is adjusted as follows:
(1) the Base Amount is increased by the amount of any
contribution by such Limited Partner to his
Capital Account effective as of the date credited
thereto; and
(2) the Base Amount is decreased by the amount of any
withdrawal by or distribution to the Limited
Partner effective as of the date charged thereto.
"Business Day" means any day on which banks are open for
business in New York, New York.
"Capital Account" means with respect to each Partner the
capital account established and maintained on behalf of such
Partner as described in Section 3.3.
"Carryforward Account" means a memorandum account to be
recorded in the books and records of the Partnership with respect
to each Limited Partner that has an initial balance of zero and
that is adjusted as follows:
(1) As of the first day after the close of each
Performance Period for such Limited Partner, the
balance of the Carryforward Account (a) is
increased by the amount, if any, of such Limited
Partner's Negative Performance Change for such
Performance Period and (b) is reduced (but not
below zero) by the amount, if any, of such Limited
Partner's Positive Performance Change for such
Performance Period.
(2) As of the close of each Performance Period for
such Limited Partner, any positive balance of the
Carryforward Account is further adjusted if the
Capital Account balance of such Limited Partner
has been reduced during such Performance Period as
a result of a distribution or a partial
withdrawal, by reducing such positive balance (but
not below zero) by an amount determined by
multiplying (a) such positive balance by (b) a
fraction, of which (i) the numerator is equal to
the amount so distributed or withdrawn, and
(ii) the denominator is equal to the balance of
such Limited Partner's Capital Account immediately
before giving effect to such distribution or
withdrawal.
"Certificate" means the certificate of limited partnership
referred to in Section 2.1.
"Code" means the U.S. Internal Revenue Code of 1986, as
amended and as hereafter amended, or any successor law.
"Commencement Date" means the first date on or as of which a
Limited Partner other than the Organizational Limited Partner is
admitted to the Partnership.
"Company Act" means the Investment Company Act of 1940, as
amended.
"Covered Person" means the General Partner; each member,
shareholder, partner, manager, director, officer, employee or
agent of, or any Person who controls, the General Partner; each
of the respective Affiliates of the foregoing; each of the
respective executors, heirs, assigns, successors or other legal
representatives of the foregoing; and each member of the
Investment Committee and his or her executors, heirs, assigns,
successors or other legal representatives.
"ERISA" means the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
2
"Fiscal Period" means each period that starts on the
Commencement Date (in the case of the initial Fiscal Period) and
thereafter on the day immediately following the last day of the
preceding Fiscal Period, and that ends on the earliest of the
following dates:
(1) the last day of any Fiscal Quarter; or
(2) any date as of which any withdrawal or
distribution of capital is made by or to any
Partner or as of which this Agreement provides for
any amount to be credited to or debited against
the Capital Account of any Partner, other than a
withdrawal or distribution by or to, or an
allocation to the Capital Accounts of, all
Partners that does not result in any change of any
Partner's Partnership Percentage; or
(3) the date that immediately precedes any day as of
which a contribution to capital is accepted by the
General Partner from any new or existing Partner;
or
(4) the date of any Recognition Event with respect to
a Special Situation Investment; or
(5) any other date that the General Partner selects in
its sole discretion.
"Fiscal Quarter" means any calendar quarter, unless the
General Partner elects another fiscal quarter.
"Fiscal Year" means the period commencing on the
Commencement Date and ending on December 31, 2001, and thereafter
each period commencing on January 1 of each year and ending on
December 31 of such year, unless the General Partner elects
another fiscal year, provided that any such other fiscal year is
permissible for federal income tax purposes.
"General Partner" means Endurance General Partners, L.P., a
Texas limited partnership, any successor thereto, and any Persons
hereafter admitted as additional general partners, each in its
capacity as a general partner of the Partnership.
"Interest" means the entire ownership interest of a Partner
in the Partnership at the relevant time, including the right of
such Partner to any and all benefits to which a Partner may be
entitled as provided in this Agreement, together with the
obligations of such Partner to comply with all the terms and
provisions of this Agreement.
"Investment Committee" has the meaning assigned to such term
in Section 4.8 hereof.
"Limited Partner" means any Person admitted to the
Partnership as a Limited Partner, until the entire Limited
Partner Interest of such Person has been withdrawn pursuant to
Section 5.5 or a substitute Limited Partner or Partners are
admitted with respect to such Person's entire Limited Partner
Interest. Except as the context otherwise requires in relation
to
3
Management Fees and Performance Allocations, the term includes
any Special Limited Partner. For all purposes of the Act, the
Limited Partners constitute a single class or group of limited
partners.
"Managed Account" means any assets managed by the General
Partner or any of its Affiliates, whether for its own account or
for the account of any third party, that are invested or
available for investment in investment or trading activities,
whether or not of the specific type being conducted by the
Partnership.
"Management Fee" means an amount calculated at an annual
rate of 1.0% of the Capital Account balance of each Limited
Partner, which amount accrues from the Commencement Date and is
payable quarterly in arrears on the last day of the current
Fiscal Quarter, based on the Capital Account balances of Limited
Partners as of the end of such Fiscal Quarter. The General
Partner has the discretion to reduce or eliminate the Management
Fee with respect to any Special Limited Partner.
"Organizational Limited Partner" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in
his capacity as organizational limited partner.
"Partner" means the General Partner or any of the Limited
Partners, except as otherwise expressly provided herein, and
"Partners" means the General Partner and all of the Limited
Partners.
"Partnership" means the limited partnership formed pursuant
to this Agreement.
"Partnership Percentage" means a percentage established for
each Partner on the Partnership's books as of the first day of
each Fiscal Period representing such Partner's share of
allocations attributable to transactions involving the Regular
Account for such Fiscal Period. The Partnership Percentage of a
Partner for a Fiscal Period is determined by dividing the amount
of the Partner's Regular Sub-account as of the beginning of the
Fiscal Period (after adjustment for all net contributions to the
capital of the Partnership and Management Fees that are effective
as of such date) by the Regular Account Net Assets as of the
beginning of the Fiscal Period (after adjustment for all net
contributions to the capital of the Partnership and Management
Fees that are effective as of such date). The sum of the
Partnership Percentages of all Partners for each Fiscal Period
must equal one hundred percent (100%).
"Performance Allocation" means, with respect to any Limited
Partner, twenty percent (20%) of the amount, determined as of the
close of each Performance Period with respect to each Limited
Partner, by which such Limited Partner's Positive Performance
Change for such Performance Period, if any, exceeds (1) the
Preferred Return Amount with respect to such Limited Partner for
such Performance Period plus (2) any positive balance in such
Limited Partner's Carryforward Account as of the most recent
prior date as of which any adjustment has been made thereto. The
General Partner shall have the discretion to reduce or eliminate
the Performance Allocation with respect to any Special Limited
Partner.
4
"Performance Change" means, with respect to each Limited
Partner for each Performance Period, the difference between:
(1) the sum of (a) the balance of such Limited
Partner's Capital Account as of the close of the
Performance Period (after giving effect to all
allocations to be made to such Limited Partner's
Capital Account as of such date other than any
Performance Allocation to be debited against such
Limited Partner's Capital Account), plus (b) any
debits to such Limited Partner's Capital Account
during the Performance Period to reflect any
actual or deemed distributions or withdrawals with
respect to such Limited Partner's Interest, plus
(c) any debits to such Limited Partner's Capital
Account during the Performance Period to reflect
any items allocable to such Limited Partner's
Capital Account pursuant to Section 3.6(b) or
3.6(c) hereof; and
(2) the sum of (a) the balance of such Limited
Partner's Capital Account as of the commencement
of the Performance Period, plus (b) any credits to
such Limited Partner's Capital Account during the
Performance Period to reflect any contributions by
such Limited Partner to the capital of the
Partnership.
If the amount specified in clause (1) exceeds the amount
specified in clause (2) such difference is a "Positive
Performance Change," and if the amount specified in clause (2)
exceeds the amount specified in clause (1), such difference is a
"Negative Performance Change."
"Performance Period" means, with respect to each Limited
Partner, the period commencing as of the date of admission of
such Limited Partner to the Partnership (in the case of such
Limited Partner's initial Performance Period) and thereafter each
period commencing as of the day following the last day of the
preceding Performance Period with respect to such Limited
Partner, and ending as of the close of business on the first to
occur of the following after the relevant commencement date:
(1) the last day of a Fiscal Year;
(2) the withdrawal by such Limited Partner of his
entire Interest;
(3) the admission as a substitute Limited Partner of a
Person to whom the entire Interest of such Limited
Partner has been Transferred; or
(4) the final distribution to such Limited Partner
following the dissolution of the Partnership.
"Person" means any individual, partnership, corporation,
limited liability company, trust, or other entity.
5
"Positive Basis" means, with respect to any Partner and as
of any time of calculation, the excess of the amount that such
Partner is entitled to receive upon withdrawal from or
liquidation of the Partnership over such Partner's "adjusted tax
basis" in its Interest at such time (determined without regard to
any adjustments made to such adjusted tax basis by reason of any
transfer or assignment of such Interest, including by reason of
death).
"Positive Basis Partner" means any Partner who withdraws
from the Partnership and who has Positive Basis as of the
effective date of such withdrawal, but such Partner ceases to be
a Positive Basis Partner at such time as he has received
allocations pursuant to Section 3.10(c) equal to such Partner's
Positive Basis as of the effective date of the withdrawal.
"Preferred Return Amount" means, with respect to each
Limited Partner for each Performance Period, the sum of the daily
amounts, determined for each day during such Performance Period,
obtained by multiplying (1) the Base Amount with respect to such
Limited Partner for such day by (2) the Applicable Rate of (6% on
an annualized basis) for such day.
"Priority Return Amount" means, with respect to each Limited
Partner for each Performance Period, the sum of the daily
amounts, determined for each day during such Performance Period,
obtained by multiplying (1) the Base Amount with respect to such
Limited Partner for such day by (2) the Applicable Rate for such
day.
"Prime Rate" means the interest rate that is publicly
announced from time to time by the Chase Manhattan Bank, N.A. as
its prime rate or, if no such interest rate is announced by the
Chase Manhattan Bank, N.A., then the prime rate shall be that
announced by another major New York City money center bank
selected by the General Partner.
"Recognition Event" means any of the following:
(1) a sale of the Special Situation Investment for
cash;
(2) an exchange of the Special Situation Investment
for Securities that are not Special Situation
Investments;
(3) an in-kind distribution of the Special Situation
Investment to Partners; or
(4) at the discretion of the General Partner, if
market quotations have become readily available
for Securities of the same class and series as the
Special Situation Investment, the occurrence of
all events necessary to permit the Partnership to
make unrestricted public resales of such Special
Situation Investment in the principal market for
which such quotations are available.
"Regular Account" means a memorandum account to be
maintained in the accounting records of the Partnership to
reflect the entitlements of all Partners to allocations and
6
distributions attributable to transactions involving all of the
Partnership's assets other than transactions involving Special
Situation Investments.
"Regular Account Net Assets" means the total value, as
determined by the General Partner in accordance with Section 7.2,
of all Securities and other assets of the Regular Account
(including net unrealized appreciation or depreciation of
Securities and accrued interest and dividends receivable net of
any withholding taxes), less an amount equal to all accrued
debts, liabilities and obligations of the Partnership (including
any reserves for contingencies accrued pursuant to Section 3.7).
Except as otherwise expressly provided herein, Regular Account
Net Assets as of the first day of any Fiscal Period is determined
on the basis of the valuation of assets conducted as of the close
of the immediately preceding Fiscal Period but after giving
effect to any capital contributions made by any Partner
subsequent to the last day of such immediately preceding Fiscal
Period, and Regular Account Net Assets as of the last day of any
Fiscal Period is determined before giving effect to any of the
following amounts payable by the Partnership that are effective
as of the date on which such determination is made:
(1) any withdrawals or distributions payable to any
Partner that are effective as of the date on which
such determination is made;
(2) any Management Fees payable as of the date on
which such determination is made; and
(3) withholding taxes, expenses of processing
withdrawals and other items payable, and any
increases or decreases in any reserves or other
amounts recorded pursuant to Section 3.7, during
the Fiscal Period ending as of the date on which
such determination is made, to the extent the
General Partner determines that, pursuant to any
provisions of this Agreement, such items are not
to be charged ratably to the Regular Sub-accounts
of all Partners on the basis of their respective
Partnership Percentages as of the commencement of
the Fiscal Period.
"Regular Sub-account" means a memorandum account to be
maintained in the accounting records of the Partnership to
reflect the entitlements of each Partner, as adjusted for each
Fiscal Period, to allocations and distributions attributable to
the Regular Account.
"Regulations" means the regulations issued under the Code or
any successor law.
"Securities" means investments, on margin or otherwise, in
securities and other financial instruments of the United States
and foreign entities, including capital stock; shares of
beneficial interest; partnership interests and similar financial
instruments; bonds, notes, debentures (whether subordinated,
convertible or otherwise); any currencies; commodities; interest
rate, currency, commodity, equity and other derivative products,
including (i) futures contracts (and options thereon) relating to
stock indices, currencies, U.S. Government securities and debt
securities of foreign governments, other financial instruments
and all other commodities, (ii)
7
swaps, options, warrants, caps, collars, floors and forward rate
agreements, (iii) spot and forward currency transactions and (iv)
agreements relating to or securing such transactions; equipment
lease certificates; equipment trust certificates; loans; accounts
and notes receivable and payable held by trade or other creditors;
trade acceptances; contract and other claims; executory contracts;
participations; open and closed-end investment companies and
other mutual funds; money market funds; obligations of the United
States or any state thereof, foreign governments and
instrumentalities of any of them; commercial paper; repurchase
agreements; certificates of deposit; banker's acceptances; trust
receipts; and other obligations and instruments or evidences of
indebtedness of whatever kind or nature; in each case, of any
Person, government or other entity whatsoever, whether or not
publicly traded or readily marketable, all without restriction of
any kind.
"Special Limited Partner" means a Limited Partner with
respect to which the General Partner has agreed to a variation or
elimination of the Management Fee, the Performance Allocation, or
both. The General Partner has the absolute discretion to
designate any Limited Partner as a Special Limited Partner and,
subject to any agreement between the General Partner and a
Special Limited Partner, to rescind any of the terms that
distinguish a Special Limited Partner from a Limited Partner.
"Special Situation Investment" means a Security held by the
Partnership that is designated by the General Partner, at any
time and in its sole discretion, as not readily marketable, until
the occurrence of a Recognition Event with respect thereto.
"Special Situation Investment Sub-accounts" means memorandum
accounts to be maintained in the accounting records of the
Partnership on a Partner-by-Partner basis with respect to each
particular Special Situation Investment to reflect the
entitlement of each Partner (other than a Partner not having any
credit balance in its Regular Sub-account at the time of the
establishment of the Special Situation Investment Sub-account) to
allocations and distributions attributable to Partnership
transactions involving such Special Situation Investment.
"Transfer" means any sale, exchange, transfer, assignment or
other disposition by a Partner of his Interest to another party,
whether voluntary or involuntary, including a transfer by
operation of law, but not including a pledge of or granting of
another form of security interest in any such Interest.
"Treasury ▇▇▇▇ Rate" means, with respect to any calendar
month, a rate of interest, determined and adjusted monthly by the
General Partner as of the fifth Business Day of each month, equal
to the annual coupon equivalent yield on 13-week U.S. Treasury
bills resulting from the most recent auction of such instruments
prior to the monthly determination date.
8
_____________
Article II
Organization
_____________
2.1 Formation of Limited Partnership
(a) The parties hereto hereby agree to form a limited
partnership under and pursuant to the Act.
(b) The General Partner must execute, acknowledge and file with
the Secretary of State of the State of Texas a Certificate, any
amendments thereto as may be required by the Act and any other
instruments, documents and certificates which, in the opinion of
the Partnership's legal counsel, may from time to time be
required by the laws of the United States of America, the State
of Texas or any other jurisdiction in which the Partnership
determines to do business, or any political subdivision or agency
thereof, or which such legal counsel may deem necessary or
appropriate to effectuate, implement and continue the valid and
subsisting existence and business of the Partnership. The
General Partner must cause any required amendment to the
Certificate to be filed promptly following the event requiring
said amendment. All amendments may be signed by any one or more
of the General Partners (as required by the Act) and may be
signed either personally or by an attorney-in-fact.
(c) The parties hereto acknowledge that they intend that the
Partnership be taxed as a partnership and not as an association
taxable as a corporation for federal income tax purposes. No
election may be made to treat the Partnership as other than a
partnership for federal income tax purposes.
2.2 Name of Partnership
The name of the Partnership is Endurance Partners, L.P.
[Endurance Partners (Q.P.), L.P.] or such other name as the
General Partner may hereafter adopt upon (i) causing an amendment
to the Certificate to be filed with the Secretary of State of the
State of Texas and (ii) sending notice thereof to the Limited
Partners. The Partnership has the exclusive ownership and right
to use the Partnership name so long as the Partnership continues,
despite the withdrawal, expulsion, resignation or removal of any
Limited Partner, but upon the Partnership's termination or at
such time as Endurance General Partners, L.P. or its Affiliate
ceases to be a General Partner, the Partnership must assign the
name and the goodwill attached thereto to Endurance General
Partners, L.P. or its Affiliate without payment by the
assignee(s) of any consideration therefor.
9
2.3 Registered Office and Agent
The street address of the registered office of the
Partnership is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
and the name of its registered agent at such address is ▇▇▇▇▇ &
Partners. The General Partner may change the registered office
or registered agent of the Partnership at any time in its sole
discretion.
2.4 Term of Partnership
The term of the Partnership commences on the date on which
the Certificate is filed with the Secretary of State of the State
of Texas and continues until dissolved pursuant to Section 6.1
hereof (unless its term is extended pursuant to Section 6.1).
The legal existence of the Partnership as a separate legal entity
continues until the cancellation of the Certificate.
2.5 Objectives of Partnership
The Partnership is formed for the object and purpose of, and
the nature of the business to be conducted and promoted by the
Partnership is, engaging in any lawful act or activity for which
limited partnerships may be formed under the Act and engaging in
any and all activities necessary or incidental to the foregoing.
2.6 Actions by Partnership
The Partnership may execute, deliver and perform all
contracts, agreements and other undertakings and engage in all
activities and transactions as may in the opinion of the General
Partner be necessary or advisable to carry out its objects.
2.7 Reliance by Third Parties
Persons dealing with the Partnership are entitled to rely
conclusively upon the power and authority of the General Partner
as herein set forth.
2.8 Liability of Partners
(a) Except as provided by the Act, the General Partner has the
liabilities of a partner in a partnership without limited
partners to Persons other than the Partnership and the Limited
Partners. Except as provided herein or by the Act, the General
Partner has the liabilities of a partner in a partnership without
limited partners to the Partnership and the Limited Partners.
(b) In no event will any Limited Partner (or former Limited
Partner) be obligated to make any contribution to the Partnership
in addition to its agreed capital commitment (or other payments
provided for herein) or have any liability for the repayment or
discharge of the debts and obligations of the Partnership except
to the extent provided herein or as required by law.
10
_____________
Article III
Capital
_____________
3.1 Contributions to Capital
(a) The required initial contribution of each Limited Partner
(other than the Organizational Limited Partner) to the capital of
the Partnership is $200,000 or such lesser amount as the General
Partner, in its discretion, may permit. The General Partner, in
its sole discretion, may increase the required initial minimum
investment at any time.
(b) The Partners may make additional contributions to the
capital of the Partnership at such times and in such amounts as
the General Partner, in its sole discretion, may permit, but no
Limited Partner is obligated to make any additional contribution
to the capital of the Partnership, subject to the provisions of
Sections 3.6 and 3.7and any contrary provision of the Act.
(c) The General Partner has the right at any time to make
additional contributions to the capital of the Partnership as a
Limited Partner or General Partner and, subject to the exception
set forth in the following sentence, is required to make
additional capital contributions from time to time to the extent
necessary to maintain the balance of its Capital Account at an
amount that (i) results in the General Partner's Partnership
Percentage being not less than one percent (1%) or (ii) is equal
to $250,000, whichever is less. Except as provided above or in
the Act, the General Partner is not required or obligated to make
any additional contributions to the capital of the Partnership.
(d) Except as otherwise permitted by the General Partner in its
sole discretion, (i) initial or additional contributions to the
capital of the Partnership by each Partner are payable in cash,
and (ii) an initial contribution is payable in one installment
that is due as of the date of admission of such Person as a
Limited Partner of the Partnership.
3.2 Rights of Partners in Capital
(a) No Partner is entitled to interest on his contributions to
the capital of the Partnership.
(b) No Partner has the right to the return of any contribution
to the capital of the Partnership except (i) upon withdrawal of
such Partner pursuant to Section 5.5 or (ii) upon the dissolution
of the Partnership pursuant to Section 6.1. The
11
entitlement to any such return at such time is limited to the
value of the Capital Account of the Partner. The General Partner
is not liable for the return of any such amounts.
3.3 Capital Accounts
(a) The Partnership maintains a separate Capital Account for
each Partner. Each Partner's Capital Account reflects the
aggregate sum of the balances in such Partner's Regular Sub-
account and each Special Situation Investment Sub-account
maintained for such Partner.
(b) Each Partner's Capital Account has an initial balance equal
to the amount of any cash and the net value, as determined in
accordance with Section 7.2 hereof, of any assets constituting
such Partner's initial contribution to the capital of the
Partnership (net of any sales charges).
(c) Each Partner's Capital Account is increased by the amount of
cash and the net value, as determined in accordance with Section
7.2 hereof, of any assets constituting additional contributions
by such Partner to the capital of the Partnership and decreased
by (i) the amount of cash and the net value of any assets
withdrawn by and distributed to such Partner and (ii) such
Partner's pro rata portion of the expenses payable by the
Partnership pursuant to Section 4.3(b).
(d) Each Partner's Capital Account is adjusted in the manner
specified in this Article III to reflect changes in the value of
such Partner's Regular Sub-account and in any Special Situation
Investment Sub-accounts.
3.4 Operation of the Regular Account and Regular Sub-accounts
Except as otherwise expressly provided herein, all capital
contributions by a Partner are credited to such Partner's Regular
Sub-account, and all withdrawals by or distributions to such
Partner are debited from such Partner's Regular Sub-account to
the extent thereof. In addition, except as otherwise provided in
Sections 3.11 and 3.12, any credits or debits not specifically
required to be reflected in Special Situation Investment Sub-
accounts or accounts are reflected in the Regular Account and are
allocated among the Regular Sub-accounts of the Partners on the
basis of their respective Partnership Percentages at the relevant
time.
3.5 Special Situation Investment Sub-accounts
(a) Subject to Section 5.5(d), whenever the Partnership makes a
Special Situation Investment, a Special Situation Investment Sub-
account is established for each Partner who had a Regular Sub-
account at such time to reflect such Partner's pro rata share of
all allocations and distributions attributable to transactions
involving such Special Situation Investment, based on such
Partner's Partnership Percentage
12
at such time. Thereafter, all credits and debits relating to such
Special Situation Investment (including those specifically referred
to below) are allocated among the Special Situation Investment
Sub-accounts in accordance with the Partnership Percentages of the
participating Partners existing upon inception of such Special
Situation Investment Sub-accounts.
(b) An amount equal to a Partner's share of the cost of the
Special Situation Investment is debited from such Partner's
Regular Sub-account balance and credited to each participating
Partner's Special Situation Investment Sub-account. In addition,
any costs and expenses directly related to the acquisition,
ownership or disposition of a Special Situation Investment are
allocated exclusively among the Partners who have an interest
therein and are reflected by means of (i) a transfer from each of
their respective Regular Sub-accounts to each of their respective
Special Situation Investment Sub-accounts and (ii) a debit of
such item from the Special Situation Investment Sub-accounts.
Special Situation Investment Sub-accounts are not adjusted to
reflect any change in the value of the Special Situation
Investment prior to the occurrence of a Recognition Event with
respect to such Special Situation Investment.
(c) Upon the occurrence of a Recognition Event relating to a
Special Situation Investment, the carrying value thereof or the
proceeds thereof, as the case may be, are adjusted to reflect the
fair value thereof, and the Special Situation Investment Sub-
accounts relating to such Special Situation Investment are
closed.
(d) When a Partner's Special Situation Investment Sub-account
relating to a particular Special Situation Investment is closed,
the balance therein (net of Management Fees and Performance
Allocations it earned) is combined with such Partner's Regular
Sub-account, and each Partner's Partnership Percentage is
adjusted accordingly. If a Recognition Event affects only a
portion of the Security position constituting a single Special
Situation Investment, the General Partner sub-divides each
affected Special Situation Investment Sub-account and closes only
the portion with respect to which the Recognition Event has
occurred; provided, however, that the General Partner may
postpone taking such action if it believes that one or more
Recognition Events affecting the entire remaining Special
Situation Investment are reasonably imminent.
(e) If, immediately after a Recognition Event, the Partnership
continues to hold the Security that constituted the Special
Situation Investment (or a marketable Security that was exchanged
for it), then for purposes of determining and allocating future
profit or loss associated with that investment, the Partnership
will treat such investment as having been purchased in the
Regular Account at such time at a purchase price equal to the
current fair market value.
13
3.6 Allocation of Management Fees, Withholding Taxes and Certain
Other Expenditures
(a) Subject to any special arrangements with Special Limited
Partners, as of the last day of each Fiscal Quarter, each Limited
Partner's Management Fee for each Fiscal Quarter is debited
against the Regular Sub-account of each such Limited Partner. In
the case of a Limited Partner having no remaining balance in its
Regular Sub-account, the allocable portion of the Management Fee
is deferred and is payable upon the closing of any Special
Situation Investment Sub-accounts of any such Limited Partner.
(b) If the Partnership incurs a withholding tax or other tax
obligation with respect to the share of Partnership income
allocable to any Partner, then the General Partner, without
limitation of any other rights of the Partnership or the General
Partner, may cause the amount of such obligation to be debited
against the Capital Account of such Partner as of the close of
the Fiscal Period during which the Partnership pays such
obligation. If the amount of such taxes is greater than such
Capital Account balance, then such Partner and any successor to
such Partner's Interest must pay to the Partnership as a
contribution to the capital of the Partnership, upon demand of
the General Partner, the amount of such excess. The General
Partner is not obligated to apply for or obtain a reduction of or
exemption from withholding tax on behalf of any Partner that may
be eligible for such reduction or exemption.
(c) Except as otherwise provided for in the Agreement, any
expenditures payable by the Partnership, to the extent determined
by the General Partner to have been paid or withheld on behalf
of, or by reason of particular circumstances applicable to, one
or more but fewer than all of the Partners, are to be charged to
only those Partners on whose behalf such payments are made or
whose particular circumstances gave rise to such payments. Such
charges are debited from the Capital Accounts of such Partners as
of the close of the Fiscal Period during which any such items
were accrued by the Partnership.
3.7 Reserves; Adjustments for Certain Future Events
(a) Appropriate reserves may be created, accrued and charged
against the Regular Account Net Assets and proportionately
against the Capital Accounts of the Partners for contingent
liabilities, such reserves to be in the amounts that the General
Partner, in its sole discretion, deems necessary or appropriate.
The General Partner may increase or reduce any such reserve from
time to time by such amounts as the General Partner in its
discretion deems necessary or appropriate. At the sole
discretion of the General Partner, the amount of any such
reserve, or any increase or decrease therein, may be charged or
credited, as appropriate, to the Capital Accounts of those
parties who are Partners at the time
14
when such reserve is created, increased, or decreased, as the
case may be, or alternatively may be charged or credited to those
parties who were Partners at the time of the act or omission giving
rise to the contingent liability for which the reserve was
established.
(b) If the General Partner in its sole discretion determines
that it is equitable to treat an amount to be paid or received as
being applicable to one or more prior periods, then such amount
may be proportionately charged or credited, as appropriate, to
those parties who were Partners during such prior period or
periods.
(c) If any amount is to be charged or credited to a party who is
no longer a Partner, such amount must be paid by or to such
party, as the case may be, in cash, with interest at the Prime
Rate in effect at that time from the date on which the General
Partner determines that such charge or credit is required. In
the case of a charge, the former Partner is obligated to pay the
amount of the charge, plus interest as provided above, to the
Partnership on demand; provided that (i) in no event is a former
Partner obligated to make a payment exceeding the amount of its
Capital Account at the time to which the charge relates, and (ii)
no such demand may be made if the applicable limitation period
under the Act, if any, has expired. To the extent the
Partnership fails to collect, in full, any amount required to be
charged to such former Partner pursuant to paragraph (a) or (b)
of this Section 3.7, whether due to the expiration of the
applicable limitation period, if any, or for any other reason
whatsoever, the deficiency may be charged proportionately to the
Capital Accounts of the current Partners.
3.8 Performance Allocation
(a) The Performance Allocation is debited against the Capital
Account of each Limited Partner as of the last day of each
Performance Period with respect to such Limited Partner, and the
amount so debited is simultaneously credited to the Capital
Account of the General Partner.
(b) The General Partner, in its sole discretion, may waive or
reduce the Performance Allocation with respect to Limited
Partners that are affiliated with the General Partner and others.
(c) The General Partner is not entitled to receive a Performance
Allocation on any assets of the Partnership that are held in a
Special Situation Investment Sub-account until such account is
liquidated.
3.9 Allocation to Avoid Capital Account Deficits
To the extent that any debits pursuant to Sections 3.4
through 3.8 hereof would reduce the balance of the Capital
Account of any Limited Partner below zero, that portion of any
such
15
debits is instead allocated to the Capital Account of the
General Partner. Any credits in any subsequent Fiscal Period
that would otherwise be allocable pursuant to Section 3.4 through
3.8 hereof to the Capital Account of any Limited Partner
previously affected by the application of this Section 3.9 are
instead allocated to the Capital Account of the General Partner
in such amounts as are necessary to offset all previous debits
attributable to such Limited Partner (but allocated to the
General Partner) pursuant to this Section 3.9 not previously
recovered.
3.10 Allocations for Income Tax Purposes
(a) Except as otherwise required by Code Section 704(c), items
of income, gain, deduction, loss, or credit that are recognized
for income tax purposes in each Fiscal Year are allocated among
the Partners, General and Limited, in such manner as to reflect
equitably amounts credited to or debited against each Partner's
Capital Account, whether in such Fiscal Year or in prior Fiscal
Years. To this end, the Partnership establishes and maintains
records that show the extent to which the Capital Account of each
Partner, as of the last day of each Fiscal Year, consists of
amounts that have not been reflected in the taxable income of
such Partner. To the extent deemed by the General Partner, in
its sole discretion, to be feasible and equitable, taxable income
and gains in each Fiscal Year are allocated among the Partners
who have enjoyed the related credits to their Capital Accounts,
and items of deduction, loss and credit in each Fiscal Year are
allocated among the Partners who have borne the burden of the
related debits to their Capital Accounts.
(b) To the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Code Section 734(b) or Code Section
743(b) is required under Regulations Section 1.704-1(b)(2)(iv)(m)
to be taken into account in determining Capital Accounts, the
amount of such adjustment to the Capital Accounts is treated as
an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis) and such
gain or loss is specially allocated to the Partners in a manner
consistent with the manner in which their Capital Accounts are
required to be adjusted pursuant to such Section of the
Regulations; provided, in the event that an adjustment to the
book value of Partnership property is made as a result of an
adjustment pursuant to Section 734(b) of the Code, items of
income, gain, loss, or deduction, as computed for book and tax
purposes, are specially allocated among the Partners so that the
effect of any such adjustment benefits (or is borne by) the
Partner(s) receiving the distribution that caused such
adjustment.
(c) If the Partnership realizes net gains from the sale of
Partnership assets for federal income tax purposes for any Fiscal
Year in which one or more Positive Basis Partners withdraws from
the Partnership pursuant to Section 5.5, the General Partner in
its sole discretion may elect (i) to allocate such net gains or
items of gross income among such Positive Basis Partners, pro
rata in proportion to the
16
respective Positive Basis of each such Positive Basis Partner,
until either the full amount of such net gains has been so
allocated or the Positive Basis of each such Positive Basis
Partner has been eliminated or (ii) to allocate any net gains
not so allocated to Positive Basis Partners to the other Partners
in such manner that reflects equitably the amounts
credited to such Partners' Capital Accounts pursuant to Section
3.3; provided, however, that if, following such Fiscal Year, the
Partnership realizes net gains from a sale of an investment the
proceeds of which are designated on the Partnership's books and
records as being used to effect payment of all or part of the
liquidating share of any Positive Basis Partner, there will be
allocated to such Positive Basis Partner an amount of such net
gains equal to the amount, if any, by which his Positive Basis as
of the effective date of his withdrawal exceeds the amount
allocated to such Partner pursuant to clause (i) of this
sentence.
3.11 Qualified Income Offset
In the event any Limited Partner unexpectedly receives any
adjustments, allocations, or distributions described in Section
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Partnership
income and gain will be specially allocated to each such Limited
Partner in an amount and manner sufficient to eliminate, to the
extent required by the Regulations, the deficit balance in the
Capital Account of such Limited Partner as quickly as possible,
provided that an allocation pursuant to this Section 3.11 may be
made only if and to the extent that such Limited Partner would
have a deficit balance in its Capital Account after all other
allocations provided for in this Article III have been
tentatively made as if this Section 3.11 were not in the
Agreement. This Section 3.11 is intended to constitute a
"qualified income offset" within the meaning of Regulations
Section 1.704-1(b)(2)(ii), and must be interpreted consistently
therewith.
3.12 Gross Income Allocation
In the event any Limited Partner has a deficit Capital
Account at the end of any Fiscal Year that is in excess of the
sum of (i) the amount such Limited Partner is obligated to
restore pursuant to any provision of this Agreement and (ii) the
amount such Limited Partner is deemed to be obligated to restore
pursuant to the penultimate sentences of Regulations Section
1.704-2(g)(1) and 1.704-2(i)(5), each such Limited Partner will
be specially allocated items of Partnership income and gain in
the amount of such excess as quickly as possible, provided that
an allocation pursuant to this Section 3.12 may be made only if
and to the extent that such Limited Partner would have a deficit
Capital Account in excess of such sum after all other allocations
provided for in this Article III have been made as if Section
3.11 hereof and this Section 3.12 were not in the Agreement.
17
3.13 Individual Partners' Tax Treatment
Each Partner agrees not to treat, on any personal income tax
return or in any claim for a refund, any item of income, gain,
loss, deduction or credit in a manner inconsistent with the
treatment of such item by the Partnership.
3.14 Distributions
(a) The amount and timing of any distributions from the
Partnership are determined by the General Partner in its sole
discretion.
(b) Notwithstanding any provision to the contrary contained in
this Agreement, the Partnership, and the General Partner on
behalf of the Partnership, may not make a distribution to any
Partner on any account of its Interest if such distribution would
violate Section 6.07 of the Act or other applicable law.
_____________
Article IV
Management
_____________
4.1 Duties and Powers of the General Partner
(a) Subject to the terms and conditions of this Agreement, the
General Partner has complete and exclusive power and
responsibility, to the fullest extent permitted by the Act (i)
for all investment and investment management decisions to be
undertaken on behalf of the Partnership and (ii) for managing and
administering the affairs of the Partnership, and has the power
and authority to do all things that the General Partner considers
necessary or desirable to carry out its duties hereunder and to
achieve the purposes of the Partnership.
(b) Without limiting the generality of the General Partner's
duties and obligations hereunder and notwithstanding anything to
the contrary contained herein, the General Partner has full power
and authority to execute, deliver and perform such contracts,
agreements and other undertakings on behalf of the Partnership,
without the consent or approval of any other Partner, and to
engage in all activities and transactions, as it may deem
necessary or advisable for, or as may be incidental to, the
conduct of the business and affairs of the Partnership,
including, without in any manner limiting the generality of the
foregoing, (i) contracts, agreements, undertakings and
transactions with any Partner or with any other Person having any
business, financial or other relationship with any Partner or
Partners, (ii) agreements with each Limited Partner in connection
with its purchase of a Limited Partner Interest, including a
subscription agreement wherein such Limited Partner
18
agrees to be bound by the terms of this Agreement and (iii)
any agreements to induce any Person to purchase a Limited
Partner Interest, each without any further act, approval or
vote of any Person.
(c) The General Partner is the tax matters partner for purposes
of Section 6231(a)(7) of the Code. The tax matters partner has
the exclusive authority and discretion to make any elections
required or permitted to be made by the Partnership under any
provisions of the Code or any other applicable laws.
4.2 Management Fees
The General Partner is entitled to receive from the
Partnership as compensation for its services to the Partnership
hereunder the Management Fee payable as of the end of each Fiscal
Quarter. The General Partner may assign the Management Fee to
any of its affiliates.
4.3 Expenses
(a) Subject to Section 4.3(c), the General Partner pays all of
its own operating and overhead costs.
(b) The Partnership pays all other costs and expenses arising in
connection with its operations. Such expenses payable by the
Partnership include, without limitation, the following:
(i) all costs and expenses directly related to portfolio
investments or prospective investments of the Partnership,
including brokerage commissions and other transaction costs,
expenses related to proxies, underwriting and private placements,
interest and commitment fees on debit balances or borrowings,
borrowing charges on Securities sold short, custody fees and fees
of professional advisors and consultants relating to investments
or prospective investments;
(ii) any withholding or transfer taxes imposed on the Partnership
or any of its Partners;
(iii)any governmental, regulatory, licensing, filing or
registration fees incurred in compliance with the rules of any
self-regulatory organization or any federal, state or local laws;
(iv) any interest due to Partners in connection with capital
withdrawals;
(v) any legal fees and costs (including settlement costs)
arising in connection with any litigation or regulatory
investigation instituted against the Partnership or the General
Partner in its capacity as such;
19
(vi) the cost of the audit of the Partnership's financial
statements and the preparation of its tax returns;
(vii)the fees and expenses of the Partnership's accountants
in connection with accounting advice relating to the
Partnership's day-to-day affairs and all costs related to the
keeping of the books and records of the Partnership;
(viii)the fees and expenses of the Partnership's counsel in
connection with advice directly relating to the Partnership's
legal affairs;
(ix) the costs of any outside appraisers, accountants, attorneys
or other experts engaged by the General Partner as well as other
expenses directly related to the Partnership's investment
program;
(x) specific expenses incurred in obtaining systems, research
and other information utilized for portfolio management purposes
that facilitate valuations and accounting, including the costs of
statistics and pricing services, service contracts for quotation
equipment and related hardware and software;
(xi) all costs and expenses associated with the organization of
the Partnership and the offering of Interests, including legal
and accounting fees, printing costs, travel and out-of-pocket
expenses and compliance with any applicable federal and state
laws;
(xii)the costs and expenses of holding any meetings of
partners which are required to be held under the terms of this
Agreement or by law;
(xiii)the expenses of the Investment Committee and the
members thereof;
(xiv)the costs of any liability insurance obtained on behalf
of the Partnership or the General Partner; and
(xv) all costs and expenses associated with reporting and
providing information to existing and prospective Partners.
Any of the above-listed expenses may be specially
allocated among the Partners as provided elsewhere in
this Agreement. The General Partner is entitled to
reimbursement from the Partnership for any of the above
expenses paid by it on behalf of the Partnership;
provided that, the General Partner may, in its sole
discretion, absorb any or all of such expenses incurred
on behalf of the Partnership or have an Affiliate of
the General Partner absorb such expenses on behalf of
the Partnership. If the General Partner or its
Affiliate incurs any of the expenses mentioned in
Section 4.3(b) above for the account of the Partnership
and any other Managed Account, then the General Partner
allocates such expense among
20
the Partnership and each such Managed Account in proportion
to the size of the investment made by each in the activity or
entity to which the expense relates, or in such other manner
as the General Partner considers fair and reasonable.
4.4 Rights of Limited Partners
The Limited Partners take no part in the management or
control of the Partnership's business and have no right or
authority to act for the Partnership or to vote on matters other
than the matters set forth in this Agreement or as required by
applicable law.
4.5 Other Activities of Partners
(a) The General Partner is not required to devote its full time
to the affairs of the Partnership, but must devote such of its
time to the business and affairs of the Partnership as it, in its
discretion exercised in good faith, determines to be necessary to
conduct the affairs of the Partnership for the benefit of the
Partnership and the Partners.
(b) Each Partner agrees that any other Partner and any partner,
manager, director, officer, shareholder, member, Affiliate or
employee of any Partner, may engage in or possess an interest in
other business ventures or commercial dealings of every kind and
description, independently or with others, including management
of other accounts, investment in, or financing, acquisition and
disposition of, Securities, investment and management counseling,
brokerage services, serving as directors, officers, advisers or
agents of other companies, partners of any partnership, or
trustee of any trust, or entering into any other commercial
arrangements, whether or not any such activities may conflict
with any interest of the parties with respect to the Partnership.
Without in any way limiting the foregoing, each Partner hereby
acknowledges that (i) none of the Limited Partners or their
respective partners, managers, directors, officers, shareholders,
members, Affiliates or employees have any obligation or
responsibility to disclose or refer any of the investment or
other opportunities obtained through activities contemplated by
this paragraph (b) of Section 4.5 to the General Partner or the
Limited Partners, but may refer the same to any other party or
keep such opportunities for their own benefit; and (ii) the
Limited Partners and the General Partner and their respective
partners, managers, directors, officers, shareholders, members,
Affiliates and employees are hereby authorized to engage in
activities contemplated by this paragraph (b) of Section 4.5
with, or to purchase, sell or otherwise deal or invest in
Securities issued by, companies in which the General Partner
might from time to time invest or be able to invest or otherwise
have any interest on behalf of the Partnership, without the
consent or approval of the Partnership or any other Partner.
21
(c) The General Partner must act in a manner that it considers
fair, reasonable and equitable in allocating investment
opportunities to the Partnership but does not otherwise have any
specific obligations or requirements concerning the allocation of
time, effort or investment opportunities to the Partnership or
any restrictions on the nature or timing of investments for the
account of the Partnership, for the General Partner's own
account, or for other accounts that the General Partner or its
Affiliates may manage. When the General Partner in its sole
discretion determines that it would be appropriate for the
Partnership and any Managed Account to participate in an
investment opportunity, the General Partner must seek to execute
orders for the Partnership and any other Managed Accounts on an
equitable basis. If the General Partner determines to invest in
the same direction in the same Security at the same time for the
Partnership and one or more Managed Accounts, the General Partner
will generally place orders for all such accounts simultaneously.
If all such orders are not filled at the same price, the General
Partner will, to the greatest extent possible, allocate the
trades such that the order for each account is filled at the same
average price. If all such orders cannot be fully executed under
prevailing market conditions, the General Partner may allocate
the Securities or other assets traded among the Partnership and
any Managed Account on a basis that it considers equitable. The
principals of the General Partner and the employees and officers
thereof and of the organizations Affiliated with the General
Partner may buy and sell Securities for their own account or for
the account of others, but may not buy Securities from or sell
Securities to the Partnership.
(d) The parties hereto hereby waive, and covenant not to ▇▇▇ on
the basis of, any law (statutory, common law or otherwise)
respecting the rights and obligations of the Partners inter se
which is or may be inconsistent with this Section 4.5.
4.6 Duty of Care; Indemnification
(a) To the fullest extent permitted under applicable law, no
Covered Person is liable to the Partnership or to any of the
Partners for any losses, claims, damages or liabilities arising
(i) by reason of being or having been a Covered Person or (ii)
from any act or omission performed or omitted by the Covered
Person in connection with this Agreement or the Partnership's
business or affairs (including any error in judgment in making
any investment decisions), including losses due to the negligence
of brokers or other agents of the Partnership, except for any
losses, claims, damages or liabilities primarily attributable to
such Covered Person's willful misconduct, recklessness, or gross
negligence, as finally determined by a court of competent
jurisdiction, or as otherwise required by law. The General
Partner is not personally liable to any Limited Partner for the
repayment of any positive balance in such Limited Partner's
Capital Account or for contributions by such Limited Partner to
the capital of the Partnership or by reason of any change
22
in the federal or state income tax laws applicable to the
Partnership or its investors.
(b) The Partnership must, to the fullest extent permitted by
applicable law, indemnify and hold harmless each Covered Person
against any losses, claims, damages, liabilities, costs or
expenses (including legal fees, judgments and amounts paid in
settlement) to which such Covered Person may become subject (i)
by reason of being or having been a Covered Person or (ii) in
connection with any matter arising out of or in connection with
this Agreement or the Partnership's business or affairs, unless
(A) a court of competent jurisdiction, in a judgment that has
become final and that is no longer subject to appeal or review,
determines that any such loss, claim, damage, liability, cost or
expense is primarily attributable to such Covered Person's
willful misconduct, recklessness, or gross negligence or (B) it
is determined in accordance with Section 11.06(2) of the Act that
such Covered Person did not act in good faith and did not
reasonably believe that the Covered Person's conduct was, in the
case of the General Partner (in its capacity as a general partner
of the Partnership), in the Partnership's best interests or, in
all other cases, at least not opposed to the Partnership's best
interests. The right to indemnification granted by this Section
4.6(b) is in addition to any rights to which the Covered Person
may otherwise be entitled and inures to the benefit of the
successors or assigns of such Covered Person. If any Covered
Person becomes involved in any capacity in any action, proceeding
or investigation in connection with any matter arising out of or
in connection with this Agreement or the Partnership's business
or affairs, the Partnership must pay (as they are incurred) the
Covered Person's legal and other expenses (including the cost of
any investigation and preparation) incurred in connection
therewith after the Partnership receives (i) a written
affirmation by the Covered Person of the Covered Person's good
faith belief that it has met the standard of conduct necessary
for indemnification under this Section 4.6(b) and (ii) a written
undertaking by or on behalf of the Covered Person to repay to the
Partnership the amount of any such expenses paid to the extent
that it is ultimately determined that such Covered Person is not
entitled to be indemnified by the Partnership in connection with
such action, proceeding or investigation as provided in the
exceptions contained in the first sentence of this Section 4.6(b)
or under applicable law. Any indemnification of or advancement
of expenses to a Covered Person will be reported in writing to
the Limited Partners not later than six months after the date
that the indemnification or advancement of expenses occurs. If
for any reason (other than the willful misconduct, recklessness,
or gross negligence of such Covered Person) the foregoing
indemnification is unavailable to such Covered Person, or
insufficient to hold it harmless, then the Partnership must, to
the fullest extent permitted by law, contribute to the amount
paid or payable by such Covered Person as a result of such loss,
claim, damage or liability in such proportion as is appropriate
to reflect the relative benefits received by the
23
Partnership, on the one hand, and the Covered Person on the
other hand or, if such allocation is not permitted by applicable
law, to reflect not only the relative benefits referred to above
but also any other relevant equitable considerations. In any
suit brought to enforce a right to indemnification or to recover
an advancement of expenses, the burden of proving that the Covered
Person or other Person claiming a right to indemnification is not
entitled to be indemnified, or to an advancement of expenses,
hereunder is on the Partnership (or any Limited Partner acting
derivatively or otherwise on behalf of the Partnership or the
Limited Partners). No Covered Person may satisfy any right of
indemnity or advancement of expenses granted in this Section 4.6(b)
or to which it may be otherwise entitled except out of the assets
of the Partnership, and no Partner is personally liable with
respect to any such claim for indemnity or advancement of expenses.
The General Partner in its sole discretion may obtain appropriate
insurance on behalf of the Partnership to secure the
Partnership's obligations hereunder.
4.7 Fiduciary Duties; Discretion
(a) To the extent that, at law or in equity, a Covered Person
has duties (including fiduciary duties) and liabilities relating
thereto to the Partnership or to any Partner, such Covered Person
acting under this Agreement is not liable to the Partnership or
to any Partner for its good faith reliance on the provisions of
this Agreement. The provisions of this Agreement, to the extent
that they restrict the duties and liabilities of a Covered Person
otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such
Covered Person.
(b) To the fullest extent permitted by law, unless otherwise
expressly provided for herein, (i) whenever a conflict of
interest exists or arises between the General Partner or any of
its Affiliates, on the one hand, and the Partnership or a Limited
Partner on the other hand, or (ii) whenever this Agreement or any
other agreement contemplated herein or therein provides that the
General Partner must act in a manner which is, or provide terms
which are, fair and reasonable to the Partnership, or any Limited
Partner, the General Partner must resolve such conflict of
interest, take such action or provide such terms, considering in
each case the relative interest of each party, including its own
interest, to such conflict, agreement, transaction or situation
and the benefits and burdens relating to such interests, any
customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the
absence of bad faith by the General Partner, the resolution,
action or terms so made, taken or provided by the General Partner
do not constitute a breach of this Agreement or any other
agreement contemplated herein or of any duty or obligation of the
General Partner at law or in equity or otherwise.
24
(c) To the fullest extent permitted by law, whenever in this
Agreement a Person is permitted or required to make a decision
(i) in its "sole discretion" or "discretion" or under a grant of
similar authority or latitude, such Person is entitled to
consider only such interests and factors as it desires, including
its own interests, and has no duty or obligation to give any
consideration to any interest of or factors affecting the
Partnership or the Limited Partners, or (ii) in its "good faith"
or under another express standard, then such Person acts under
such express standard and is not subject to any other or
different standards imposed by this Agreement or any other
agreement contemplated herein or by relevant provisions of law or
in equity or otherwise.
4.8 Investment Committee
(a) The General Partner may in its sole discretion appoint a
committee (the "Investment Committee") composed of one or more
individuals selected from time to time by the General Partner in
its sole discretion. No member of the Investment Committee may
be an Affiliate of or associated with the General Partner (except
as a Limited Partner or as an investor in an Affiliate of the
Partnership).
(b) If established, the Investment Committee will meet with the
General Partner from time to time as deemed appropriate by the
General Partner in its sole discretion to consult with and advise
the General Partner on any matter deemed appropriate by the
General Partner in its sole discretion, including any
circumstances involving conflicts of interest between the General
Partner on the one hand and the Limited Partners and the
Partnership on the other.
(c) The General Partner may in its discretion seek the approval
of the Investment Committee in connection with (i) approvals that
are or would be required under the Investment Advisers Act of
1940, as amended (including Section 206(3) thereunder) or (ii)
any other matter deemed appropriate by the General Partner in its
sole discretion. Each Limited Partner agrees that except as
otherwise specifically provided herein and to the extent
permitted by applicable law, the approval of a majority of the
members of the Investment Committee at such time is binding upon
the Partnership and each Partner with respect to any approval
sought under this Section 4.8(c); provided that, for the
avoidance of doubt, the Investment Committee is not entitled to
approve any amendment to this Agreement otherwise than in
accordance with the provisions of Section 8.1 below.
(d) Subject to the foregoing, any recommendations of or actions
taken by the Investment Committee are advisory only and the
General Partner is not required or otherwise bound to act in
accordance with any such recommendations or actions.
25
(e) In the sole discretion of the General Partner, meetings of
the Investment Committee may be held in person or by telephone.
Approval of the Investment Committee is deemed to have been given
if given by a majority of those members present at a meeting or
by a majority of all members of the Investment Committee if given
pursuant to a written consent without a meeting.
_____________
Article V
Admissions, Transfers and Withdrawals
_____________
5.1 Admission of Limited Partners
The General Partner may, at the beginning of each Fiscal
Quarter, or at such other times as the General Partner may
determine, in its sole discretion, and without advance notice to
or consent from the Limited Partners, admit any Person who
executes this Agreement or any other writing evidencing the
intent of such Person to become a Limited Partner, unless the
investment by such Limited Partner in the Partnership would have
any of the effects described in clauses (i) through (vi) of
Section 5.3(c) herein. The General Partner has the absolute
discretion to reject subscriptions for Limited Partner Interests.
5.2 Admission of Additional General Partners
(a) Except as provided in Section 5.2(b), the General Partner
may admit one or more Persons to the Partnership as additional
general partners only if such action is approved by Limited
Partners whose Partnership Percentages represent more than fifty
percent (50%) of the aggregate Partnership Percentages of all
Limited Partners. No additional general partner may be added
unless such additional general partner agrees to be bound by all
of the terms of this Agreement or if adding such additional
general partner would have any of the effects described in
clauses (i) through (vi) of Section 5.3(c) herein.
(b) Notwithstanding Section 5.2(a), any Person to whom a General
Partner has transferred its General Partner Interest in
accordance with Section 5.4 will be admitted to the Partnership
as a substitute General Partner without the consent of the
Limited Partners.
5.3 Transfer of Interests of Limited Partners
(a) Each Limited Partner agrees that he will not make or attempt
to make any Transfer of his Interest which would violate this
Section 5.3. In the event of any attempted Transfer of any
Limited Partner's Interest in violation of the provisions of this
Section 5.3, without limiting any other rights of the
Partnership, the
26
General Partner in its sole discretion has the right to require
the withdrawal of such Limited Partner's Interest from the
Partnership as provided by Section 5.5(g).
(b) No Transfer of any Limited Partner's Interest, whether
voluntary or involuntary, is valid or effective, and no
transferee becomes a substituted Limited Partner, unless the
prior written consent of the General Partner has been obtained,
which consent may be withheld for any reason or for no reason in
the sole discretion of the General Partner. In the event of any
Transfer, all of the conditions of the remainder of this Section
5.3 must also be satisfied.
(c) No Transfer of any Limited Partner's Interest, whether
voluntary or involuntary, is valid or effective unless the
General Partner in its sole discretion determines, after
consultation with legal counsel acting for the Partnership, that
such Transfer will not:
(i) require registration of any Interest under any securities
laws of the United States of America, any state thereof or any
other jurisdiction;
(ii) subject the Partnership or the General Partner to a
requirement to register, or to additional disclosure or other
requirements, under any securities or commodities laws of the
United States of America, any state thereof or any other
jurisdiction;
(iii)result in a termination of the Partnership for U.S.
federal income tax purposes under Section 708(b)(1)(B) of the
Code or cause the Partnership to be treated as a "publicly traded
partnership" for U.S. federal income tax purposes under Section
7704(b) of the Code;
(iv) result in the Partnership being considered an investment
company under the Company Act;
(v) violate or be inconsistent with any representation or
warranty made by the transferring Limited Partner at the time the
Limited Partner subscribed to purchase an Interest; or
(vi) result in assets of the Partnership being considered "Plan
Assets" for purposes of the Employee Retirement Income Security
Act of 1974, as amended.
The transferring Limited Partner, or his legal
representative, must give the General Partner written
notice before making any voluntary Transfer and after
any involuntary Transfer and must provide sufficient
information to allow legal counsel acting for the
Partnership to make the determination that the proposed
Transfer will not result in any of the consequences
referred to in clauses (i)
27
through (vi) above. If an assignment, transfer or
disposition occurs by reason of the death of a Limited
Partner or assignee, the notice may be given by the duly
authorized representative of the estate of the Limited
Partner or assignee. The notice must be supported by
proof of legal authority and valid assignment acceptable
to the General Partner.
(d) In the event any Transfer permitted by this Section 5.3
results in multiple ownership of any Limited Partner's Interest,
the General Partner in its sole discretion may require one or
more trustees or nominees to be designated to represent a portion
of or the entire Interest transferred for the purpose of
receiving all notices which may be given and all payments which
may be made under this Agreement and for the purpose of
exercising the rights which the transferor as a Limited Partner
had pursuant to the provisions of this Agreement.
(e) Subsequent to receipt of the consent of the General Partner
(which consent may be withheld by the General Partner in its sole
discretion), an authorized transferee is entitled to the
allocations and distributions attributable to the Interest
transferred to such transferee and to transfer such Interest in
accordance with the terms of this Agreement; provided, however,
that such transferee is not entitled to the other rights of a
Limited Partner as a result of such transfer until he becomes a
substituted Limited Partner. No transferee, except with the
consent of the General Partner (which consent may be withheld in
its sole discretion), may become a substituted Limited Partner.
If the General Partner withholds consent, a transferee will not
have any of the rights of a Limited Partner, except that the
transferee will be entitled to receive that share of capital or
profits and to have the right of withdrawal to which his
transferor would have been entitled and will remain subject to
the other terms of this Agreement. A transferring Limited
Partner remains liable to the Partnership as provided under
applicable law regardless of whether his transferee becomes a
substituted Limited Partner. Notwithstanding the above, the
Partnership and the General Partner will incur no liability for
allocations and distributions made in good faith to the
transferring Limited Partner until a written instrument of
transfer has been received by the Partnership and recorded on its
books and the effective date of the Transfer has passed.
(f) Any other provision of this Agreement to the contrary
notwithstanding, any successor to any Limited Partner's Interest
is bound by the provisions hereof. Prior to recognizing any
Transfer in accordance with this Section 5.3, the General Partner
in its sole discretion may require the transferring Limited
Partner to execute and acknowledge an instrument of transfer in
form and substance satisfactory to the General Partner, and may
require the transferee to make certain representations and
warranties to the Partnership and Partners and to accept, adopt
and approve in writing all of the terms and provisions of this
Agreement. A
28
transferee becomes a substituted Limited Partner
and succeeds to the portion of the transferor's Capital Account
relating to the Interest transferred effective upon the
satisfaction of all of the conditions for such Transfer contained
in this Section 5.3.
(g) In the event of a Transfer or in the event of a distribution
of assets of the Partnership to any Partner, the Partnership, in
the absolute discretion of the General Partner, may, but is not
required to, file an election under Section 754 of the Code and
in accordance with the applicable Regulations, to cause the basis
of the Partnership's assets to be adjusted for federal income tax
purposes as provided by Sections 734 or 743 of the Code.
5.4 Transfer of Interest of the General Partner
(a) The General Partner may not transfer its General Partner
Interest other than (i) pursuant to Section 5.4(b), (ii) pursuant
to a transaction not deemed to involve an assignment of its
investment management obligations within the meaning of the
United States Investment Advisers Act of 1940, as amended, or
(iii) with the approval of Limited Partners whose Partnership
Percentages represent more than fifty percent (50%) of the
aggregate Partnership Percentages of all Limited Partners. By
executing this Agreement, each Limited Partner is deemed to have
consented to any such transfer permitted by clause (ii) of the
preceding sentence.
(b) Notwithstanding Section 5.4(a), Endurance General Partners,
L.P. may transfer its General Partner Interest to any entity
managed and controlled by it or its general partner without the
consent of the Limited Partners, and the transferee will be
admitted to the Partnership as a substitute General Partner in
accordance with Section 5.2(b). The General Partner must notify
the Limited Partners of any transfer pursuant to this Section
5.4(b).
5.5 Withdrawal of Interests of Partners
(a) The Interest of a Partner may not be withdrawn from the
Partnership prior to its dissolution except as provided in this
Section 5.5.
(b) Except as provided in Section 5.5(k) and this Section
5.5(b), a Limited Partner may voluntarily withdraw all or part of
his Limited Partner Interest in the Partnership on June 30 and
December 31 of each year (each "a Withdrawal Date") (or at such
other times as the General Partner, in its sole discretion, may
determine); provided that as of such Withdrawal Date, such
Limited Partner shall pay the General Partner a fee of (i) three
percent (3%) of his withdrawn Limited Partner Interest if he has
held a Limited Partner Interest for less than twelve (12)
complete, consecutive calendar months, (ii) two percent (2%) of
his withdrawn Limited Partner Interest if he has held a Limited
Partner Interest for more than
29
twelve (12) complete, consecutive calendar months but less
than twenty-four (24) complete, consecutive calendar months,
and (iii) one percent (1%) of his withdrawn Limited Partner
Interest if he has held a Limited Partner Interest for more
than twenty-four (24) complete, consecutive calendar months
but less than thirty-six (36) complete, consecutive calendar
months. Such Limited Partner must give irrevocable written
notice to the General Partner at the principal office of the
Partnership at least forty-five (45) days prior to the proposed
withdrawal date (or within such other time as the General Partner,
in its sole discretion, determines) indicating the amount to be
withdrawn from such Partner's Capital Account in such notice.
The General Partner may, in its sole discretion, waive the
foregoing notice requirement.
(c) The General Partner may not make any withdrawal from the
Partnership if, after giving effect thereto, the value of the
General Partner's Capital Account, as a general partner of the
Partnership, would be less than the minimum balance required to
be maintained pursuant to Section 3.1(c). Subject to the
foregoing, the General Partner may voluntarily withdraw part of
its Interest (irrespective of whether it be as a general partner
or a limited partner of the Partnership) at any time pursuant to
this Section 5.5 without giving notice to the Limited Partners.
(d) The General Partner, in its sole discretion, may effect
withdrawal payments (i) in cash, (ii) by transfer to the Limited
Partner of certain portfolio Securities or other assets of the
Partnership, whether or not readily marketable, the fair market
value of which would satisfy the Limited Partner's request for
withdrawal or (iii) in any combination of the foregoing. Except
as provided in Sections 5.5(f) and 5.5(i), payment of at least
ninety percent (90%) of the estimated amount due to a withdrawing
Partner must be made as soon as practicable (but not more than
ninety (90) days) after the effective date of withdrawal,
provided that the General Partner may delay such payment if such
delay is reasonably necessary to prevent such withdrawal from
having a material adverse impact on the Partnership. Any
remaining balance must be paid, with interest at the Prime Rate
thereon, promptly following completion of the audit of the
Partnership's financial statements for the Fiscal Year that
includes the effective date of withdrawal. The capital to be
withdrawn will not participate in new Special Situation
Investments made after the relevant withdrawal date. A request
for a partial withdrawal is charged to a Limited Partner's
Capital Account attributable to the Regular Account to the extent
thereof, unless otherwise agreed with the General Partner.
(e) The General Partner, in its sole discretion, may deduct from
any withdrawal payments or otherwise charge to the withdrawing
Limited Partner a withdrawal charge reflecting the actual or
estimated cost to the Partnership of complying with and
processing such withdrawal. The amount of any charges retained
by the Partnership in connection with any withdrawal, net of any
actual costs and
30
expenses of processing the withdrawal, is allocated among and
credited to the Capital Accounts of the remaining Partners on
the commencement of the Fiscal Period immediately following the
effective date of the withdrawal in accordance with their
respective Partnership Percentages at such time.
(f) Upon receipt by the General Partner of a Limited Partner's
notice of intention to withdraw assets from the Partnership, the
General Partner has the absolute discretion to manage the
Partnership's assets in a manner which would provide for cash
being available to satisfy such Limited Partner's request for
withdrawal, but the General Partner is under no obligation to
effect sales of Partnership assets if the General Partner, in
sole its discretion, determines that such transactions might be
detrimental to the interest of the other Partners or that such
transactions are not reasonably practicable. In the case of a
complete withdrawal, or a partial withdrawal that cannot be fully
funded out of the Limited Partner's interest in the Regular
Account, no settlements may occur with respect to any of such
Limited Partner's Special Situation Investment Sub-accounts until
the occurrence of a Recognition Event with respect to any such
Special Situation Investment after the scheduled payment date for
the withdrawal. If the Recognition Event is a sale for cash, the
settlement is funded in cash within 90 days after the Recognition
Event (without interest). If the Recognition Event is not a sale
for cash, the General Partner may effect the settlement either by
making a distribution in kind of the Limited Partner's ratable
share of the relevant Security or by distributing the net
proceeds derived from a sale of such Securities or other
available cash. In connection with any such settlement, a
calculation of the Limited Partner's Performance Change through
the date of the Recognition Event is made to determine whether
any Performance Allocation is to be credited to the General
Partner. The General Partner is entitled to withdraw an amount
equal to any such Performance Allocation, together with any
Management Fees deferred pursuant to Section 3.6(a), at the same
time and in the same form (in cash or in kind) as the
distribution to the withdrawing Limited Partner.
(g) The General Partner may, in its sole discretion, require a
Limited Partner's Interest to be withdrawn in part or in its
entirety from the Partnership and for the Limited Partner to
cease to be a Limited Partner of the Partnership pursuant to this
Section 5.5, effective as of the end of a Fiscal Period, on not
less than 30 days' prior written notice (or not less than 5 days'
prior written notice if the General Partner determines in its
sole discretion that such Limited Partner's continued
participation in the Partnership may cause the Partnership or the
General Partner to violate any applicable law). The amount due
to any such Partner required to withdraw from the Partnership is
equal to the value of such Partner's Capital Account as of the
effective date of the withdrawal net of any charges imposed
pursuant to Section 5.5(e) hereof. Settlement of any such
31
withdrawal is effected in accordance with the remaining
provisions of this Section 5.5.
(h) The right of any Partner to withdraw or of any Partner to
have distributed an amount from his Capital Account pursuant to
the provisions of this Section 5.5 is subject to the provision by
the General Partner for all Partnership liabilities and for
reserves for contingencies provided for in Section 3.7 herein.
(i) The General Partner may suspend or restrict the right of any
Partner to withdraw capital from the Partnership or to receive a
distribution from the Partnership pursuant to this Section 5.5
upon the occurrence of any event that may result in dissolution
of the Partnership or at any other time in its sole discretion.
The General Partner must promptly notify each Limited Partner who
has submitted a withdrawal request and to whom payment in full of
the amount being withdrawn has not yet been remitted of any
suspension of withdrawal or distribution rights pursuant to this
Section 5.5(i). The General Partner, in its sole discretion, may
allow any such Partners to rescind their withdrawal request to
the extent of any portion thereof for which withdrawal proceeds
have not yet been remitted. The General Partner, in its sole
discretion, may complete any withdrawals or distributions as of a
date after the cause of any such suspension has ceased to exist
to be specified by the General Partner as the effective date of
withdrawal for all purposes of this Section 5.5 or at any other
time.
(j) A withdrawing Partner does not share in the income, gains
and losses of the Partnership or have any other rights as a
Partner after the effective date of its withdrawal except as
provided in Section 3.7.
(k) Limited Partner Interests held by investment funds managed
by the General Partner or any of its Affiliates are not subject
to the restrictions on withdrawal described in this Section 5.5.
(l) Notwithstanding Section 5.5(d), if the General Partner
receives a request to withdraw in excess of (i) twenty percent
(20%) of the total Capital Account balance for all Partners on
any Withdrawal Date or (ii) thirty percent (30%) of the total
Capital Account balance for all Partners for two consecutive
Withdrawal Dates, the General Partner may delay payment, on a pro
rata basis, of any amounts in excess of (i) or (ii) for up to one
(1) year from the applicable Withdrawal Date.
5.6 Withdrawal of Organizational Limited Partner
The Organizational Limited Partner withdraws from the
Partnership and is entitled to the return of any capital
contribution, without interest or deduction, upon the admission
of any other Limited Partner.
32
_____________
Article VI
Dissolution and Liquidation
_____________
6.1 Dissolution of Partnership
(a) Subject to the Act, the Partnership will dissolve and its
affairs must be wound up upon the earliest of:
(i) the written election of the General Partner, in its sole
discretion, to dissolve the Partnership, unless within 90 days
after the date of such election all of the Limited Partners agree
in writing to continue the business of the Partnership;
(ii) the occurrence of any event that results in the General
Partner ceasing to be the general partner of the Partnership
under the Act, provided that the Partnership will not be
dissolved and required to be wound up in connection with any such
event if (A) at the time of the occurrence of such event there is
at least one remaining general partner of the Partnership who is
hereby authorized to and does carry on the business of the
Partnership, or (B) within 90 days after the occurrence of such
event, all of the Limited Partners agree in writing to continue
the business of the Partnership and to the appointment, effective
as of the date of such event, if required, of one or more
additional general partners of the Partnership; and
(iii)the entry of a decree of judicial dissolution under
Section 8.02 of the Act.
(b) Except as provided in Section 6.1(a) or in the Act, the
death, mental illness, dissolution, termination, liquidation,
bankruptcy, reorganization, merger, sale of substantially all of
the stock or assets of or other change in the ownership or nature
of a Partner, the admission to the Partnership of a new General
or Limited Partner, the withdrawal of a Partner from the
Partnership, or the transfer by a Partner of his Interest to a
third party does not cause the Partnership to dissolve.
(c) The parties agree that irreparable damage would be done to
the goodwill and reputation of the Partners if any Limited
Partner should bring an action in court to dissolve the
Partnership. Care has been taken in this Agreement to provide
for fair and just payment in liquidation of the Interests of all
Partners. Accordingly, each Limited Partner hereby waives and
renounces its right to such a court decree of dissolution or to
seek the appointment by the court of a liquidator for the
Partnership except as provided herein.
33
6.2 Liquidation of Assets
(a) Upon dissolution of the Partnership pursuant to Section
6.1(a), the General Partner promptly liquidates the business and
administrative affairs of the Partnership, except that if the
General Partner is unable to perform this function, a liquidator
elected by Limited Partners whose Partnership Percentages
represent more than fifty percent (50%) of the aggregate
Partnership Percentages of all Limited Partners liquidates the
business and administrative affairs of the Partnership.
(b) Net profit and net loss attributable to the Regular Account
during the Fiscal Periods that include the period of liquidation
are allocated pursuant to Article III. The proceeds from
liquidation are divided in the following manner, subject to the
Act:
(i) the debts, liabilities and obligations of the Partnership,
other than debts to the Partners as Partners, and the expenses of
liquidation (including legal and accounting expenses incurred in
connection therewith), up to and including the date that
distribution of the Partnership's assets to the Partners has been
completed, are first satisfied (whether by payment or the making
of reasonable provision for payment thereof);
(ii) such debts as are owing to the Partners as Partners are next
paid; and
(iii)the Partners are next paid liquidating distributions
(in cash, securities, or other assets, whether or not readily
marketable) pro rata in accordance with, and up to the positive
balances of their respective Capital Accounts, as adjusted
pursuant to Article III to reflect allocations for the Fiscal
Period ending on the date of the distributions under this Section
6.2[(c)](iii).
(c) Notwithstanding anything in this Section 6.2 to the contrary
and subject to the priorities set forth in the Act, the General
Partner, liquidator or trustee, as the case may be, may
distribute ratably in-kind rather than in cash, upon dissolution,
any assets of the Partnership; provided, however, that if any in-
kind distribution is to be made, (i) the assets distributed in
kind must be valued pursuant to Section 7.2 as of the actual date
of their distribution, and charged as so valued and distributed
against amounts to be paid under Section 6.2(b) above and (ii)
any gain or loss (as computed for book purposes) attributable to
property distributed in-kind must be included in the net profit
or net loss attributable to the Regular Account for the Fiscal
Period ending on the date of such distribution.
34
_____________
Article VII
Accounting and Valuations;
Books and Records
_____________
7.1 Accounting and Reports
(a) The Partnership may adopt for tax accounting purposes any
accounting method that the General Partner decides in its sole
discretion is in the best interests of the Partnership and that
is permissible for federal income tax purposes.
(b) As soon as practicable after the end of each Fiscal Year
(beginning with the Fiscal Year ending December 31, 2002), the
General Partner causes an audit of the financial statements of
the Partnership as of the end of each such Fiscal Year to be made
by a firm of certified public accountants selected by the General
Partner in its sole discretion; and as soon as is practicable
thereafter but subject to Section 7.5, a copy of a set of
financial statements prepared on a basis that uses generally
accepted accounting principles as a guideline (with such
adjustments thereto as the General Partner determines appropriate
in its sole discretion), including the report of such certified
public accountants, is furnished to each Partner.
(c) As soon as practicable following the end of each Fiscal
Quarter but subject to Section 7.5, the General Partner arranges
for the preparation and delivery to each Limited Partner of an
interim report containing such information concerning the affairs
of the Partnership (which need not include any financial
statements) as the General Partner considers appropriate.
(d) As soon as practicable after the end of each taxable year,
the General Partner furnishes to each Limited Partner such
information as may be required to enable each Limited Partner
properly to report for federal and state income tax purposes his
distributive share of each Partnership item of income, gain,
loss, deduction or credit for such year.
7.2 Valuation of Partnership Assets and Interests
(a) The General Partner must value or have valued the Securities
and other assets of the Partnership as of the close of business
on the last day of each Fiscal Period and on any other date
selected by the General Partner in its sole discretion. In
addition, the General Partner must value Securities that are
being distributed in kind as of their date of distribution in
accordance with Section 6.2(c). In determining the value of the
assets of the Partnership, no value is placed on the goodwill or
name of the Partnership, or the office records, files,
statistical data or
35
any similar intangible assets of the Partnership not normally
reflected in the Partnership's accounting records, but there must
be taken into consideration any related items of income earned
but not received, expenses incurred but not yet paid, liabilities
fixed or contingent, prepaid expenses to the extent not otherwise
reflected in the books of account, and the value of options or
commitments to purchase or sell Securities pursuant to agreements
entered into on or prior to such valuation date. Valuation of
Securities made pursuant to this Section 7.2 must be based on all
relevant factors and is expected to comply generally with the
following guidelines:
(i) The market value of each Security listed or traded on any
recognized U.S. securities exchange is the last reported sale
price at the relevant valuation date on the composite tape or on
the principal exchange on which such Security is traded. If no
such sale of such Security was reported on that date, the market
value is the last reported bid price (in the case of Securities
held long), or last reported ask price (in the case of Securities
sold short). The market value of any Security designated as a
United States Nasdaq National Market Security is determined in
like manner by reference to the last reported sale price or, if
none is available, to the last reported bid price (in the case of
Securities held long), or last reported ask price (in the case of
Securities sold short).
(ii) Dividends declared but not yet received, and rights in
respect of Securities that are quoted ex-dividend or ex-rights,
are recorded at the fair value thereof, as determined by the
General Partner, which may (but need not) be the value so
determined on the day such Securities are first quoted ex-
dividend or ex-rights.
(iii)Listed options, or over-the-counter options for which
representative brokers' quotations are available, are valued in
the same manner as listed or over-the-counter Securities as
hereinabove provided. Premiums for the sale of such options
written by the Partnership are included in the assets of the
Partnership, and the market value of such options is included as
a liability.
(iv) Special Situation Investments are generally valued at
historical cost, subject to the General Partner's discretion to
estimate the fair value of any Special Situation Investment
(except for purposes of calculating the Performance Change with
respect to any Limited Partner other than a Limited Partner
receiving a distribution in kind of such Special Situation
Investment) in accordance with generally accepted accounting
principles.
(b) The fair value of any assets not referred to in paragraph
(a) (or the valuation of any assets referred to therein in the
event that the General Partner determines in
36
its sole discretion that market prices or quotations do not
fairly represent the value of particular assets) is determined
by or pursuant to the direction of the General Partner. In these
circumstances, the General Partner will attempt to use consistent
and fair valuation criteria and may (but is not required to)
obtain independent appraisals at the expense of the Partnership.
In the absence of bad faith or manifest error, the General
Partner's net asset valuations are conclusive and binding on all
Partners.
(c) Except as otherwise determined by or at the direction of the
General Partner, investment and trading transactions are
accounted for on the trade date. Accounts are maintained in U.S.
dollars and except as otherwise determined by or at the direction
of the General Partner: (i) assets and liabilities denominated in
currencies other than U.S. dollars are translated at the rates of
exchange in effect at the close of the Fiscal Period (and
exchange adjustments are recorded in the results of operations);
and (ii) investment and trading transactions and income and
expenses are translated at the rates of exchange in effect at the
time of each transaction.
(d) The value of each Security and other asset of the
Partnership and the net worth of the Partnership as a whole
determined pursuant to this Section 7.2 are conclusive and
binding on all of the Partners and all parties claiming through
or under them.
7.3 Determinations by the General Partner
(a) All matters concerning the determination and allocation
among the Partners of the amounts to be determined and allocated
pursuant to Sections 3.4 through 3.10 hereof, including any taxes
thereon and accounting procedures applicable thereto, are
determined by the General Partner unless specifically and
expressly otherwise provided for by the provisions of this
Agreement, and such determinations and allocations are final and
binding on all the Partners.
(b) The General Partner may make such adjustments to the
computation of any of the memorandum accounts maintained pursuant
to this Agreement, the Performance Change with respect to any
Limited Partner, or any component items comprising any of the
foregoing as it considers appropriate to reflect the financial
results of the Partnership and the intended allocation thereof
among the Partners in a reasonably accurate, fair and efficient
manner.
7.4 Books and Records
(a) The General Partner must keep books and records pertaining
to the Partnership's affairs showing all of its assets and
liabilities, receipts and disbursements, realized income, gains
and losses, Partners' Capital Accounts and all transactions
entered into by the Partnership. Such books and records of the
Partnership must be kept at the Partnership's office or at the
office of an agent of the Partnership.
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(b) Except to the extent provided in Section 7.1, each Limited
Partner agrees that the General Partner is entitled to preserve
the confidentiality of the information contained in the books and
records of the Partnership to the maximum extent permitted by
law, and each Limited Partner waives, and covenants not to
assert, any claim or entitlement whatsoever to gain access to any
such information, including any information relating to any other
Limited Partner or the Partnership's trading activity.
7.5 Confidentiality
(a) Each Limited Partner agrees to keep confidential, and not to
make any use of (other than for purposes reasonably related to
its Interest or for purposes of filing such Limited Partner's tax
returns) or disclose to any Person, any information or matter
relating to the Partnership and its affairs and any information
or matter related to any investment of the Partnership (other
than disclosure to such Limited Partner's directors, employees,
agents, advisors, or representatives responsible for matters
relating to the Partnership or to any other Person approved in
writing by the General Partner (each such Person being
hereinafter referred to as an "Authorized Representative"));
provided that (i) such Limited Partner and its Authorized
Representatives may make such disclosure to the extent that (x)
the information to be disclosed is publicly known at the time of
proposed disclosure by such Limited Partner or Authorized
Representative, (y) the information otherwise is or becomes
legally known to such Limited Partner other than through
disclosure by the Partnership or the General Partner, or (z) such
disclosure is required by law or in response to any governmental
agency request or in connection with an examination by any
regulatory authorities (provided that such agency, regulatory
authorities or association is aware of the confidential nature of
the information disclosed) and (ii) such Limited Partner and its
Authorized Representatives may make such disclosure to such
Limited Partner's beneficial owners to the extent required under
the terms of its arrangements with such beneficial owners. Prior
to making any disclosure required by law, each Limited Partner
must use its best efforts to notify the General Partner of such
disclosure. Prior to any disclosure to any Authorized
Representative or beneficial owner, each Limited Partner must
advise such Authorized Representative or beneficial owner of the
obligations set forth in this Section 7.5(a).
(b) The General Partner has the right to keep confidential from
the Limited Partners, for such period of time as the General
Partner in its sole discretion deems reasonable, any information
which the General Partner in its sole discretion reasonably
believes to be in the nature of trade secrets or other
information the disclosure of which the General Partner in its
sole discretion believes is not in the best interests of the
Partnership or could damage the Partnership or its business or
38
which the Partnership is required by law or agreement with a
third party to keep confidential.
(c) The General Partner may, in its sole discretion, disclose to
any of the Partnership's prospective investors such information
relating to the Partnership or the Partnership's investments as
the General Partner believes in good faith will benefit the
Partnership and facilitate an investment in the Partnership by
such prospective investors.
_____________
Article VIII
General Provisions
_____________
8.1 Amendment of Partnership Agreement
(a) Except as otherwise provided in this Section 8.1, this
Agreement may be amended, in whole or in part, with the written
consent of (i) the General Partner and (ii) Limited Partners
whose Partnership Percentages represent more than fifty percent
(50%) of the aggregate Partnership Percentages of all Limited
Partners.
(b) Any amendment that would:
(i) increase the obligation of such Partner to make any
contribution to the capital of the Partnership,
(ii) reduce the Capital Account of such Partner other than in
accordance with Article III, or
(iii)change the provisions of Sections 3.4 through 3.10, 5.5
or 6.2 to alter any such Partner's rights with respect to
allocations of profit or loss or with respect to distributions
and withdrawals,
may only be made if the prior written consent of each Partner
adversely affected thereby is obtained.
(c) Notwithstanding paragraphs (a) and (b) of this Section 8.1,
this Agreement may be amended by the General Partner, in its sole
discretion, without the consent of the Limited Partners, at any
time and without limitation, if any Limited Partner objecting to
such amendment has an opportunity to withdraw from the
Partnership as of a date determined by the General Partner that
is not less than 45 days after the General Partner has delivered
written notice of such amendment to each Limited Partner and that
is prior to the effective date of the amendment.
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(d) The General Partner in its sole discretion may at any time
without the consent of the other Partners:
(i) add to the representations, duties or obligations of the
General Partner or surrender any right or power granted to the
General Partner under this Agreement, for the benefit of the
Limited Partners;
(ii) cure any ambiguity or correct or supplement any conflicting
provisions of this Agreement;
(iii) make any changes to this Agreement so long as such
changes do not adversely affect the rights or obligations of any
Limited Partner;
(iv) make any changes required by any governmental body or agency
that is deemed to be for the benefit or protection of the Limited
Partners; provided, that no such amendment referred to in this
paragraph (iv) may be made unless it is for the benefit of, or
not adverse to, the interests of the Limited Partners, such
change does not affect the right of the General Partner to manage
and control the Partnership's business, does not affect the
allocation of profits and losses among the Partners, and does not
affect the limited liability of the Limited Partners;
(v) amend this Agreement to reflect a change in the identity of
the General Partner following a transfer of a General Partner's
Interest in accordance with the terms of this Agreement;
(vi) amend this Agreement (other than with respect to the matters
set forth in Section 8.1(b)) to effect compliance with any
applicable law or regulation (including the Investment Advisers
Act of 1940, as amended, and ERISA); and
(vii) restate this Agreement together with any amendments
hereto that have been duly adopted in accordance herewith to
incorporate such amendments in a single, integrated document.
(e) The General Partner must give written notice of any proposed
amendment to this Agreement (other than any amendment of the type
contemplated by clauses (ii), (iii), (v) or (vii) of Section
8.1(d)) to all of the Limited Partners, which notice must set
forth (i) the text of the proposed amendment or (ii) a summary
thereof and a statement that the text thereof will be furnished
to any Limited Partner upon request.
(f) The General Partner has the absolute discretion to agree
with a Limited Partner to waive or modify the application of any
provision of this Agreement with respect to such Limited Partner
without obtaining the consent of any other Limited
40
Partner (other than a Limited Partner who is materially and
adversely affected by such waiver or modification).
8.2 Special Power of Attorney
(a) Each Partner hereby irrevocably makes, constitutes and
appoints the General Partner (and each of its successors and
permitted assigns), with full power of substitution, the true and
lawful representative and attorney-in-fact of, and in the name,
place and stead of, such Partner with the power from time to time
to make, execute, sign, acknowledge, swear to, verify, deliver,
record, file or publish:
(i) an amendment to this Agreement that complies with the
provisions of this Agreement (including the provisions of Section
8.1);
(ii) the Certificate and any amendment thereof required because
this Agreement is amended, including an amendment to effectuate
any change in the membership of the Partnership or in the capital
contributions of the Partners; and
(iii)all such other instruments, documents and certificates
which, in the opinion of legal counsel to the Partnership, may
from time to time be required by the laws of the United States of
America, the State of Texas, or any other jurisdiction in which
the Partnership determines to do business, or any political
subdivision or agency thereof, or which such legal counsel may
deem necessary or appropriate to effectuate, implement and
continue the valid and subsisting existence and business of the
Partnership as a limited partnership or to effect the dissolution
or termination of the Partnership.
(b) Each Limited Partner is aware that the terms of this
Agreement permit certain amendments to this Agreement to be
effected and certain other actions to be taken or omitted by or
with respect to the Partnership without his consent. If an
amendment of the Certificate or this Agreement or any action by
or with respect to the Partnership is taken by the General
Partner in the manner contemplated by this Agreement, each
Limited Partner agrees that, notwithstanding any objection which
such Limited Partner may assert with respect to such action, the
General Partner in its sole discretion is authorized and
empowered, with full power of substitution, to exercise the
authority granted above in any manner which may be necessary or
appropriate to permit such amendment to be made or action
lawfully taken or omitted. Each Partner is fully aware that each
other Partner relies on the effectiveness of this special power-
of-attorney with a view to the orderly administration of the
affairs of the Partnership. This power-of-attorney is a special
power-of-attorney and is coupled with an interest in favor of the
General Partner and as such:
41
(i) is irrevocable and continues in full force and effect
notwithstanding the subsequent death or incapacity of any party
granting this power-of-attorney, regardless of whether the
Partnership or the General Partner has had notice thereof; and
(ii) survives the delivery of an assignment by a Limited Partner
of the whole or any portion of his Interest, except that where
the assignee thereof has been approved by the General Partner for
admission to the Partnership as a substituted Limited Partner,
this power-of-attorney given by the assignor survives the
delivery of such assignment for the sole purpose of enabling the
General Partner to execute, acknowledge and file any instrument
necessary to effect such substitution.
8.3 Notices
Notices which may or are required to be given under this
Agreement by any party to another are given by hand delivery,
transmitted by telecopier facsimile or by registered or certified
mail, return receipt requested, and are addressed to the
respective parties hereto at their addresses as set forth on the
register of Partners maintained by the General Partner or to such
other addresses or facsimile numbers as may be designated by any
party hereto by notice addressed to (i) the General Partner, in
the case of notice given by any Limited Partner, and (ii) each of
the Limited Partners, in the case of notice given by the General
Partner. Notices are deemed to have been given when delivered by
hand or transmitted by telecopier facsimile or on the date
indicated as the date of receipt on the return receipt.
8.4 Agreement Binding Upon Successors and Assigns
This Agreement is binding upon and inures to the benefit of
the parties hereto and their respective successors, but the
rights and obligations of the Partners hereunder are not
assignable, transferable or delegable except as provided herein,
and any attempted assignment, transfer or delegation thereof
which is not made pursuant to the terms hereof is void.
8.5 Governing Law
This Agreement and the rights of the Partners hereunder are
governed by and construed in accordance with the laws of the
State of Texas, without regard to the conflict of laws rules
thereof. The parties hereby consent to exclusive jurisdiction
and venue for any action arising out of this Agreement in Dallas
County, Texas. Each Partner consents to service of process in
any action or proceeding involving the Partnership by the mailing
thereof by registered or certified mail, postage prepaid, to such
Partner's mailing address set forth in the register of Partners
maintained by the General Partner.
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8.6 Not for Benefit of Creditors
The provisions of this Agreement are intended only for the
regulation of relations among Partners and between Partners and
former or prospective Partners and the Partnership. This
Agreement is not intended for the benefit of non-Partner
creditors and no rights are granted to non-Partner creditors
under this Agreement.
8.7 Consents
Any and all consents, agreements or approvals provided for
or permitted by this Agreement must be in writing and a signed
copy thereof must be filed and kept with the books of the
Partnership.
8.8 Merger and Consolidation; Division
(a) The Partnership may merge or consolidate with or into one or
more limited partnerships formed under the Act or other business
entities pursuant to an agreement of merger or consolidation that
has been approved by the General Partner and Limited Partners
whose Partnership Percentages represent more than fifty percent
(50%) of the aggregate Partnership Percentages of all Limited
Partners.
(b) Notwithstanding anything to the contrary contained elsewhere
in this Agreement, an agreement of merger or consolidation
approved in accordance with Section 8.8(a) hereof may (i) effect
any amendment to this Agreement, (ii) effect the adoption of a
new partnership agreement for the Partnership if it is the
surviving or resulting limited partnership in the merger or
consolidation, or (iii) provide that the partnership agreement of
any other constituent partnership to the merger or consolidation
(including a limited partnership formed for the purpose of
consummating the merger or consolidation) is the partnership
agreement of the surviving or resulting limited partnership.
8.9 Miscellaneous
(a) The captions and titles preceding the text of each Section
hereof are disregarded in the construction of this Agreement.
(b) This Agreement may be executed in counterparts, each of
which is deemed to be an original hereof.
(c) The Partners have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, the Partners intend
that this Agreement be construed as if drafted jointly by the
Partners and that no presumption or burden of proof arise
favoring or disfavoring any Partner by virtue of the authorship
of any of the provisions of
43
this Agreement. Any reference to any federal, state, local, or
foreign statute or law is deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires
otherwise. The word "including" means including without limitation.
The word "or" is not exclusive. All words used in this Agreement
are construed to be of such gender or number as the circumstances
require.
(d) The Partners intend that each representation, warranty, and
covenant contained herein has independent significance. If any
Partner has breached any representation, warranty, or covenant
contained herein in any respect, the fact that there exists
another representation, warranty, or covenant relating to the
same subject matter (regardless of the relative levels of
specificity) that such Partner has not breached does not detract
from or mitigate the fact that such Partner is in breach of the
first representation, warranty, or covenant.
(e) If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and
effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
8.10 Entire Agreement
This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining
thereto. It being acknowledged and agreed that the General
Partner on its own behalf or on behalf of the Partnership without
the consent or approval of any other Partner may enter into
written agreements (each, an "Other Agreement") with Limited
Partners, executed contemporaneously with the admission of such
Limited Partners to the Partnership, affecting the terms hereof
in order to meet certain requirements of such Limited Partners.
The parties hereto agree that any terms contained in an Other
Agreement with a Limited Partner govern with respect to such
Limited Partner notwithstanding the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first-above written.
GENERAL PARTNER:
Endurance General Partners, L.P.
By: ▇▇▇▇▇ Asset Management, L.L.C.,
General Partner
By:____________________________
Name:__________________________
Title: Manager
LIMITED PARTNERS:
By: Endurance General Partners, L.P.,
Attorney-in-fact for the Limited Partners
By: ▇▇▇▇▇ Asset Management, L.L.C.,
General Partner
By:____________________________
Name:__________________________
Title: Manager
ORGANIZATIONAL LIMITED PARTNER:
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
45