Exhibit 3.1(bb)(i)
LIMITED PARTNERSHIP
CERTIFICATE AND AGREEMENT
CHECK EXCHANGE LIMITED PARTNERSHIP,
AN ARIZONA LIMITED PARTNERSHIP
This Certificate and Agreement of Limited Partnership (the
"Agreement") dated and effective this 1st day of April, 1988
is made and entered into by and between U.S. CHECK EXCHANGE, INC., an
Arizona corporation (hereinafter "General Partner") as the General
Partner, and GOLF WORLD, INC., a California corporation ("Golf
World"), NATIONAL FINANCIAL EXCHANGE, INC., a California corporation
("NFE"), XXXX X. XXXXXXXXX ("Stratford"), XXXXXX X. XXXXXX ("Buttle"),
AMM DEVELOPMENT, INC., a Corporation ("AMM") as the limited partners
(hereinafter "Limited Partners"). The General Partner and the Limited
Partners may sometimes be referred to herein interchangeably as
"Partner" or "Partners".
WHEREAS, U.S. CHECK EXCHANGE, INC., an Arizona corporation,
holds various assets of a business engaged in the operation of check
cashing and currency exchange and other financial services.
WHEREAS, U.S. CHECK EXCHANGE, INC., an Arizona corporation,
desires to transfer its assets to U.S. CHECK EXCHANGE, an Arizona
limited partnership, as an initial contribution, in exchange for a
general partnership interest therein.
WHEREAS, U.S. CHECK EXCHANGE, INC., an Arizona corporation,
has executed, on even date herewith, a Xxxx of Sale to reflect a
transfer of its assets into U.S. CHECK EXCHANGE, an Arizona limited
partnership, as an initial capital contribution, in exchange for a
general partnership interest therein.
NOW THEREFORE, in consideration of the mutual promises
contained herein, the parties hereto do hereby form a limited
partnership (the "Limited Partnership" or "the Partnership") upon the
following terms and conditions.
ARTICLE I.
DEFINITIONS
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The following terms used in this Agreement shall have the
meanings described below:
1.0A. "Act" shall mean the Arizona Statutes governing
Limited partnerships, and interpretations thereof by Arizona case law,
as now in force or from time to time amended.
1.0B. "Assignee" means a person who has acquired a
Limited Partner's beneficial interest in one or more Partnership Units
and has not become a Substituted Limited Partner.
1.0C. "Capital Account" shall mean each Partner's
Capital Contribution increased by any Additional Capital amended by
him to, and by his share of Net Income from, the Partnership and
decreased by his share of Net Loss and distributions made to him by
the Partnership.
1.0D. "Capital Contribution" shall mean the aggregate of
each Partner's Initial Capital Contributions and any additional
Capital Contributions made by each Partner.
1.0E. "Code" means the Internal Revenue Code of 1954, as
amended.
1.0F. "General Partner" shall mean U.S. CHECK EXCHANGE,
INC., an Arizona corporation, acting in its capacity as General
Partner of the Limited Partnership, or any other person or persons who
succeeds him as General Partner pursuant to the provisions of this
Agreement.
1.0G. "Initial Capital Contribution" shall mean the
capital contribution described in Article 10 hereof.
1.0H. "Limited Partner" shall refer to those persons
executing this Agreement as Limited Partners.
1.0I. "Profits" and "Losses" of the Partnership shall
mean the net profits and net losses of the Partnership as determined
by the certified public accountant serving the Partnership acting in
accordance with generally accepted accounting principles consistently
applied.
1.J. "Partners" shall refer collectively to the General
Partner and to the Limited Partners, and any reference to a "Partner"
shall be to any one of the Partners interchangeably, limited or
general.
1.K. "Partnership" or "Limited Partnership" shall refer to
the Limited Partnership created under this Agreement.
1.L. "Person" shall mean any natural person, partnership,
joint venture, corporation, estate, trust, association, or other legal
entity.
1.M. "Substituted Limited Partner" shall refer to a person
who has received assignment of an interest in the Partnership by a
Limited Partner and who is admitted to the Partnership with all of the
rights of a Limited Partner pursuant to this Agreement and applicable
law.
1.N. "Transfer" when used in connection with a Unit means
any sale, assignment, hypothecation, pledge, encumbrance or any other
disposition thereof to any Person or any grant to any Person of any
interest in or with respect to a unit or any part thereof.
ARTICLE II.
FORMATION AND NAME
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The Partners hereby form a limited partnership (the
"Partnership") pursuant to the provisions of the Act. The name of the
Partnership shall be "U.S. Check Exchange Limited Partnership", an
Arizona limited partnership.
ARTICLE III.
GENERAL CHARACTER OF BUSINESS
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The general character and purpose of the business of the
partnership shall be to engage in the operation of a check cashing and
currency exchange business and to provide other financial services to
customers.
ARTICLE IV.
TERM
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The Partnership shall commence on the date this Agreement is
filed with the Arizona Secretary of State and shall continue for a
period of forty (40) years thereafter unless sooner terminated in
accordance with the terms hereof, or as otherwise provided by law.
ARTICLE V.
SPECIFIED OFFICE
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The Partnership's Specified Office as required by the Act
and principal place of business shall be at 00000 Xxxx Xxxxxxxxx
Xxxx., Xxxxxxx, Xxxxxxxxxx 00000, or at such other place as the
General Partner may, upon five days' prior notice to the Limited
Partners, designate from time to time.
ARTICLE VI.
SPECIFIED AGENT
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The Specified Agent for service of process upon the
Partnership as required by the Act is Xxxxx X. Xxxxx, whose
address is 0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000.
ARTICLE VII.
NAMES AND BUSINESS ADDRESSES OF PARTNERS
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The name and business address of the General Partner and
each Limited Partner in paragraph 20.01 hereof.
ARTICLE VIII.
POWER OF ATTORNEY
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8.0A. General Partner as Attorney-in-Fact. All Limited
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Partners, individually and collectively, irrevocably constitute and
appoint the General Partner as their true and lawful attorney-in-fact
and empower the General Partner to act for and in their place, name,
and stead to execute, acknowledge, record, deliver, publish, and file,
as may be necessary, this Agreement and certificate, and any
amendments, modifications, or cancellations thereto, which may be
required to effectuate the dissolution and termination of the Limited
Partnership, or any other instruments which the Partnership may be
required to file under the laws of the State or the regulations of any
government agency. If the General Partner so requests, each Partner
shall execute and acknowledge any amendment or modification of this
Agreement and Certificate and such other documents as are required
under the Act or otherwise by law or regulation and are approved by
the Limited Partnership.
8.0B. Power of Attorney Irrevocable. Each Limited Partner
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acknowledges that the foregoing power of attorney is coupled with an
interest, is irrevocable, and shall survive both the death of any
Limited Partner and/or any assignment by any Limited Partner of his or
her interest.
ARTICLE IX.
TITLE TO PROPERTY
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Title to any Partnership property shall be held in the name
of the Partnership.
ARTICLE X.
CAPITAL CONTRIBUTIONS
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10.0A. Initial Capital Contributions.
1. General Partner. The General Partner shall make an
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Initial Capital Contribution to the Partnership equal to the assets
identified in the Xxxx of Sale and Assignment attached hereto as
Exhibit "A".
2. Limited Partners. The Limited Partners shall make the
following Initial cash Capital Contributions:
Name of Limited Partner Capital Contribution
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Golf World, Inc. $5,000.00
Xxxx X. Xxxxxxxxx 865.00
NFE 865.00
Xxxxxx Xxxxxx 238.00
AMM Development, Inc. 2,883.00
10.0B. Limited Partner's Liability. The Limited Partners
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shall not be liable for any of the debts, obligations,
or liabilities of the Partnership beyond their contributions of
capital. The Limited Partners shall make an initial contribution to
the capital of the Partnership as identified in paragraph 10.01. The
partners agree that each Limited Partner shall contribute equally such
additional sums as the Partnership may require during the term of the
Agreement to meet its cash needs.
Each Limited Partner shall make any additional capital
contributions to the Partnership no later than ten (10) days following
notice from the General Partner than an additional capital
contribution is required for the Partnership to continue meetings its
business needs. The Partners also acknowledge that additional capital
contributions may be necessary, at the discretion of the General
Partner, for each new business location that is opened by the
Partnership. In the event that additional contributions are made, the
interests of the Partners in the Partnership will be adjusted to
reflect such contributions. No Limited Partners shall be obligated to
make any additional contributions. However, all funding required for
acquisition and expansion of new business locations will be obtained
either from:
1. loans to the Partnership by the General Partner at an
interest rate on terms and conditions agreeable to the Partners
and/or;
2. a line of credit obtained by the General Partner,
secured by Partnership assets, on terms and conditions agreeable to
the Partners.
10.0C. General Partner's Liability. The General Partner
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shall have the same liability for Partnership obligations, debts, and
liabilities as would a General Partner in a General Partnership.
10.0D. No Interest On Contributions. No Partner shall
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receive any interest on any Capital Contribution.
10.0E. Withdrawal of Capital. No Partner may withdraw any
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part of his capital account or receive any distribution from the
Partnership except as provided herein.
ARTICLE XI.
ALLOCATION OF PROFITS AND LOSSES
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11.0A. Capital Accounts.
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1. Each Partner shall have a capital account equal to:
a. The amount of his capital contributions to the
partnership pursuant to this Agreement;
b. Plus an amount of income received from the Partnership,
allocated between the Partners in accordance with paragraph 11.02
hereof;
c. Less the amount of losses and other expenses of the
Partnership allocated to the Partners in accordance with paragraph
11.02 hereof;
d. Less all amounts distributed to the Partners pursuant
to this Agreement (excluding amounts distributed in repayment of
principal or interest of loans to the Partnership by the Partners and
amounts payable to the Partners as consultant fees).
2. No limited partner shall be obligated to contribute
capital to his capital account.
3. Loans by a Partner to the Partnership shall not be
considered contributions to the capital of the Partnership and shall
not increase the capital account of the lending Partner, nor shall the
repayment of principal or interest of such loans reduce the capital
account of the lending Partner. Nothing herein shall authorize any
loan by a Partner to the Partnership unless otherwise authorized
pursuant to the other provisions of this Agreement.
11.0B. Profits and Losses. Profits and losses of the
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Partnership shall be allocated proportionately between the partners,
ninety nine percent (99%) to the Limited Partners as follows:
Golf World 50.00%
Stratford 8.65%
NFE 8.65%
Buttle 2.88%
AMM Development, Inc. 28.83%
and one percent (1%) to the general partner U.S. CHECK EXCHANGE, INC.,
an Arizona corporation.
11.0C. Tax Treatment. The partners recognize that part of
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the gains recognized upon a sale or other disposition of Partnership
properties may be treated for federal income tax purposes (as a result
of the application of Sections 1245 or 1250 of the Internal Revenue
Code) as a gain from the sale, exchange, or other disposition of an
asset which is neither a capital asset nor property described in
Section 1231 of the Internal Revenue Code ("Depreciation Recapture").
The Partners agree that, to the extent possible, without increasing
the total gain on such transactions allocated to a Partner in a
particular calendar year, the Depreciation Recapture will be allocated
among the partners in the proportion to their percentage interest in
profits and losses of the Partnership.
11.0D. Distribution of Profits and Losses. At least
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annually, the Partnership shall distribute to the Limited Partners so
much of the cash of the Partnership as is not reasonable necessary for
the efficient operation of the business of the Partnership including,
but not limited to, debt service and business expansion.
Fifty Percent (50%) of the annual net profits of the
Partnership for any fiscal year of the Partnership shall be
distributed to the Limited Partners. Each distribution of profits
shall be made in accordance with the percentages set forth in
paragraph 11.02 hereof.
ARTICLE XII.
NONCOMPETITION
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12.0A. Non-competition Agreement. During the term of this
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Agreement and for the longer of (a) one year from termination of this
Agreement or (b) two and one-half years from the date of execution of
this Agreement, no Limited Partner, nor any person or entity directly
or indirectly owning any interest in any Limited Partner or the
General Partner nor any entity in which any of the foregoing has a
direct or indirect ownership interest shall, without the prior consent
of the General Partner shall own, be employed by, render service to,
make loans to, or otherwise be involved in, any business, other than
the Partnership, providing or involved in the business of cashing
checks or providing any other financial service which the Partnership
has provided or may provide to its customers. The General Partner
shall have no right to deny its consent under the preceding sentence
if all of the following conditions are met: (a) the person or entity
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seeking consent agrees in writing to a license agreement with Any Kind
Check Cashing Centers, Inc.
identical to the franchise agreement attached hereto as Exhibit "A"
and (b) the requested consent is limited to a geographical area in
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which none of the Partnership, Any Kind Check Cashing Centers, Inc.,
or any affiliates, subsidiaries or licensees of those entities is then
conducting a check cashing business or has previously articulated a
plan to open a check cashing business within six (6) months from the
date of articulating the plan and (c) the request included a binding
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right of first refusal in favor or Any Kind Check Cashing Centers,
Inc. allowing Any Kind Check Cashing Centers, Inc. to match any
financial or other business transactions offered by third parties to
the requesting person or entity relating to the check cashing
business.
12.0B. Geographical Scope. None of the persons or entities
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bound by the provisions of section 12.01 shall open any place of
business for cashing checks or provide other financial services under
any trade name used by the Partnership within a five (5) mile radius
of a previously opened business location of the Partnership or of any
other person bound by the provisions of section 12.01 which uses the
trade name. This non-competition clause shall apply to all activities
and businesses within the United States of America. This section
shall survive the termination of this Agreement and shall be binding
until such time as all partners agree otherwise.
12.0C. Prohibition On Use of Name. None of the persons or
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entities bound by the provisions of section 12.01 shall open any place
of business under the name of Any Kind Check Cashing Centers, Any Kind
Check, Any Kind, American Check Exchange, or American Check, any name
to which any other person has an exclusive right to use under
applicable state or federal law, or any name confusingly similar to
such protected names. None of the persons or entities bound by the
provisions of section 12.01 shall cause the Partnership to violate any
provisions of any franchise agreement that the Partnership will enter
into with Any Kind Check Cashing Centers, Inc., an Arizona
corporation.
12.0D. Remedies. All signatories hereto agree that any
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violation by any of them or any covenant contained in this Article 12
will cause irreparable harm, leaving no adequate remedy at law to the
other parties hereto and, for that reason, all signatories hereto
agree that any aggrieved party shall be entitled to an injunction from
any court of competent jurisdiction restraining further violation of
such covenant. The right to an injunctive remedy shall be in addition
to all rights and remedies otherwise available to the aggrieved party
at law or in equity, including but not limited to the recovery of
monetary damages, whether compensatory or punitive.
ARTICLE XIII.
FISCAL YEAR
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The fiscal year of the Partnership shall end on December 31.
ARTICLE XIV.
MANAGEMENT AND BUSINESS POLICIES
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14.0A. Management of the Partnership. Except as otherwise
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provided in this Agreement, the General Partner shall have the sole
and exclusive right to make all decisions for the Partnership in
respect of the Partnership's business and for overseeing the day-to-
day operations thereof and shall perform such other functions and have
such other responsibilities as are expressly assigned to it in this
Agreement. The Limited Partners shall take no part in the management
of the Partnership, shall have no power to sign for or bind the
Partnership, and, except where expressly provided otherwise in this
Agreement, no consent or approval of the Limited Partners shall be
required for any management decision made by the General Partner
concerning the business of the Partnership.
14.0B. General Partner's Powers. Notwithstanding anything
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contained in the Act, the General Partner shall have the sole right to
make the following decisions or to take the following actions on
behalf of the Partnership without the consent of the Limited Partners:
1. Acquire any real or personal property necessary for the
conduct of the Partnership business;
2. Borrow money and as security therefor to mortgage,
pledge, or otherwise place liens upon all or part of any property of
the Partnership;
3. Make any election required or permitted to be made
under the Code for Federal Income tax purposes and under the income
tax laws of the State of Arizona; provided, however, that if any such
tax election has an adverse impact on the Limited Partners with a
concurrent positive effect on the General Partner, then the consent of
the Limited Partners shall be required with respect to any such
election. Without limiting the foregoing, the General Partner is
hereby appointed on behalf of the Limited Partners as the "tax matters
partner" under subchapter C of Chapter 63 of Subtitle A of the Code
and, in addition, shall have the power and authority to consent, on
behalf of al the Partners, to any determination by the Internal
Revenue Service to disallow any deductions, creditors, or their
allowances claimed by the Partnership or include in Partnership gross
income an item of income or gain which the General Partner had
determined is not properly the income or gain of the Partnership;
4. Settle any dispute or litigation involving the
Partnership;
5. Change the accounting processes or procedures employed
in keeping the books of account or financial statements with respect
to the operation or management of the Partnership;
6. Employ on behalf of the Partnership and at the
Partnership's expense, and upon such terms and for such compensation
as the General Partner shall determine, such persons, firms, or
corporations the General Partner, in its sole discretion, deems
advisable to carry cut the Partnership's purposes;
7. Reimburse itself for expenses, including reasonable
attorneys' fees, incurred in the conduct of the Partnership's business
provided, however, such expenses shall not be in excess of the amount
customarily paid in Los Angeles County, California, for like services.
The burden of establishing that any such expenses are reasonable shall
be upon the General Partner;
8. Employ attorneys, accountants, and others to prosecute
or defend claims by or against the Partnership or affecting title to
any Partnership properties;
9. Offer Partnership property for sale upon such terms and
conditions as the General partner deems reasonable and appropriate;
10. In addition to the specific rights and powers herein
granted, the General Partner shall possess and may enjoy and exercise
all of the rights and powers of general partners as
are more particularly provided by the Act, except to the extent that
any such rights may be limited or restricted by the express provisions
of this Agreement;
11. Make, execute, or deliver any deed to or agreement to
sell or assign all or any part of the Partnership properties;
12. Sell, transfer or assign any part of or all of the
Partnership assets.
14.0C. Limitation of General Partner's Powers.
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Notwithstanding anything to the contrary contained in this Agreement,
the General Partner may not without the consent of the partners
holding seventy percent (70%) or more of the profits and loss,
percentage of the partnership as set forth in paragraph 11.02 of this
Agreement:
1. Do any act in contravention of this Agreement;
2. Do any act which would make it impossible to carry on
the business of the Partnership;
3. Use or assign the right or the Partnership in any of
its properties for other than a Partnership purpose;
4. Make, execute or deliver any deed to, or agreement to
sell all or any of the Partnership properties;
5. Execute, deliver, or alter, or otherwise change, any
loan, commitment, note or mortgage;
6. Borrow or lend money or encumber or use as collateral
any of the Partnership properties except as expressly permitted by
this Agreement;
7. Execute contracts on behalf of the Partnership for
anything other than a Partnership purpose;
8. Alter or amend any provisions of this Agreement;
9. Assign, transfer, or pledge any debts due the
Partnership or release any debts due except on payment in full;
10. Compromise any claim due to the Partnership or submit
to arbitration any dispute or controversy involving the Partnership;
11. Sell, transfer, or assign all or substantially all of
the Partnership assets.
14.0D. Compensation of General Partner. The General
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Partner shall receive, as compensation for services to the
Partnership, one percent (1%) of the net profits of the Partnership.
14.0E. Other Businesses. The General Partner shall devote
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its best efforts and such time as is reasonably necessary to the
management of the Partnership and is prohibited from engaging in
businesses of any nature or description, independently or with others,
which compete directly or indirectly with the Partnership.
ARTICLE XV.
DUTIES OF GENERAL PARTNER
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15.0A. Books and Records. The General Partner shall cause
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to be maintained, at the Partnership's expense, complete and accurate
books of the Partnership at 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxxxx,
Xxxxxxxxxx 00000, or the partnership's principal place of business,
showing all receipts and expenditures, assets and liabilities, income
and loss, and all other records necessary for recording the
Partnership's business and affairs, including a Capital Account for
each Partner. The books of the Partnership shall be kept on a cash
basis and shall be open to inspection, examination, and copying by the
Partners during normal business hours.
15.0B. Bank Accounts. The General Partner shall open and
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maintain in the Partnership's name a Partnership bank account or
accounts, in which shall be deposited all Partnership funds and only
Partnership funds. The funds in the Partnership bank accounts shall
be used solely for the business of the Partnership. Withdrawals from
any Partnership bank account may be made by check or other withdrawal
forms signed by such person or persons as the General Partner may
designate.
15.0C. Reports. The General Partner shall prepare or cause
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to be prepared at the Partnership's expense and deliver to each
Partner:
1. As promptly as practicable and, in any event, within
one hundred and twenty (120) days after the end of each fiscal year, a
balance sheet of the Partnership activities for such year, a statement
of each Partner's Capital Account, a statement of profits and losses
and the sources and applications of monies of the Partnership for such
year, all in reasonable detail, and prepared by a public accountant
selected by the General Partner, together with a statement of such
accountant showing the amount of income, loss, gain, and other items
allocable to each Partner for federal income tax purposes.
2. From time to time, and with reasonable promptness, such
further information available to the General Partner in respect of the
business, affairs and financial condition of the Partnership as any
Partner may reasonable request.
15.0D. Right to Accounting. On demand by any partner, at
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reasonable time sand intervals, an accounting shall be made by a CPA
firm of the choice of the Partner so demanding the accounting, the
costs thereof to be paid by the Partnership. If such demand is made
more than once in any fiscal year, the costs thereof shall be paid by
the Limited Partners so demanding the same. The accounting shall be
distributed, when completed by the accountant, to all the Partners.
Each Partner shall promptly notify the Partnership in writing of his
approval or disapproval of such accounting within thirty (30) days
after receipt thereof.
Any Partner's failure to disapprove such accounting within thirty (30)
days after receipt shall be considered approval of all matters
disclosed in such statements and such approval shall be binding and
conclusive on all Partners so approving and any person claiming an
interest in the Partnership by or through such Partner.
15.0E. Tax Matters. The General Partner shall cause to be
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prepared at the Partnership's expense and shall timely file all income
tax returns of the Partnership and shall furnish a copy thereof to
each Partner promptly after the filing thereof.
ARTICLE XVI.
EXPENSES
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All of the Partnership's expenses shall be paid by the
Partnership. The costs and expenses payable by the Partnership
include, without limitation, legal and accounting fees, insurance
premiums, taxes, financing costs, organizational costs, and any
brokerage or other fees in connection with sales of partnership
property.
ARTICLE XVII.
DISSOLUTION AND LIQUIDATION
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17.0A. Dissolution. The Partnership shall be dissolved
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upon the occurrence of any of the following events:
1. The expiration of the term specified in Article 4 of
this Agreement;
2. Unanimous consent of all the partners, in writing;
3. The General Partner is removed, resigns, dies, becomes
incapacitated, is adjudged bankrupt, files a petition in bankruptcy,
makes an assignment for the benefit of creditors, or is dissolved,
unless in each case the Limited Partners unanimously elect to continue
as a limited partnership and chose a new General Partner in accordance
with Article 19;
4. The Partnership has disposed of all or substantially
all of its assets and any property acquired in exchange for such
assets;
5. The occurrence of any other event which results in
dissolution of the Partnership under Arizona law.
17.0B. Liquidation and Final Distribution. Upon the
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dissolution of the Partnership under Section 17.01, the General
Partner shall be the Liquidating Partner. If the Dissolution is
caused by an act or circumstance specified in Section 17.01(c), the
Limited Partners shall elect a Liquidating Partner with the approval
of seventy-five percent (75%) or more of the Limited Partnership
interests. The Liquidating Partner shall proceed promptly to wind up
the affairs and business of the Partnership, and shall sell all assets
of the Partnership in a commercially reasonable manner. The Partners
shall continue to share profits and losses during the winding-up in
the same proportion as before
winding-up. Upon the winding-up of the Partnership, the Partnership
assets shall be distributed as follows:
1. To Creditors, including Partners who are creditors to
the extent permitted by law, in satisfaction of liabilities of the
Limited Partnership, other than liabilities for interim distributions
to Partners provided in A.R.S. Section 29-331 and liabilities for payments
on withdrawal provided in A.R.S. Section 29-334;
2. To Partners and former Partners in satisfaction of
liabilities as creditors not provided for above;
3. To the establishment of any reserves which the
Liquidating Partner may deem necessary for any contingent or
unforeseen liabilities or obligations of the Partnership. Any
remaining balance of such reserves after such period as the
Liquidating Partner in his or her reasonable judgment deems advisable,
shall be distributed in the manner set forth below.
4. To Partners for the return of their contributions to
capital.
5. To Partners in proportion to their percentage rights to
profits and losses of paragraph 10.01.
17.0C. Tax Matters on Dissolution. Any gain or loss on
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disposition of Partnership properties during the winding up process
shall be credited or charged to the Partners in the proportion of
their percentage interest in profits and losses of
paragraph 11.02. Unless otherwise agreed by all Partners, Partnership
property shall be sold for cash at the best available price. If
property is distributed in kind, it shall be valued as though the
property were sold and the cash proceeds distributed. The difference
between the value of property distributed in kind and its book value
shall be treated as a gain or loss on sale of the property and shall
be credited or charged to the Partners in the proportion of their
percentage interest in profits and losses of paragraph 11.01.
17.0D. Payment of Debit Balances. Upon completion of the
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winding up process, any debit balance in a Partners income account
shall represent an obligation from that Partner to the other Partners
to be paid in cash within thirty (30) days after written demand by the
other Partners.
ARTICLE XVIII.
TRANSFER OF UNITS AND CONVERSION
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18.0A. Transfers of Limited Partner's Units. No Limited
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Partner may transfer less than his entire interest owned by him, and
no Limited Partner shall sell, transfer, assign, pledge, mortgage, or
otherwise dispose of or encumber his interest in the Partnership
without the prior written consent of the General Partner, except under
the terms of paragraphs 18.04 and 18.05 hereof. Any action taken by a
Limited Partner in
violation of this Section shall be null and void as against the
Partnership or any Partner.
18.0B. Substituted Limited Partner. No Assignee of a
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Limited Partner shall have any rights with respect to the Partnership
unless the Assignee becomes a Substituted Limited Partner in
accordance with this Agreement. If the General Partner and all the
Limited Partners consent to a transfer of a Limited Partner's interest
in writing, an Assignee of a Limited Partner shall become a
Substituted Limited Partner in the Partnership only if and when he
agrees in writing to accept and assume all the terms and provisions of
this Agreement, has executed an Amendment to this Agreement and
Certificate of Limited Partnership and the amendment to this Agreement
and certificate is filed with Arizona Secretary of State. All costs
and expenses incurred by the Partnership in connection with the
transfer of his interest and the substitution of a person as a Limited
Partner, including any filing, recording, or publishing costs and the
fees and disbursements of counsel shall be paid by the substituted
Limited Partner. Failure of an assignee to agree to perform said acts
and pay said costs, shall render such assignee as having only the
rights as an assignee of a Limited Partner's Interest, as are provided
in the Act, and not as a substituted Limited Partner.
18.0C. Transfers by General Partner. The General Partner
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may not transfer its Partnership interest or admit an additional
General Partner without first procuring the prior unanimous written
consent of all the Limited Partners, which consent may be withheld by
the Limited Partners in their sole and absolute discretion.
Notwithstanding the unanimous consent of all of the Limited Partners,
the Substitute General Partner or additional General Partner must
accept and assume all of the terms and provisions of this Agreement.
Failure to so agree or perform said acts by the Substitute General
Partner or additional General Partner renders the transfer or
admission null and void without force or effect. In the case of a
corporation substituted General Partner, a certified copy of the
resolution of its Board of Directors authorizing it to become a
General Partner under the terms and provisions of this Agreement must
be furnished.
18.0D. Right of Corporate Limited Partner to Transfer.
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Notwithstanding any of the provisions of Section 18, any Limited
Partner that is a corporation may, without the consent of the other
Partners, transfer all or any portion of its limited partnership
interest in the Partnership to any individual, noncorporate person,
holding an interest, as of the date of execution of this Agreement, in
said transferor Limited Partner,
if the transferee agrees in writing to be bound by all of the terms of
this Agreement to the same extent as his transferor.
18.0E. Right of First Refusal. Notwithstanding the
----------------------
provisions of Section 18, a Limited Partner may sell, transfer, or
assign its limited partnership interest in the Partnership, without
the prior written consent of the other Partners, if the other partners
fail to exercise their right of first refusal granted in this section
and provided the proposed transfer is to a bona fide offeror. A
Limited Partner desiring to dispose of all or any portion of his
interest in the Partnership ("Transferor Partner") shall give written
notice to the other Partners the identity of the proposed transferee
and all of the other terms and conditions of the proposed disposition.
A bona fide offeror shall be a person or entity financially capable of
carrying out the terms of the offer. Such notice shall constitute an
irrevocable offer by the Transferor Partner to sell the Partnership
interest to the other Partners at the same price and on the same
terms and conditions offered by the prospective transferee. The
Partners receiving the notice shall have forty five (45) days after
receipt of the notice within which to notify the Transferor Partner in
writing of their election to purchase or acquire the offered interest
in the Partnership. If more than one Partner elects to purchase the
offered interest in the Partnership, such accepting Partners shall
purchase the offered
Partnership interest on a pro-rata basis based upon the accepting
partners respective percentage interest in profits and losses of
paragraph 10.01 hereof. If no Partner elects to purchase the offered
partnership interest within the applicable time period, the Transferor
Partner may dispose of the offered Partnership interest to the
prospective transferee on the same terms and conditions specified in
the notice at any time within sixty (60) days following the forty
fifth (45th) day after the other Partners received the offering
Partner's notice. Failure to close the consummate the transaction
with the prospective transferee within said sixtieth (60th) day
following the forty fifth (45th) day after the other Partners received
notice shall cause the offer to be null and void, thereby requiring
the parties to comply with all the terms of this paragraph as if the
offer had never been made. Any offered Partnership interest disposed
of shall continue to be subject all of the provisions of this
Agreement and each transferee shall, prior to a transfer, and as a
condition to its validity, execute and deliver to the Partnership a
valid and binding agreement to comply with the terms hereof.
ARTICLE XIX.
REMOVAL AND WITHDRAWAL OF THE GENERAL PARTNER
---------------------------------------------
19.0A. Removal. The General Partner may be removed only by
-------
vote of the Limited Partners holding a 51% interest in
the profits and losses of the Partnership. If the General Partner is
removed, the Partnership shall be dissolved unless the Limited
Partners elect its continuance as provided in Section 19.02 below.
19.0B. Withdrawal of General Partner. If the General
-----------------------------
Partner is removed, resigns, dies, becomes incapacitated, dissolves,
petitions or is the subject of a petition in bankruptcy, or is
adjudged bankrupt, all of which shall constitute an event of
withdrawal, the Partnership shall dissolve. The Partnership shall
thereafter proceed to wind up its affairs unless the Limited Partners
(excluding the withdrawn General Partner) unanimously consent, within
ninety (90) days of the date of an event of withdrawal described
above, to continue the business of the Partnership and to appoint a
Substitute General Partner. Thereafter, notwithstanding the
provisions of Article 19.01, the affairs of the Partnership shall be
continued by the Substitute General Partner as a continuing Limited
Partnership bound by the terms of this Agreement. The continuing
Limited Partnership shall automatically succeed to all of the assets
of the Partnership without further act of the Partners.
19.0C. Former General Partner as Limited Partner. Upon the
-----------------------------------------
removal of the General Partner, and the election by the Limited
Partners to continue the Partnership, the removed General Partner
shall thereafter hold his Partnership interest, if any,
as a Limited Partner and shall take no further part as a General
Partner in the business of the Partnership. This Agreement shall be
immediately amended to show that such Partner has become a Limited
Partner, and upon the filing of such Amendment, the former General
Partner shall succeed to all of the rights of a Limited Partner
hereunder. The former General Partner shall remain personally liable
for all Partnership obligations incurred while it was a General
Partner.
ARTICLE XX.
MISCELLANEOUS
-------------
20.0A. Notices. All notices, requests, statements, or
-------
other communications required or permitted to be given or furnished
hereunder to a Partner shall be in writing and shall be deemed to have
been properly given or made if hand-delivered or sent by registered
mail, postage prepaid, addressed to the Partner at his address set
forth herein, or at such other address or addresses as a partner may
from time to time designate by notice to the General Partner.
U.S. Check Exchange, Inc., an
Arizona corporation
Xx. Xxxxxx Xxxxxxxx
00000 Xxxx Xxxxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
Golf World, Inc., a California
corporation
Xx. Xxxxxx Xxxxxxxx
00000 Xxxx Xxxxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
Xx. Xxxx Xxxxxxxxx
X.X. Xxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
National Financial Exchange, Inc.
X.X. Xxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxxx
00000 Xxxx Xxxxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
AMM Development, Inc.
Mr. Xxxxxx Xxxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
20.0B. Headings. The headings herein are for convenience
--------
or reference only and shall not affect the meaning or construction
hereof.
20.0C. Severability. Every provision of this Agreement is
------------
intended to be severable. If any term or provision hereof is illegal
or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity of the remainder of this Agreement.
20.0D. Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of Arizona.
20.0E. No Oral Modification. This Agreement may not be
--------------------
changed, terminated, or modified orally or in any manner other than by
a writing signed by all the Partners.
20.0F. Binding on Successors and Assigns. This Agreement
---------------------------------
shall inure to the benefit of and shall be binding upon the successors
and assigns of each of the parties hereof.
20.0G. Cumulative Rights and Remedies. The rights and
------------------------------
remedies provided by this Agreement are cumulative and the use of any
one right or remedy by any Partner shall not preclude or waive his
right to use any or all other remedies. Such rights and remedies are
given in addition to any other rights the Partners may have by law.
20.0H. No Waiver. No waiver by any Partner of any breach
---------
of this Agreement shall constitute a waiver of any other or future
breach of this Agreement.
20.0I. Gender. The use of the masculine gender shall
------
include the feminine and neuter, and the singular shall include the
plural, and vice-versa, where the context so requires.
20.J. Counterparts. This Agreement may be signed in
------------
counterparts and shall have the same force and effect as if all
parties executed one document.
20.K. Attorneys Fees. In the event any partner finds it
--------------
necessary to bring an action at law or other proceedings against any
other part to this Agreement to enforce any of the
terms, covenants, and conditions hereof, or by reason of any breach or
default hereunder, the party prevailing in any such action or other
proceeding shall be paid by the other part all costs, fees, and
expenses incurred including without limitation, reasonable attorneys'
fees, accounting fees, and costs. In the event any judgment is
secured by such prevailing party, all such costs shall be included in
the judgment.
20.L. Amendment. This Agreement shall not be mended,
---------
altered, changed, or modified except by a written instrument executed
by all partners as of the time of such alteration, amendment, or
modification.
20.M. Entire Agreement. This Agreement contains the entire
----------------
understanding and agreement of the partners with respect to all
matters referred to herein, and all prior negotiations and
understandings are hereby merged into this Agreement. No warranties,
representations, or agreements have been made by any of the partners
except as are contained herein. Without limiting the generality of
the foregoing, each of the partners expressly acknowledges and
confirms that no warranties or representations whatsoever have been
made by any person as to the profits or losses, if any, which may be
derived or suffered by the Partnership or to the amounts, if any,
which may be received hereunder, and that entering into this Agreement
each of them is relying entirely upon his own investigation and good
judgment.
IN WITNESS WHEREOF, the Parties hereto have duly executed
this Agreement as of the day and year first above written.
GENERAL PARTNER: U.S. CHECK EXCHANGE, INC.,
an Arizona corporation,
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Its President
---------------------------------
LIMITED PARTNERS: GOLF WORLD, INC.
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Its President
---------------------------------
NATIONAL FINANCIAL EXCHANGE, INC.
By /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Its President
---------------------------------
/s/ Xxxx X. Xxxxxxxxx
----------------------------------------
XXXX X. XXXXXXXXX
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
XXXXXX X. XXXXXX
AMM DEVELOPMENT, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Its: President
---------------------------------
STATE OF CALIFORNIA )
) ss.
County of Los Angeles )
The foregoing instrument was acknowledged before me this
1st day of April, 1988, by U.S. Check Exchange, Inc., an
Arizona corporation by Xxxxxx X. Xxxxxxxx its President.
[SEAL] [signature illegible]
----------------------------------------
Notary Public
My Commission Expires:
May 26, 1990
-------------------------
STATE OF CALIFORNIA )
) ss.
County of Los Angeles )
The foregoing instrument was acknowledged before me this
1st day of April, 1988, by Golf World, Inc. by
Xxxxxx X. Xxxxxxxx its President.
[SEAL] [signature illegible]
----------------------------------------
Notary Public
My Commission Expires:
May 26, 1990
-------------------------
STATE OF CALIFORNIA )
) ss.
County of Los Angeles )
The foregoing instrument was acknowledged before me this
1st day of April, 1988, by National Financial Exchange, Inc.
by Xxxx Xxxxxxxxx its President.
[SEAL] [signature illegible]
----------------------------------------
Notary Public
My Commission Expires:
May 26, 1990
-------------------------
STATE OF CALIFORNIA )
) ss.
County of Los Angeles )
The foregoing instrument was acknowledged before me this
1st day of April, 1988, by Xxxx Xxxxxxxxx.
[SEAL] [signature illegible]
----------------------------------------
Notary Public
My Commission Expires:
May 26, 1990
-------------------------
STATE OF CALIFORNIA )
) ss.
County of Los Angeles )
The foregoing instrument was acknowledged before me this
1st day of April, 1988, by Xxxxxx X. Xxxxxx.
[SEAL] [signature illegible]
----------------------------------------
Notary Public
My Commission Expires:
May 26, 1990
-------------------------
STATE OF CALIFORNIA )
) ss.
County of Los Angeles )
The foregoing instrument was acknowledged before me this
1st day of April, 1988, by AMM DEVELOPMENT INC., By:
Xxxxxx Xxxxx, Its: President.
[SEAL] [signature illegible]
----------------------------------------
Notary Public
My Commission Expires:
May 26, 1990
-------------------------
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