AGREEMENT OF LIMITED PARTNERSHIP
OF
FIRST DICE ROAD COMPANY,
A CALIFORNIA LIMITED PARTNERSHIP
THIS AGREEMENT of Limited Partnership, made as of The 1st
day of June, 1985 by and among WESTERN MAGNESIUM CORP., a California
corporation, having an office at 0000 Xxxx Xxxx, Xxxxx Xx Xxxxxxx, Xxxxxxxxxx,
00000-0000 (the "General Partner"); XXXX XXXXXXXX, residing at 000 Xxxx 000xx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and XXXXXX X. XXXXXXX, residing at 000
Xxxxxxx Xxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, and XXXXX 0. XXXXXXXX, residing
at 000 Xxxxxxx Xxxx Xxxx, Xxx Xxxx, X.X. 00000 (as "Limited Partners").
WITNESSETH
NOW, THEREFORE, it is mutually agreed that:
1. Formation, Name and Office.
a. The parties hereto hereby agree to form a limited
partnership (the "Partnership") and to conduct the Partnership business, under
the name of First Dice Road Company, a California Limited Partnership, as a
limited partnership under and pursuant to the provisions of the California
Revised Limited Partnership Act (the "Act"). The principal office of the
Partnership shall be maintained
at 0000 Xxxx Xxxx, Xxxxx Xx Xxxxxxx, Xxxxxx of Los Angeles, State of
California, or at such other location as the General Partner may from time to
time select, upon 30 days prior written notice to the Limited Partners.
b. Certificate. The General Partner shall immediately
execute a Certificate of Limited Partnership and cause that Certificate to be
filed in the office of the Secretary of State of California. Thereafter, the
General Partner shall execute and cause to be filed certificates of amendment
of the Certificate of Limited Partnership whenever required by the Act or this
Agreement. The General Partners shall execute and cause to be filed original
amended certificates evidencing the formation and operation of the Partnership
whenever required under the laws of any other states in which the Partnership
determines to do business. The General Partner shall also record a certified
copy of the Certificate and any amendment thereto in the office of the county
recorder in every county in which the Partnership owns real property.
2. Definitions.
a. Partners. The term "Partners" as used in this Agreement
shall refer collectively to the General Partner and Limited Partners and any
additional or substitute Limited Partner or General Partner of the
Partnership. The term "Partner" shall refer to any one of the Partners.
b. Limited Partners. The term "Limited Partners"
shall refer to Xxxx Xxxxxxxx, Xxxxxx X. Xxxxxxx, and Xxxxx X. Xxxxxxxx so long
as they or any of them are Limited Partners, and any additional or substitute
Limited Partner who is admitted to the Partnership and has executed this
agreement and been named in an amendment to the Certificate. The term "Limited
Partner" shall refer to any of the Limited Partners.
c. General Partner. The term "General Partner" shall refer
to Western Magnesium Corp. and any successor to such General Partner and any
additional or substitute General Partner named in any amendment to the
Certificate.
d. Partnership Interest. The term "Partnership Interest"
shall refer to the entire ownership interest (which may be expressed as a
percentage) of a Partner in the Partnership at any particular time, including,
without limitation, the right of such Partner to participate in the
Partnership's "Profits and Losses", "Distributable Cash" and any and all
benefits to which a Partner may be entitled as provided in this Agreement or
in the Act, together with the obligations of such Partner to comply with all
the terms and provisions of this Agreement and the Act.
Until changed pursuant to the provisions hereof the
Partnership Interest of the Partners shall be as follows:
Western Magnesium Corp. (General Partner) 1%
Xxxx Xxxxxxxx (Limited Partner) 39%
Xxxxxx Xxxxxxx (Limited Partner) 40%
Xxxxx 0. Herlands (Limited Partner) 20%
Total 100%
e. Profits and Losses. The term "Profits and Losses" shall
refer to the ordinary income or loss of the Partnership for Federal income tax
purposes determined as of the close of the Partnership's fiscal year.
f. Code. The term "Code" shall refer to the Internal
Revenue Code of 1954, as amended.
g. Property. "Property" means those certain parcels and
buildings and improvements now or hereafter erected thereon located in the
city of Santa Fe Springs, State of California consisting of approximately 4.43
acres located on Dice Road and being acquired from Southern Pacific
Transportation Company pursuant letter agreement dated July 25, 1984, together
with all incidents and interest of ownership attendant with or appurtenant
thereto. The term "Property" shall also include: the interest of the
Partnership; in the event of a sale, conveyance or other disposition of the
Property, in any (i) leasehold interest, (ii) mortgage, (iii) partnership or
corporate interest, or (iv) any other real or personal property, that is held
by the Partnership in exchange therefor.
h. Certificate. "Certificate" means the Certificate of
Limited Partnership filed pursuant to the Act, as such certificate may be
amended from time to time.
i. Agreement. The term "Agreement" shall mean this Limited
Partnership Agreement as amended from time to time.
3. Partnership Purposes and Powers.
a. Purposes. The purposes of the Partnership shall be to
own, maintain, operate and otherwise deal with respect to the Property
including the right to develop and construct buildings thereon.
b. No Other Business. The Partnership shall participate in
no other business unless authorized in this Agreement or in a separate writing
executed by all of the Partners.
x. Xxxxxx. In furtherance of the purposes contained in
Paragraph a. of this article, the Partnership shall be empowered:
(i) To purchase, sell, lease, exchange, pledge or
otherwise encumber any property, real or personal, upon such terms and
conditions as may be deemed desirable.
(ii) To finance all or any of its activities
authorized under the provisions of this Agreement by secured or unsecured
indebtedness and, in connection therewith, issue evidences of indebtedness and
execute and deliver
mortgages and other security instruments of every nature and kind as security
therefor and prepay, refinance and recast any or other lien on partnership
property; and
(iii) To enter into, perform and carry out
contracts, leases and agreements of every kind necessary or incidental to the
accomplishments of its purposes, including, without limitation, contracts,
leases and agreements with the General Partner, and persons or entities
affiliated with, or related to it in any manner, which persons or entities may
be controlled by it, and agreements to arbitrate disputes with other parties,
and take or omit such other or further action in connection with the Property
as may be necessary or desirable to further the purposes of the Partnership;
and
(iv) To continue to hold its interest in the
Property or to convert its interest in the Property by way of an interest in
another entity such as a Partnership or Corporation; and
(v) To carry on any other activities necessary to,
in connection with or incidental to any of the foregoing.
d. The General Partner.
(i) The business and affairs of the Partnership
shall be managed by the General Partner acting through any one of its officers
who shall have all necessary powers to carry out the business of the
Partnership.
(ii) In the event the income and/or cash flow of
the Partnership is not sufficient to pay the interest and/or amortization of
any Partnership obligation, the General Partner shall not be obligated to
advance sufficient funds to the Partnership. In such event, the General
Partner shall have the right in its sole discretion to permit the Partnership
to default in the payment of any such Partnership obligation and to permit the
property to be forfeited or lost by foreclosure or any other voluntary or
involuntary proceeding or transaction. The General Partner shall not be liable
to any Limited Partner by reason of any such decision or by reason of the loss
or forfeiture of the partnership property.
(iii) As provided herein, the General Partner shall
devote such time to the management of the Partnership's business as shall be
reasonably required for its welfare and success.
(iv) File all certificates, notices, statements or
other instruments required by the Act and by law for the formation, operation
and dissolution of the Partnership, its business and its property in all
appropriate jurisdictions.
(v) Cause the Partnership to carry public
liability, property damage and other insurance, all of which shall name the
Partnership and the General Partner as insureds.
(vi) Maintain records of all Partners'
capital accounts, pursuant to the provisions of this Agreement, on the books
and records of the Partnership in respect of each Partnership Interest.
4. Term.
The term of the Partnership shall commence upon the date the
Partnership's Certificate of Limited Partnership is filed by the Secretary of
Acts of the State of California in the manner required by the Act and shall
continue until May 31, 2020, unless sooner dissolved as hereinafter provided.
5. Capital.
a. The initial capital of the Partnership shall be
$1,000.00 and each of the Partners shall contribute to the capital of the
Partnership the amount set forth hereinbelow:
Western Magnesium Corp. (General Partner) -0-
Xxxx Xxxxxxxx - 394
Xxxxxx X. Xxxxxxx - 404
Xxxxx X. Xxxxxxxx - 202
$ 1,000
b. Capital Accounts. Capital accounts shall be maintained
for each Partner on the books and records of the Partnership. Such account
shall be credited with the amounts of any capital contributions which may (but
are not required) be made from time to time to the Partnership and properly
adjusted, by allocation in proportion to the various Partnership
Interests, to reflect distributive shares of income, gain,
deduction, loss, and cash distributions made by the Partnership. Any Partner
whose Partnership Interest shall be increased or decreased by means of the
transfer of all or part thereof shall have a capital account which has been
appropriately adjusted to reflect such transfer.
c. Limitation of Liability of Limited Partners. The
liability of any Limited Partner to provide funds or any other property to the
Partnership shall be limited to the capital which the Limited Partner is
required to contribute pursuant to subparagraph "a." of this Article "5".
Nothing contained in this Agreement shall be construed to require any Limited
Partner to restore any deficit in his capital account by making any capital
contributions to the Partnership. The Limited Partners shall have no further
personal liability to contribute money to the Partnership for, or in respect
of, the liabilities or obligations of the Partnership and shall not be
personally liable for any obligations of the Partnership. The liability of the
Limited Partners is restricted and limited to the amount of the actual capital
contributions that each limited partner makes or agrees to make to the
Partnership.
d. No Interest on Capital Contributions. No interest
shall be paid by the Partnership to any Partner with respect to any
capital of the Partnership.
e. No Priority Among Limited Partners; No Withdrawal of
Capital. No Partner shall have priority over any other Partner either as to
the return of his capital of the Partnership or as to distributions made by
the Partnership. Except as otherwise specifically set forth in this Agreement,
no Partner shall 'have the right to demand or receive property other than cash
in return for -capital in the Partnership or as any other distributions from
the Partnership. No Partner shall have the right to withdraw any part of his
capital from the Partnership.
f. Liability of General Partners. Except as otherwise
provided in this Agreement, the liability of a General Partner arising from
the conduct of the business affairs or operations of the Partnership or for
the debts of the Partnership is unrestricted.
6. Allocations and Distributions.
a. Allocations Among Partners. Except as otherwise set
forth in this Agreement, any income, gain, loss, deduction, or credit of the
Partnership with respect to any Partnership fiscal period shall be allocated
to all Partners according to their Partnership Interests during such fiscal
period.
b. Benefits of Agreement. None of the provisions of this
Agreement shall be construed as existing for the benefit of any creditor of
the Partnership or creditor of any of the Partners, or shall be enforceable by
any third
party not a successor in interest to a signatory to this Agreement.
c. Distributable Cash.
(i) For the purposes of this Agreement, the term
"Distributable Cash" shall mean the net cash received by the Partnership
during any fiscal year from all sources after the payment of all expenses, and
amounts expended or reserved for reasonable working capital needs, replacement
of equipment, fixtures and personality, replacement reserves, and sinking
funds, all as determined by the General Partner, shall be deducted.
(ii) As soon as practicable after the end of each
fiscal period the Distributable Cash derived during such fiscal period, if
any, shall be distributed to the Partners in the same percentages as their
Partnership Interests. All distributions to the Partners shall be made pro
rata at the same time so that no Partner shall be entitled to or shall receive
a distribution in advance of any other Partner.
7. Books and Records.
a. Maintenance and Accounting Method. The General Partner
shall keep or cause to be kept full and accurate accounts of the transactions
of the Partnership in proper books of account. Such books shall be maintained
at the principal place of business of the Partnership and be available
for reasonable inspection and examination by the Partners or their duly
authorized agents or representatives. The Limited Partners may, at their own
expense and not at the expense of the General Partner or the Partnership,
cause the books and records of the Partnership to be examined by accountants
other than the Partnership's accountants.
b. Fiscal Year. The fiscal year of the Partnership shall be
the calendar year.
c. Required Records. The General Partners shall maintain
at the principal executive office of the Partnership within California
all of the following records:
(i) A current list of the full name and last known
business or residence address of each Partner, set forth in alphabetical
order, together with the contribution and the share in profits and losses of
each Partner.
(ii) A copy of the certificate of limited partnership
and all certificates of amendment thereto, together with executed copies of
any powers of attorney pursuant to which any certificate has been executed.
(iii) Copies of the limited partnership's federal, state
and local income tax or information returns and reports, if any, for the six
most recent taxable years.
(iv) Copies of this Agreement and all amendments thereto.
(v) Financial statements of the Partnership
for the six most recent fiscal years.
(vi) The Partnership's books and records for at least
the current and past three fiscal years.
d. Delivery of Records to Limited Partners. Upon the
request of any Limited Partner, the General Partners shall promptly deliver to
that Partner, at the expense of the Partnership, a copy of:
(i) The current list of each partner's name,
address, contribution, and share in profits and losses.
(ii) The certificate of limited partnership, as
amended, and any powers of attorney pursuant to which any certificate was
executed.
(iii) This Agreement, as amended.
8. Powers and Authority of the General Partner. The Partners hereby
acknowledge and agree that the General Partner (without the necessity of any
further consent or authorization of any Partner) shall have complete and
exclusive control over the management of the Partnership's business and
affairs, and the Limited Partners shall have no right to participate in the
management or conduct of such business or affairs nor any power or authority
to act for or on behalf of the Partnership in any respect whatsoever. Except
as otherwise expressly provided in this Agreement, the General Partner shall
have the right, power and authority, on behalf of the Partnership and in its
name, to exercise
all of the rights, powers and authority permitted to general partners under
the Act, including, without limitation, the power and authority to do all of
the following, at such times and on such terms and conditions as it deems to
be in the best interests of the Partnership:
a. To acquire, hold, sell, lease, or otherwise dispose of
all or less than all the Property, interests therein or appurtenances thereto,
as well as personal or mixed property connected therewith, including the
purchase, lease, development, improvement, maintenance, repair, exchange,
trade or sale of the Property, as well as causing to be prepared and filed
with respect to the Property such plans, declarations and other documents with
appropriate federal, state or municipal-agencies as may be required.
b. To borrow money required for the conduct of the business
and affairs of the Partnership and secure the repayment of such borrowing by
executing mortgages, pledging or otherwise encumbering or subjecting to
security interests all or any part of the assets of the Partnership, and to
repay, refinance, increase, modify, consolidate or extend the maturity of any
indebtedness created by such borrowing, or any such mortgage, pledge,
encumbrance or other security device;
c. To place record title to, or the right to use,
Partnership assets in the name or names of a nominee or
nominees for any purposes convenient or beneficial to the Partnership;
d. To open, maintain and close bank accounts and draw checks
or otherwise for the payment of monies;
e. To receive, receipt for and otherwise dispose of and
deal in all checks, monies, securities and other property of the Partnership;
f. To do any act or execute any document or enter into any
contract or agreement of any nature necessary or desirable, in the opinion of
the General Partner, in pursuance of the purposes of the Partnership
including, without limitation, to enter into, modify and perform agreements
(including joint venture agreements) relating to the acquisition, operation
and development of the Property;
g. To operate, manage and develop the Property, to enter
into a lease or leases and agreements with others with respect to such
management, operation and development, and to employ persons, at the expense
of the Partnership, in the operation, management and development of the
Property.
h. To purchase, at the expense of the Partnership,
contracts of liability, casualty and other insurance for the protection of the
assets or affairs of the Partnership or for any purpose convenient or
beneficial to the Partnership;
t. To employ from time to time any persons, firms or
corporations for the operation of the Partnership's
business including, without limitation, accountants and attorneys, on such
terms and for such compensation as the General Partner shall determine.
j. To enter into such agreements, contracts, documents and
instruments with such parties, and to give such receipts, releases and
discharges with respect to all of the foregoing and any matters incident
thereto, a~ the General Partner may deem advisable, appropriate and
convenient;
k. When required for the proper conduct of the business and
affairs of the Partnership, to exercise all rights, powers and privileges of
ownership with respect to any and all rights of property held by the
Partnership, including, without limitation, the right to sell, grant options
affecting exchange, transfer, finance, lease (for any term whether or not
extending beyond the term of this Agreement), mortgage, pledge, hypothecate or
otherwise dispose of or encumber such rights or property, all upon such terms
as the General Partner deems proper;
1. To adjust, compromise, settle or refer to arbitration,
any claim against or in favor of the Partnership or any nominee, and to
institute, prosecute or defend any legal proceedings relating to the business
and property of the Partnership.
All powers of the General Partner shall be limited to matters
relating to the Property and the Partnership
shall not make any loans to, or engage in, any venture not relating to the
Property.
In the exercise of his power and authority, the General
Partner shall have fiduciary responsibility for the safekeeping and use of all
funds and other assets of the Partnership, whether or not the same are in the
immediate possession or control of the General Partner.
9. Duties of the General Partner. In addition to any other
obligations imposed upon him by this Agreement, the General Partner shall have
the specific duties described below.
a. Maintenance of Limited Partnership Status. The General
Partner shall now and hereafter take all actions necessary and reasonably
practicable to maintain the Partnership's valid existence and, after formation
thereof, its status as a limited partnership in the State of California.
b. Management of the Property, The General Partner shall at
all times use reasonable efforts to provide to the Partnership, either through
its own employees or other agents with qualified supervisory management
services.
c. Insurance. The General Partner shall be responsible
either through his own employees or other agents for obtaining and keeping in
force policies of fire and extended coverage in limits sufficient to avoid
effect of co-insurance and otherwise satisfactory to all mortgagees,
worker's compensation and public liability insurance covering the Partnership
and the Property, with such carriers and in such amounts as the General
Partner deems appropriate, but no less (and in deductible amounts no greater)
than customarily maintained for properties similar to the Property. Any such
policies of insurance may, at the election of the General Partner, name the
General Partner, and such other Persons as the General Partner deems
appropriate as additional insureds thereunder.
d. Reports. The General Partner shall cause to be prepared
and distributed to each of the Limited Partners within ninety (90) days after
the end of each fiscal year of the Partnership, a copy of the Partnership's
Federal income tax return for such year together with a financial statement
for such year.
10. Restrictions on Authority of Partners.
a. Without the prior written consent of all the Limited
Partners, the General Partner shall not have the authority to:
(i) Do any act in contravention of this Agreement;
(ii) Do any act which would make it impossible to carry
on the ordinary business of the Partnership, except the liquidation of the
Partnership's assets by sale of the Property authorized under this Agreement;
(iii) Admit any additional General or Limited Partners
into the Partnership or establish any additional classes of Partners; (iv)
Possess Partnership property or assign rights in Partnership property for
other than Partnership purposes; (v) Amend this Agreement;
(vi) Change or reorganize the Partnership into any
other legal form;
(vii) Confess a judgment against the Partnership;
(viii) Knowingly perform any act which would subject the
Limited Partners to liability as general partners in any jurisdiction;
(ix) File or consent to the filing of a Petition under
any federal or state bankruptcy or insolvency act with respect to the
Partnership; or
(x) Enter into any transaction not relating to the
Property.
b. Voting Rights of Limited Partners. In addition to any
other rights granted the Limited Partners under this Agreement, none of the
following actions shall be taken without the prior written consent or vote of
a majority in interest of the Limited Partners:
(i) The sale, exchange, lease, mortgage, pledge, or
transfer of all or a substantial part of Property
other than in the ordinary course of business;
(ii) The incurrence of indebtedness by the Partnership
other than in the ordinary course of business;
(iii) A change in the nature of the Partnership's
business;
(iv) The removal of the General Partner; and
(v) The dissolution and winding up of the Partnership.
c. No Limited Partner shall take part in, or interfere in
any manner with, the conduct or control of the Partnership business, nor shall
any Limited Partner have any right or authority to act for or bind the
Partnership. The provisions of this paragraph c. of Article 10 shall have no
effect upon the specific rights granted to the Limited Partners herein or
under the Act.
11. Compensation to Partners.
No partner shall be entitled to compensation for services
rendered to the Partnership other than to the rights with respect to his
Partnership Interest.
12. Transfers of Interests; Substitute Limited Partners.
a. Requirements for Substitution. No assignee of the whole
or any portion of a Partnership Interest shall have the right to become a
Substitute Limited Partner in place of his assignor unless:
(i) The assignor has designated such
intention in a written instrument of assignment delivered to the General
Partner; and
(ii) Except as provided in subparagraph "b" of this
Article 12, the written consent of the General Partner has been obtained, the
granting or denial of which shall be within the sole discretion of the General
Partner; and
(iii) The assignee has adopted and agreed in writing to
be bound by all of the provisions hereof, as the same may have been amended;
and
(iv) All documents reasonably required by the General
Partner to effect the substitution of the assignee as a Limited Partner shall
have been executed and filed at the sole cost and expense of the assignor; and
(v) The provisions of Paragraph b. of this Article 12
have been satisfied.
When all of the provisions of law and of this Article have
been complied with, the assignee forthwith, shall become a Limited Partner.
b. Limitations on Transfers.
Except as provided in Article 14 hereof, there shall be
no sale, exchange or other transfer, or assignment of the whole or any portion
of a Partnership Interest without the prior written consent of the General
Partner, which consent the General Partner may grant or
refuse in its discretion.
c. Tax Elections. In the event of the sale, exchange or
transfer of a Partnership Interest, or any portion thereof, or upon the death
of an individual Limited Partner, or in the event of the distribution of
Partnership property to any Limited Partner, the Partnership may file an
election, the filing of which election shall be in the sole discretion of the
General Partner, in accordance with applicable Treasury Regulations, to cause
the basis of the Partnership property to be adjusted for Federal income tax
purposes as provided by Section 735, 743 and 754 of the Code.
13. Distributions and Allocations Subsequent to Assignment or Substitution.
An assignee or a substitute (but not additional), Limited
Partner who purchases or otherwise acquires a Limited Partner's Partnership
Interest, or any portion thereof, shall be entitled to receive distributions
of cash and allocations of income and loss from the Partnership attributable
to such Partnership Interest subsequent to the effective date of such
assignment, sale, exchange or other transfer with proration. The "effective
date" of an assignment for the purposes of this Article, shall be the date
fixed by the Code or if none then the date on which a written instrument of
assignment that conforms to the requirements hereof has been received by the
Partnership.
14. Death of a Limited Partner.
The death of any Limited Partner shall neither dissolve nor
terminate the Partnership. If a Limited Partner shall die or shall be
adjudicated incompetent, his legal representative shall have the right to be a
Substitute Limited Partner taking such Limited Partner's interest in the
Partnership. In she event of the death of a Limited Partner, the remaining,
surviving Limited Partners shall have the option to purchase, in proportion to
their interest in the Partnership, the interest of the deceased Limited
Partner at a purchase price equal to the total capital investment made by the
deceased Limited Partner in the Partnership. Said option shall be exercised by
the surviving Limited Partners within six months after the appointment of a
legal representative for the deceased Limited Partner and in the event that
they fail to exercise such option, then the Partnership shall have a like
option to acquire the deceased Limited Partner's interest for the same price
which option shall be exercisable within nine (9) months after the appointment
of a legal representative for the deceased Limited Partner. Either of said
options shall be exercised by notice given to the legal representative of the
deceased Limited Partner within the time period provided. If neither the
surviving Limited Partners nor the Partnership shall exercise said option of
purchase then the legal representative who acquires such Limited Partner's
interest in the Partnership
shall have the right to transfer same to the person or persons designated in
the Last Will and Testament of the deceased Limited Partner or those persons
entitled to take same pursuant to the intestacy laws of the jurisdiction
applicable. No consent of the General Partner shall be required for any
transfer pursuant to the conditions of this Article 14 provided, however, that
the transferee shall comply with the provisions of subparagraph (a)(iii) and
(iv) of Article 12. Death or other events relating to the General Partner.
The death, resignation, removal, adjudication of incompetency or insanity,
or an assignment for benefit of creditors by the General Partner, a filing of
a petition for bankruptcy or any other insolvency proceeding by the General
Partner or the filing of a petition for bankruptcy or any other insolvency
proceeding against the General Partner, not dismissed within 90 days shall not
automatically dissolve or terminate the Partnership but in the event of any
such events (such events sometimes hereunder being referred to as "Involuntary
Withdrawal") the General Partner's interest shall automatically be terminated
and the amount in the capital account of said terminated General Partner shall
be paid to it within a reasonable time.
a. In the event of the Involuntary Withdrawal of the
General Partner the Limited Partners acting unanimously shall within sixty
(60) days designate some other person or
entity as the General Partner; or elect to terminate and dissolve the
Partnership and designate a General Partner to carry out such termination and
dissolution. A failure to properly designate a successor General Partner
within sixty (60) days shall be deemed and election to terminate and dissolve
the Partnership.
b. No voluntary resignation of a General Partner shall
be effective until thirty (30) days after he has given written notice of same
to the Limited Partners.
c. A General Partner can be removed involuntarily by an
action brought by a majority of the Limited Partners in a court of competent
jurisdiction after a determination by such court that the General Partner has
committed fraud, gross negligence or willful misconduct in office.
16. Dissolution of the Partnership.
a. Dissolution. The Partnership shall be dissolved and its
affairs wound up upon the expiration of the term providing for the existence
of the Partnership or upon the occurrence of any of the following events,
whichever is first to occur:
(i) The Partnership shall be dissolved upon any
date specified in a Consent to Dissolution signed by the General Partner and
by a majority in interest of the Limited Partners.
(ii) The Partnership shall be dissolved and its
affairs shall be wound up when its assets are sold or otherwise disposed of and
the only property of the Partnership
consists of cash available for distribution to the Partners.
(iii) The Partnership shall be dissolved and its
affairs shall be wound up when required by a decree of judicial dissolution
entered under Section 15682 of the California Corporations Code.
b. Distribution Upon Dissolution. Upon the dissolution of
the Partnership, the General Partner or his successor(s) shall proceed to
liquidate the Partnership, and the proceeds of liquidation shall be applied
and distributed in the following order of priority:
(i) First, to the payment of debts and liabilities of
the Partnership (other than any loans or advances that may have been made by
any of the Partners to the Partnership) and the expenses of liquidation.
(ii) Second, to the establishment of any reserve which
the General Partner may deem reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Partnership. Such reserve may be
paid over to any attorney at law, or bank as escrow agent to be held for
disbursement in payment of any of the aforementioned liabilities and, at the
expiration of such period as shall be deemed advisable by the General Partner,
any balance shall be distributed in the manner hereinafter provided in this
Paragraph.
(iii) Third, to the repayment of loans or advances that
may have been made by any of the Partners to the Partnership.
(iv) Finally, the balance of any funds then remaining
shall be distributed to the Partners in the following order of priority:
(a) First, to the Partners in proportion to their
capital accounts an amount necessary to reduce the capital accounts to zero or
if any Partner's capital account has a negative balance then an amount to the
Partners to bring all capital accounts into a negative balance in proportion
to their Partnership Interest.
(b) The balance then remaining shall be distributed
to the Partners, in the same proportion as the Partnership Interest held by
each Partner bears to the total Partnership Interests held by all of the
Partners.
c. Distribution in Kind. In the event of the termination
and dissolution of the Partnership, to the extent that the Partnership's
assets have not been sold or otherwise disposed of, the Partnership's non-cash
assets, if any, may be distributed in kind in the proportions set forth in
Paragraph b. (iv) of this Article, each Partner accepting a pro rata undivided
interest therein subject to the Partnership 1iabi1ities.
d. Time for Liquidation. A reasonable amount of time shall
be allowed for the orderly liquidation of the assets of the Partnership and
the discharge of liabilities to creditors so as to enable the General Partner
to minimize the normal losses attendant upon such liquidation.
e. Filing. Upon dissolution of the Partnership, the General
Partner shall execute and file in the office of the Secretary of State of the
State of California a certificate of dissolution. Upon completion of the
winding up of the Partnership's affairs the Partners conducting the winding up
of the Partnership's affairs shall execute and file in the office of the
Secretary of State of the State of California a certificate of cancellation of
the Certificate of Limited Partnership. Upon compliance with the foregoing
distribution plan (including payment over to an escrow agent, if deemed
appropriate by the General Partner and if there be sufficient funds therefor),
the Partnership shall cease to be such, and the General Partner shall take
such action as shall be required by law to terminate such Partnership's
existence.
f. General Partner Not Personally Liable for Return of
Capital Contributions. The General Partner shall not be personally liable for
any distribution required pursuant to this Article 16, and such distribution
shall be made solely from available Partnership assets, if any.
g. Operations During Dissolution. Upon dissolution of the
Partnership, the affairs of the Partnership shall be wound up by a General
Partner who has not wrongfully caused the dissolution or if there is no
General Partner remaining, the Partnership's affairs shall be wound up by the
Limited Partners. If the Limited Partners wind up the Partnership's affairs,
they shall be entitled to reasonable compensation.
17. Withdrawals; Retirement of Partners.
Each Limited Partner shall have the right to withdraw from
the Partnership at any time by written notice to the General Partner. The
withdrawing Limited Partner shall be paid by the Partnership within sixty (60)
days of said notice of withdrawal a sum equal to the capital account of said
withdrawing Limited Partner on the books of the partnership as of the date of
notice of withdrawal, plus the principal outstanding, together with any
accrued interest, of any loans by said withdrawing Limited Partner to the
Partnership as of the date of payment. Notwithstanding the foregoing, in the
event a Limited Partner gives notice of withdrawal, the General Partner shall
have the right to elect by written notice to all Limited Partners, to dissolve
and terminate the Partnership instead of permitting a Limited Partner to
withdraw.
18. Power of Attorney to Execute Documents.
x. Xxxxx of Power of Attorney. Each Limited Partner hereby
irrevocably constitutes and appoints the General Partner acting through any
officer thereof as his true and lawful attorney in his name, place and xxxxx
to make, execute, acknowledge and, if necessary file:
(i) Any certificates or other instruments which the
Partnership may be required to file under the laws of the State of California,
or any other governmental authority having jurisdiction, or which the General
Partner shall deem it advisable to file.
(ii) Any certificates or other instruments amending
or modifying the certificate or the certificates and instruments referred to
in subparagraph (i) of this Paragraph.
(iii) Any certificates or other instruments which may be
required to admit one or more Limited Partners to the Partnership or to
effectuate the dissolution and termination of the Partnership.
b. Irrevocable and Coupled With an Interest; Copies to be
Transmitted. The powers of attorney granted under Paragraph a. of this Article
shall be deemed irrevocable and to be coupled with an interest. A copy of each
document executed by the General Partner pursuant to the powers of attorney
granted in Paragraph a. of this Article shall be transmitted to each Limited
Partner promptly after the execution of any such document.
c. Survival of Power of Attorney. The powers of attorney
granted in Paragraph a. of this Article shall survive delivery of an
assignment by any Limited Partner of the whole or any portion of his
Partnership Interest, except that if such assignment was of all of his
Partnership Interest and the substitution of the assignee as a Limited Partner
has been consented to by the General Partner, the foregoing powers of attorney
shall survive the delivery of such assignment for the sole purpose of enabling
the General Partner to execute, acknowledge and file any and all certificates
and
other instruments necessary to effectuate the substitution of the assignee
as a Limited Partner.
d. Limitation on Power of Attorney. The powers of attorney
granted under Paragraph a. of this Article cannot be utilized by the General
Partner to increase or extend any financial obligation or liability of the
Limited Partners. The General Partner may not modify the terms of this
Agreement without the written consent of all of the Limited Partners.
19. Non-Waiver.
No provision of this Agreement shall be' deemed to have
been waived except if such waiver is in writing and signed by the party making
such waiver and no such waiver shall be deemed to be a waiver of any other or
further similar or dissimilar obligation or liability.
20. Additional Documents and Instruments.
The parties shall execute and deliver to each other such
other and further documents and instruments as may be necessary to carry out
the purposes of this Agreement and which are required by the General Partner,
or any other federal, state or local governmental agency having jurisdiction
over the Partnership.
21. Illegality.
If any provision or provisions of this Agreement (or any
part thereof) or the application thereof to any particular facts or
circumstances shall be illegal and
unenforceable by reason of any statute or rule of law, the remaining
provisions (or parts thereof) of this Agreement or the application of the
particular provision or provisions (or parts thereof) to other facts or
circumstances shall not be affected thereby and shall remain in full force and
effect. It is the intention of the provisions of this Article to make clear
that the agreement of the parties to this Agreement is that this Agreement
shall be enforced insofar as it may be enforced consistent with applicable
statutes and rules of law.
22. Notices.
All notices, demands, requests, consents or approvals
given, required or permitted to be given hereunder, shall be contained in
writing and shall be deemed sufficiently given if sent by registered or
certified mail, postage prepaid and return receipt requested, addressed to the
parties at the addresses set forth above or below, or on any addendum to or
counterpart of this Agreement, or to such other address as the recipient shall
have previously notified the sender of in writing, and shall be deemed
received three (3) days after the date of mailing.
23. Merger and Amendments.
This Agreement contains the entire understanding and
agreement between parties upon the subject matter of this Agreement and,
except as otherwise provided herein, may be changed only by written amendment
signed by all of the Partners at such time. Any prior understandings and
agreements
between the parties are merged herein, except only as herein otherwise
expressly stated.
24. Provisions Binding.
This Agreement shall inure to the benefit of and be binding
upon the parties and their respective heirs, executors, administrators,
successors and assigns and any additional or substitute Limited Partners or
General Partners (except as may otherwise be specifically provided herein).
25. Captions.
The captions set forth herein are for convenience and
reference only and are not intended to modify, limit, describe or affect in
any way the contents, scope or intent of this Agreement.
26. Definitions.
All terms used herein which are defined in this Agreement
shall have the meaning set forth in this Agreement, unless the context clearly
indicates otherwise.
27. Counterparts.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one (1) and the same instrument.
28. Gender and Plural.
Whenever the sense of this Agreement so requires, the
masculine or feminine gender shall be substituted for or deemed to include the
neuter and the plural, the singular, and vice-versa.
29. Applicable Law.
This Agreement and the rights of the parties hereto shall
be interpreted in accordance with the laws of the State of California.
30. Execution by Spouses.
This agreement is signed by the spouses of the Limited
Partners, who are not themselves Partners. Such signature shall not be
construed as making any spouse a Partner or as imposing on any spouse any
responsibility for any Partnership obligation but merely recording the consent
of such spouse to the execution by her spouse of this agreement and to all of
the terms and conditions to the extent that any community property interest,
if any, may be involved.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement of Limited Partnership of First Dice Road Company.
General Partner
Western Magnesium Corp.
By /s/ Xxxx X. Xxxxxxxx
--------------------
Limited Partners Spouses
/s/ Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
----------------- -----------------
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxxx
--------------------- -----------------
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
--------------------- ---------------------
The undersigned, desiring to enter into the Agreement of
Limited Partnership of First Dice Road Company, a California Limited
Partnership (the "Partnership") in the form attached, hereby agree to all of
the terms and provisions thereof. Each of the undersigned hereby constitutes
and appoints Western Magnesium Corp., the General Partner of the Partnership,
his true and lawful attorney-in-fact, with all the powers and authorities as
set forth in said Agreement of Limited Partnership, including, without
limitation, in his name, place and xxxxx to make, execute, sign, acknowledge,
swear to, deliver and file a Certificate of Limited Partnership and any
amendment thereof. The power of attorney hereby granted shall be deemed to be
coupled with an interest and shall be irrevocable. This power of attorney
shall not be affected by subsequent disability or incapacity of the principal,
or lapse of time.
WITNESS, the execution hereof by the undersigned, as Limited
Partners of First Dice Road Company, and individually.
Dated: , 1985
/s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
000 Xxxx 000xx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
000 Xxxxxxx Xxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx 0. Herlands
---------------------
Xxxxx 0. Xxxxxxxx
000 Xxxxxxx Xxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF NEW YORK )
SS.:
COUNTY OF NEW YORK )
On the 19th day of June, 1985, before me personally came
XXXX X. XXXXXXXX, to me known, who, being by me duly sworn did depose and say
that he resides at 000 Xxxx 000xx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000; that he
is the Executive Vice President of WESTERN MAGNESIUM CORP., the corporation
described in and which executed the foregoing instrument; and that he signed
his name thereto by order of the board of directors of said corporation.
/s/ Xxxxxx Xxxxx
----------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of June, 1985, before me came XXXX X.
BENDREIM, to me known and known to me to be the individual described in and
who executed the foregoing instrument, and who acknowledged to me that he
executed the same.
/s/ Xxxxxx Xxxxx
----------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of June, 1985, before me came XXXXXX X.
XXXXXXX, to me known and known to me to be the individual described in and who
executed the foregoing instrument, and who acknowledged to me that he executed
the same
/s/ Xxxxxx Xxxxx
----------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of June, 1985, before me came XXXXX 0.
HERLANDS, to me known and known to me to be the individual described in and
who executed the foregoing instrument, and who acknowledged to me that he
executed the same.
/s/ Xxxxxx Xxxxx
----------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of June, 1985, before me came XXXX XXXXXXXX,
to me known and known to me to be the individual described in and who executed
the foregoing instrument, and who acknowledged to me that she executed the
same.
/s/ Xxxxxx Xxxxx
----------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of June, 1985, before me came XXXXX XXXXXXX,
to me known and known to me to be the individual described in and who executed
the foregoing instrument, and who acknowledged to me that she executed the
same
/s/ Xxxxxx Xxxxx
----------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of June, 1985, before me came XXXXX X.
XXXXXXXX, to me known and known to me to be the individual described in and
who executed the foregoing instrument, and who acknowledged to me that she
executed the same.
/s/ Xxxxxx Xxxxx
----------------
Notary Public
AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
OF
FIRST DICE ROAD COMPANY
A California Limited Partnership
AGREEMENT made this day of November, 1985 by and between
WESTERN MAGNESIUM CORP., as general partner and XXXX XXXXXXXX, XXXXXX X.
XXXXXXX and XXXXX 0. XXXXXXXX, as limited partners.
WHEREAS, an Agreement of Limited Partnership was entered into
on June 1, 1985; and
WHEREAS, the parties thereto desire to amend the said
Agreement.
NOW, THEREFORE, it is agreed as follows:
1. Article 3, Paragraph a., is hereby amended by adding the
following: "In addition and to the foregoing, the partnership shall engage in
such other business ventures as the general partner shall from time to time
determine whether or not related to the Property".
2. In all other respects the Agreement of Limited
Partnership dated June 1, 1985 is hereby ratified and confirmed.
WESTERN MAGNESIUM CORP.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
/s/ Xxxx X. Xxxxxxxx
--------------------
XXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxx
---------------------
XXXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxxx
---------------------
XXXXX X. XXXXXXXX
