AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXXXX INVESTMENT PARTNERSHIP II, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Xxxxxxx
Investment Partnership II, L.P. (the "Partnership"), dated as of August __,
1998, by and between Veteri Place Corporation, as the General Partner (the
"General Partner") and the persons and entities, referred to in schedule A on
file at the offices of the Partnership, who have executed, either directly or
indirectly by an attorney-in-fact, as limited partners (the "Limited Partners").
PREMISES:
A. The Partnership was organized in accordance with the New Jersey revised
Uniform Limited Partnership Act by the filing by the General Partner of a
Certificate of Limited Partnership with the office of the Secretary of State of
the State of New Jersey on August __ , 1998.
B. The General Partner, pursuant to the authority granted to him under
section 26 of the Agreement, desires to amend the Agreement and to restate the
same.
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, effective as of August __, 1998, it is hereby agreed as
follows:
The following terms shall have the following meaning when used in this
Agreement:
(a) "Act" shall mean the New Jersey Revised Uniform Limited Partnership
Act, amended from time to time.
(b) "Affiliate" shall mean any person performing services on behalf of the
Partnership who (i) directly or indirectly controls, is controlled by, or is
under common control with a General Partner; (ii) is any company of which a
General Partner or its controlling shareholder is an officer, director, partner
or trustee; (iii) a member of the family of the controlling shareholder of the
General Partner; or (iv) an Individual Retirement account or similar trust for
the benefit of one or more General Partner or its affiliates.
(c) "Agreement" shall mean this agreement of Limited Partnership, as
originally executed and as amended, modified, supplemented or restated from time
to time.
(d) "Capital account" shall mean the account described in Section 8 of this
Agreement.
(e) "Certificate" shall mean the Partnership's certificate of Limited
Partnership as defined in section 2 of this Agreement.
(f) "Code" shall mean the Internal Revenue code of 1986, or successor
provision of law, and the regulations issued thereunder.
(g) "Fiscal Period" shall mean the period beginning on the day immediately
succeeding the last day of the immediately preceding fiscal Period and ending on
the earliest occurring of the following:
(i) The last day of the Fiscal Year;
(ii) The day immediately preceding the day on which
a new Partner is admitted to the Partnership;
(iii) the day immediately preceding the date on
which a Partner makes an additional capital contribution to the Partner's
capital account;
(iv) The day on which a Partner withdraws, in
whole or in part, the amount of his or its Capital account;
(v) The date of dissolution of the Partnership in
accordance with Section 5 of this Agreement.
(h) "Fiscal "Quarter" shall mean a fiscal quarter of the
Partnership.
(i) "Fiscal Year" shall mean the fiscal year of the
Partnership, which shall be the calendar year.
(j) "General Partner Percentage" shall mean a percentage
established by the General Partner for each General Partner on the
Partnership's books as of the first day of each Fiscal Period. The sum of
the General Partner's Percentages for each Fiscal Period shall equal one
hundred percent (100%).
(k) "Net Profit" of the Partnership shall mean, with
respect to any Fiscal Period, the excess of the aggregate revenue, income
and gains (realized and unrealized) earned on an accrual basis during the
fiscal Period by the Partnership from all sources over the expenses and losses
(realized and unrealized) incurred on an accrual basis during the fiscal
Period by the Partnership.
(l) "Net Loss" of the Partnership shall mean, with
respect to any fiscal Period, the excess of all expenses and losses
(realized and unrealized) incurred on an accrual basis during the fiscal
Period by the Partnership over the aggregate revenue, income and gains
(realized and unrealized) earned on the accrual basis during the fisca
period by the Partnership from all sources.
(m) "Partnership Percentage" shall mean a percentage
established for each partner on the Partnership'books as of the first day of
each Fiscal Period. The Partnership Percentage of a Partner for a Fiscal
Period shall be determined by dividing the amount of the Partner's capital
account as of the beginning of the Fiscal Period by the sum of the capital
accounts of all of the Partners as of the beginning of the fiscal
Period. The sum of the Partnership Percentage for each fiscal Period shall
equal one hundred percent (100%).
2. Organization.
The General Partner has executed a Certificate of Limited Partnership
pursuant to the provisions of the Act (the "Certificate") and has caused the
certificate to be filed as required by the Act. The General Partner shall also
execute and record all amendments to the Certificate or additional certificates
as may be required by this Agreement or by law.
3. Name of Partnership.
The name of the Partnership shall be Xxxxxxx Investment Partnership II,
L.P. or such other name as the General Partner may from time to time designate.
4. Principal Office, Resident Agent, Registered Office.
The principal office of the Partnership is 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000 or any other place determined by the General Partner. The
Partnership's phone number is (000) 000-0000, Ext. 108. The name and address of
the registered agent for service of process in the State of New Jersey is
Xxxxxxxx X. Xxxxxxx, 000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000. The address of the
registered office of the Partnership in the State of New Jersey is c/o Xxxxxxxx
X. Xxxxxxx,100 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000.
5. Term of the Partnership.
(a) The term of the Partnership, having commenced on the date the
Certificate was filed shall continue until the first of the following events
occurs:
(i) December 31, 2014;
(ii) a written consent to dissolution of the Partnership by
all Partners;
(iii) upon the General Partner ceasing to be a general
partner as a result of doing or being subject to one or more of the following:
(A) withdrawing from the Partnership in accordance
with Section 21 of this Agreement;
(B) assigning all of its interest in the
Partnership;
(C) making an assignment for the benefit of its
creditors;
(D) filing a voluntary petition in bankruptcy;
(E) being adjudged bankrupt or insolvent or having
entered against it an order of relief in any bankruptcy or insolvency
proceeding;
(F) filing a petition or answer seeking for itself
any reorganization, arrangement,composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation;
(G) filling an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against
it in any proceeding seeking reorganization, arrangement,composition,
readjustment, liquidation, dissolution, or similar relief under any
statute, law or regulation;
(H) seeking, consenting to, or acquiescing in the
appointment of a trustee or receiver, or liquidator of all or any substantial
part of its properties;
(I) being the subject of any proceeding seeking
reorganization, arrangement,composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law or regulation,which
proceeding shall have continued for one hundred and twenty (120) days after the
commencement thereof; or the appointment of a trustee, receiver, or liquidator
for such General Partner or all or any substantial part of its properties
without its consent or acquiescence, which appointment is not vacated or
stayed for ninety (90) days after the expiration of the stay during which period
the appointment is not vacated;
(J) the death of the General Partner; or
(K) the entry by a court of competent jurisdictio
adjudicating such General Partner incompetent to manage his person or his
property; or
(iv) upon issuance of a non-appealable decree of
dissolution of the Partnership by a New Jersey Court of competent
jurisdiction.
(b) In the event a General Partner does or becomes subject to any of the
provisions of subsection (a)(iii) of this Section 5, the Partnership shall be
dissolved and its affairs wound up as provided in Section 22 of this Agreement.
6. Purposes
The Partnership is organized for the following purposes:
(a) to invest and trade, on margin or otherwise, in "Securities," as that
term is defined in Section 2(1) of the Securities Act of 1933, as amended (the
"1933 Act");
(b) to sell Securities short and cover short sales;
(c) to lend funds or properties of the Partnership, either with or without
security; and
(d) to execute, deliver and perform all contracts and other undertakings,
and engage in all activities and transactions, that the General Partner believes
are necessary or advisable in carrying out the purposes specified all
subsections (a), (b), and (c) of this Section 6, including without limitation:
(i) to purchase, transfer or acquire in any manner and
exercise all rights, powers, privileges and other incidents of ownership or
possession with respect to the investments described in subsection (a) of this
Section 6; and
(ii) to register or qualify the Partnership under any
applicable Federal or state laws, or to obtain exemptions under those laws, if
registration, qualification, or exemption is deemed necessary by the General
Partner.
7. Contributions of the Partners; New Partners.
(a) Each Partner shall make a contribution to the Partnership's
capital ("Capital Contribution") in the amount set out opposite the
Limited Partner's name in Schedule A attached to this Agreement.
(b) Any Partner may elect, with the consent of the General Partner to
make an additional Capital Contribution, as of the first day of any fiscal
Quarter. The General Partner may, in its sole discretion, permit additional
Capital Contributions to be made more frequently than quarterly.
(c) No Partner shall be required to make any additional Capital
Contributions.
(d) Capital Contributions made by Limited Partners must be in cash.
(e) The General Partner shall have the right, but not the obligation,
to admit new Partners to the Partnership as of the first day of any Fiscal
quarter. The General Partner may, however, in its sole discretion, admit
new Partners more frequently than quarterly.
8. Capital Accounts.
A Capital account shall be established for each Partner. For the
Fiscal Period during which a Partner is admitted to the Partnership, his or
its capital account shall equal the amount of his or its initial Capital
Contribution. For each subsequent Fiscal Period, the Partner's Capital
account will equal the sum of the amount of his or its Capital account as
finally adjusted for the immediately preceding fiscal Period and the amount
of any additional Capital Contribution made by the Partner as of the first
day of the current Fiscal Period.
9. Adjustments to Capital Accounts.
At the end of each Fiscal Period, the Capital Accounts of the Partners
shall be adjusted in the following manner:
Net Profits for each year (as defined below) shall be allocated as
follows:
(a) First, to the extent of any net losses allocated to the Limited
Partners, ninety-nine (99%) percent of the Net Profits shall be allocated
to the Limited Partners, and one percent (1%) to the General Partner until
the Limited Partners have recouped any Net Losses previously allocated to
them.
(b) Thereafter, any remaining Net Profit shall be allocated
seventy-five (75%) percent to the Limited Partners and twenty-five (25%)
percent to the General Partner (the "Incentive Allocation").
Net Losses for each calendar year shall be allocated as follows:
(a) First, to the extent that the General Partner's capital account is
positive, seventy-five (75%) percent of the Net Losses shall be allocated
to the Limited Partner and twenty-five (25%) percent to the General
Partner.
(b) From and after the General Partner's capital account is zero, the
Net Losses shall be allocated ninety-nine (99%) percent to the Limited
Partner and one percent (1%) to the General Partner.
The portion of the Net Profit and Net Losses allocated to the Limited
Partner shall be allocated between the Limited Partners based on the
proportion that such Limited Partner's capital account bears to the capital
account of all limited partners.
Notwithstanding the preceding provisions of this Article 4:
(a) Except as provided in sub-section (e) below, no allocation of loss
or deduction shall be made to a Partner if such allocation would cause at
the end of any taxable year a deficit in such Partner's Adjusted Capital
Account to exceed his or its allocable share of Minimum Gain (as defined in
Treasury Regulation Section 1.704-1(b)(iv)(e); and any such loss or
deduction not allocated to a Partner by reason of this Section shall be
allocated pro-rata to each other Partner if and to the extent that such
allocation shall not create a deficit in such other Partner's Adjusted
Capital Account in excess of his allocable share of Minimum Gain; provided,
however, that if such allocation would create such deficit in all Partner'
Adjusted Capital Accounts in excess of their share of Minimum Gain, then
such allocation shall be made in accordance with the principles of Treasury
Regulation Section 1.704-1(b).
(b) If, during any taxable year, there is a net decrease in Minimum
Gain then each Partner shall, before any other allocations are made for
such year, be allocated in a manner so as to satisfy the requirements of
Treasury Regulation Section 1.704-2(f), items of Partnership income and
gain for such year (and, if necessary, subsequent years) in an amount equal
to each Partner's share of the net decrease in Partnership Minimum Gain
(within the meaning of Treasury Regulation Section 1.704-2(g)(2).
(c) If, during any taxable year, there is a net decrease in
Partnership Minimum Gain Attributable to Partner Nonrecourse Debt, then
each Partner with a share of the Partnership Minimum Gain Attributable to
Partner Nonrecourse debt at the beginning of the year shall , before any
other allocations are made for such year other than those pursuant to
Section (b) above, be allocated in a manner so as to satisfy the
requirements of Treasury Regulation Section 1.704-2(i)(4), items of
Partnership income and gain for such year (and, if necessary, for
subsequent years) in an amount equal to each Partner's share of the net
decrease in Minimum Gain Attributable to Partner Nonrecourse Debt as
determined in accordance with Treasury Regulation Section 1.704-2(i)(4).
(d) If during any taxable year a Partner unexpectedly receives (i) a
distribution of cash or property from the Partnership or (ii) an adjustment
or allocation described in Treasury Regulation Section 1.704-1(b)(2)(ii)
(d) (5) as in effect on the date hereof (concerning allocations of loss and
deduction if Partners' interests change during the year, if a Partnership
interest is acquired by gift or if a Partner receives certain Partnership
property in redemption of part or all of his or its interest in the
Company), and if such adjustment , allocation or distribution would cause
at the end of the taxable year a deficit balance in such Partner's Adjusted
Capital Account in excess of his allocable share of Minimum Gain, then a
pro-rata portion of each item of partnership income, including gross
income, and gain for such taxable year (and, if necessary, subsequent
taxable years) shall be allocated to such Partner in an amount and in a
manner sufficient to eliminate such excess balance as quickly as possible
before any other allocation is made for such year other than pursuant to
Subsection (b) hereof so as to satisfy the requirements of Treasury
Regulation Section 1.704-1(b)(2)(ii)(d) (qualified income offset).
(e) To the extent required by Treasury Regulation Section
1.704-2(i)(1), Partner Nonrecourse Debt Deductions for any taxable year
shall be allocated to the Partner (or Partners) who bear(s) the economic
risk of loss of such Partner Nonrecourse Debt.
(f) In the event that any allocation is or has been made to a Partner
pursuant to Subsections (a), (b), (c) (d) or (e) above, subsequent items of
income, deduction, gain and loss shall be allocated before any other
allocations are made (subject to the provisions of Subsections (a), (b),
(c) (d) or (e)) to the Partners in the manner which would result in each
Partner having a Capital Account balance equal to what it would have been
had the allocation pursuant to subsections (a), (b), (c) (d) or (e) not
occurred.
(g) For purposes of this Article, each Partners "Adjusted Capital
Account" shall equal the Capital Account of each Partner (1) reduced at the
end of each taxable year by the sum of (x) the excess of distributions
reasonably expected to be made to such Partner over the offsetting
increases to such Partner's Capital Account reasonably expected to be made
in the same taxable year as the aforesaid distributions, and (y)
allocations expected to be made described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(5) as in effect on the date hereof (concerning
allocations of loss and deduction if Partners' interests change during the
year, if a Partnership interest is acquired by gift or if a Partner
receives certain Partnership property in redemption of part or all of his
interest in the Partnership), and (2) increased by the sum of (i) the
amount, if any, which the Partner is obligated to restore to the
Partnership upon liquidation of his interest therein if a deficit balance
exists in his Capital Account at such time, (ii) the outstanding principal
balance of any promissory note made by such Partner and contributed to the
Partnership if such note is not readily tradable on an established
securities market and if such note must be satisfied within 90 days after
the date said Partner's interest is liquidated, (iii) the amount of any
unconditional obligation of such Partner to make subsequent contributions
to the Partnership (whether imposed by this Agreement or by law), and (iv)
the sum of (a) the amount the Partner would be personally liable for either
as a Partner or in his individual capacity as a guarantor or otherwise, and
(b) the economic risk of loss the Partner would bear attributable to any
Partnership liability (as determined in accordance with Treasury Regulation
Section 1.752-2).
(h) In accordance with Section 704(b) and (c) of the Code and
Regulations thereunder, income, gain, loss and deduction with respect to
any property contributed to the capital of the Partnership (including all
or part of any deemed capital contribution under Section 708 of the Code)
shall, solely for tax purposes, be allocated among the Partners so as to
take account of any variation between the adjusted basis of such property
to the Partnership and its agreed value. In the event that Capital Accounts
are ever adjusted pursuant to Treasury Regulation Section 1.704-1(b)(2) to
reflect the fair market value of any Partnership property, subsequent
allocations of income gain, loss and deduction with respect to such asset
shall take account of any variation between the adjusted basis of such
asset and its value as adjusted in the same manner as required under
Section 704(c) of the Code and the Regulations thereunder.
(i) The allocations provided in Sections 4.5(a)-(h) are intended to
comply with the provisions of Section 704(b) of the Code and the
Regulations thereunder. However, If any such allocation causes a distortion
in the Partner's Partnership Interest in contravention of the Partners'
economic arrangement as reflected in Article 4, the General Partner has the
authority to make curative allocations to bring such allocations in
accordance with such Partner' Partnership Interest, as if such allocations
which caused the distortion had not occurred.
(j) The allocations provided in this Section are intended to comply
with the provisions of Section 704(b) of the Code and the Regulations
thereunder. If any such allocation under this Section is inconsistent
therewith, the General Partner has the authority to make a curative
allocation to bring such allocations in compliance with Section 704(b) of
the Code and Regulations thereunder.
For purposes of this Agreement, the following terms shall have the
definitions set forth below:
"Nonrecourse Liability." Any debt of the Partnership for which no
Partner has any economic risk of loss, determined in accordance with
Internal Revenue Regulation Section 1.704-2(b)(3).
"Partner Nonrecourse Debt." Any nonrecourse debt of the Partnership
for which a Partner bears the economic risk of loss, determined in
accordance with Treasury Regulation Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Deductions." With regard to any Partner
Nonrecouse Debt, the amount of the net increase during any Partnership
taxable year in the amount of Minimum Gain Attributable to Partner
Nonrecourse Debt, over the aggregate amount of any distributions during
such year to the Partner who bears the economic risk of loss for such debt
that are allocable to an increase in the Minimum Gain Attributable to such
Partner Nonrecourse Debt. Such amounts shall be determined in accordance
with Treasury Regulation Section 1.704-2(I) (2).
"Recourse Debt." All Partnership debt other than Nonrecourse Liability.
10. Hot Issues.
In the event the General Partner decides to invest in securities which
are the subject of a public distribution and which the General Partner, in
his sole discretion, believes may become a "hot issue" as that term is
defined in Article III, Section 1 of the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. (the "Association"), such
investment shall be made in accordance with the following provisions:
(a) any such investment made in a particular Fiscal Period shall be
made in a special account (the "Hot Issues account");
(b) only those Partners who do not fall within the proscription of
Article III, section 1 of said Rules of Fair Practice ("Unrestricted
Partners") shall have any beneficial interest in the Hot Issues Account;
(c) each Unrestricted Partner shall have a beneficial interest in the
Hot Issues Account for any Fiscal Period in the proportion which (i) such
Unrestricted Partner's Capital account as of the beginning of the Fiscal
Period bore to (ii) the sum of the Capital Accounts of all Unrestricted
Partners as of the beginning of such fiscal Period.
(d) Funds required to make a particular investment shall be
transferred to the Hot Issues account from the regular account of the
Partnership; securities involved in the public distribution shall be
purchased in the Hot Issues Account, held in the Hot Issues Account and
eventually sold from the Hot Issues Account or transferred to the regular
account at fair market value as of the day of transfer as determined by the
General Partner with such transfer being treated as a sale; if such
securities are sold from the Hot Issues account, the proceeds of the sale
shall be transferred from the Hot Issues account to the regular account of
the Partnership.
(e) as of the last day of each Fiscal Period in which a particular
investment or investments are held in the Hot Issues Account: (A) interest
shall be debited to the Capital Accounts of the Unrestricted Partners in
accordance with their beneficial interest in the Hot Issues Account at the
interest rate being paid by the Partnership from time to time for borrowed
funds during the period in that Fiscal Period that funds from the regular
account have been held in or made available to the particular Hot Issues
Account or, if no such funds are being borrowed during such period, the
interest rate that the General Partner determines would have been paid if
funds had been borrowed by the Partnership during such period; and such
interest shall be credited to the Capital Accounts of all the Partners,
both General and Limited, in the proportions which (i) each Partner's
Capital Account as of the beginning of such Fiscal Period bore to (iii) the
sum of the Capital Accounts of all Partners as of the beginning of such
Fiscal Period and (B) any Net Profits or Net Losses during such Fiscal
Period with respect to the Hot Issues Account shall be allocated to the
Capital accounts of the Unrestricted Partners in accordance with their
beneficial interest in the Hot Issues Account during such Fiscal Period;
provided, however, that the amount of such interest shall not exceed the
amount of profit accrued in the Hot Issues Account; and
(f) the determination of the General Partners as to whether a
particular Partner falls within the proscription of Article III, Section I
of said Rules of Fair Practice shall be final.
11. Valuation.
The Partnership's assets shall be valued in accordance with the
following principles:
(a) Any Security that is listed on a national securities exchange will
be valued at its last sale price on the date of determination as recorded
by the composite tape system, or if no sales occurred on that day, at the
mean between the closing "bid" and "asked" prices on that day as recorded
by the system or the exchange, as the case may be;
(b) Any Security that is a National Market Security will be valued at
its last sale price on the date of determination as reported by the
National Association of Securities dealers automated quotations system
("NASDAQ") or if no sale occurred on that day, at the mean between the
closing "bid" and "asked" prices on that day as reported by NASDAQ:
(c) Any Security not listed on a national securities exchange and not
a National Market Security will be valued at the mean between the closing
"bid" and "asked" prices on the date of determination as reported by NASDAQ
or, if not so reported, as reported in the over-the-counter market in the
United States;
(d) An option shall be valued at the last sales price or, in the
absence of a last sales price, the last offer price; and
(e) All other Securities shall be assigned the value that the General
Partner in good faith determine.
12. Determination by General Partner of Certain Matters.
(a) All matters concerning the valuation of Securities, the allocation
of profits, gains and losses among the Partners, including the taxes on
them and accounting procedures, not specifically and expressly provided for
by the terms of this Agreement, shall be determined in good faith by the
General Partner, whose determination shall be final, binding and conclusive
upon all of the Partners.
(b) gains, losses, and expenses of the Partnership for each Fiscal
Period shall be allocated among the Partners for income tax purposes in a
manner so as to reflect, as nearly as possible, the amounts credited or
charged to each Partner's Capital Account pursuant to Section 9 of this
Agreement.
(c) The General Partner shall have the power to make all tax elections
and determinations for the Partnership, and to take any and all action
necessary under the Code or other applicable law to effect those elections
and determinations. All such elections and determinations by the General
Partner shall be final, binding and conclusive upon all Partners.
13. Liability of Partners.
(a) The General Partner shall not be obligated to contribute cash or
other assets to the Partnership to make up deficits in their Capital
accounts or in the Capital Accounts of the Limited Partners either during
the term of the Partnership or upon liquidation. The General Partner shall
be liable for all debts and obligations of the partnership to the extent
that the Partnership is unable to pay such debts and obligations up to the
extent of Veteri's capital.
(b) The doing of any act or the failure to do any act by a General
Partner, the effect of which may cause or result in loss, liability, damage
or expense to the Partnership or any Partner shall not subject a General
Partner to any liability to the Partnership or to any Partner, except that
a General Partner may be so liable if it has not acted in good faith, or
has committed gross misconduct or was grossly negligent.
(c) A Limited Partner will not be liable for any debts or bound by any
obligations of the Partnership except to the extent set forth in
subsections (d), (e) and (f) of this Section 13.
(d) A Limited Partner who has received the return of any part of his
or its Capital contribution without violation of this Agreement or the Act
shall not therefore be labile to the Partnership or its creditors.
(e) A Limited Partner receiving a return of any portion of his or its
Capital Contribution in violation the Act or this Agreement will be Liable
to the Partnership for a period of six (6) years thereafter for the amount
of the contribution wrongfully returned.
(f) A Limited Partner may be liable to the Partnership or creditors of
the Partnership for any amounts distributed if, and to the extent that, at
the time of the distribution, he actually knew that, after giving effect to
the distribution, all liabilities of the Partnership, other than
liabilities to Partners on account of their interest in the Partnership,
exceeded the fair value of the Partnership's assets.
14. Rights and Duties of the General Partner
(a) The General Partner shall have the exclusive right to manage and
control the affairs of the Partnership, and shall have the power and
authority to do all things necessary or proper to carry out the purposes of
the Partnership. The General Partner shall devote an amount of time and
attention that the General Partner in its sole discretion deems necessary
or appropriate.
(b) Without limiting the generality of the foregoing, the General
Partner shall have full power and authority:
(i) to engage independent agents, investment advisors, attorneys,
accountants and custodians as the General Partner deems necessary or
advisable for the affairs of the Partnership;
(ii) to receive, buy sell, exchange, trade, and otherwise deal in
and with Securities and other property of the Partnership;
(iii) to open, conduct and close accounts with brokers on behalf
of the Partnership and to pay the customary fees and charges
applicable to transactions in those accounts;
(iv) to open, maintain and close accounts, including margin
accounts, with brokers and banks, and to draw checks and other orders
for the payment of money by the Partnership;
(v) to file, on behalf of the Partnership, all required local,
state and Federal tax and other returns relating to the Partnership;
(vi) to cause the Partnership to purchase or bear the cost of any
insurance covering the potential liabilities of the General Partner
and any associate, employee or agent of the General Partner arising
out of the General Partner's actions as General Partner under this
Agreement;
(vii) to cause the Partnership to purchase or bear the cost of
any insurance covering the potential liabilities of any person serving
as a director, officer or employee of an entity in which the
Partnership has an investment or of which the Partnership is a
creditor;
(viii) to commence or defend litigation or submit to arbitration
any claim or cause of action that pertains to the Partnership or any
Partnership assets;
(ix) to enter into, make and perform contracts, agreements and
other undertakings, and to do any other acts, as the General Partner
deems necessary or advisable for, or as may be incidental to, the
conduct of the business of the Partnership, including, without
limiting the generality of the foregoing, contracts, agreements,
undertakings and transactions with any Partner or with any other
person, firm or corporation having any business, financial or other
relationship with any Partner or Partners:
(x) to make or revoke elections pursuant to Section 754 of the
Code to adjust the basis of the Partnership's property as permitted by
Sections 734(b) and 743(b) of the Code; and
(xi) to designate a Tax Matters Partner for all purposes under
the Code
15. Expenses.
The Partnership shall bear all expenses relating to its
organization. The Partnership will bear the expenses of its
administration, accountant, its legal counsel, and expenses of
investments.
16. Administrative Fee.
The General Partner will not charge an administrative fee.
17. Limitation on Powers of Limited Partners.
No Limited Partner shall participate in the control of the
Partnership's business, transact any business in the Partnership's
name or have the power to sign documents for the Partnership or to
bind the Partnership in any other way.
18. Other Business ventures.
Each Partner agrees that each General Partner and its affiliates
and associates may engage in other business activities or possess
interest in other business activities of every kind and description,
independently or with others. These activities may include, without
limitation, establishing a broker-dealer and investing in real estate
and real estate related partnerships, or in investing, in financing,
acquiring and disposing of interest in securities in which the
Partnership may from time to time invest, or in which the Partnership
is able to invest or otherwise have any interest. The Limited Partners
agree that the General Partner and its affiliates may act as general
partner of other partnerships, including investment partnerships.
19. Limitation on Assignability of Interest of Limited Partners.
(a) No Limited Partner may assign or otherwise transfer or
encumber his or its interest in the Partnership, in whole or in part,
without the consent of the General Partner and without a written
opinion of counsel to or approved by the General Partner that the
proposed transfer (i) is consistent with all applicable provisions of
the 1933 Act, and the rules and regulations thereunder, as from time
to time in effect, as well as any applicable provisions of any state
"blue sky" law; and (ii) would not result in the Partnership's having
to register as an investment company under the Investment Company Act
of 1940, as amended.
(b) Notwithstanding any other provision of this Agreement, any
successor to any Limited Partner shall be bound by the provisions of
this Agreement. Prior to recognizing any assignment of an interest in
the Partnership that has been transferred in accordance with this
Section 19, the General Partner may require the transferring Limited
Partner to execute and acknowledge an instrument of assignment in form
and substance satisfactory to the General Partner, and may require the
assignee to agree in writing to be bound by all the terms and
provisions of this Agreement, to assume all of the obligations of the
assigning Limited Partner and to execute whatever other instruments or
documents the General Partner deems necessary or desirable in
connection with the assignment.
(c) No Limited Partner shall have the right to have his or its
assignee admitted as a substitute Limited Partner, except upon the
written consent of the General Partner, which consent may be withheld
in the sole discretion of the General Partner.
(d) Each Limited Partner hereby approves of the admission to the
Partnership as a Limited Partner of any assignee who succeed to the
interest in the Partnership of a Limited Partner in accordance with
the provisions of this Section 19.
20. Withdrawals by a Limited Partner.
(a) (i) A Limited Partner who shall have been a Limited Partner
for at least eight full Fiscal Quarters shall have the right, as of
the end of any Fiscal Year, or at other times at the discretion of the
General Partner, to withdraw all or a portion of the amount of his or
its Capital Account, so long as the General Partner receives written
notice of the intended withdrawal not less than ninety (90) days prior
to the withdrawal, stating the amount to be withdrawn. In no event,
however, shall a Limited Partner be permitted to withdraw any amounts
from his or its Capital Account in excess of the positive balance of
his or its Capital Account. If the amount of a Limited Partner's
withdrawal represents less than seventy-five (75%) of the Limited
Partner's Capital Account, the Limited Partner will receive the
proceeds of the withdrawal within thirty (30) days after the date of
withdrawal. If the amount of a Limited Partner's withdrawal represents
seventy-five (75%) or more of the Limited Partner's Capital Account,
the Limited Partner will receive seventy-five percent (75%) of his
Capital account within thirty (30) days after the date of withdrawal
and the remainder of the amount withdrawn within ten (10) days after
the Partnership has received financial statements from its independent
certified public accountants pursuant to Section 23(c) of this
Agreement. If a Limited Partner requests withdrawal of capital which
would reduce his Capital Account below the amount of his initial
Capital Contribution, the General Partner may treat such request as a
request for withdrawal of all of such Partner's Capital Account. The
distribution of any amount withdrawn by a Limited Partner may take the
form of cash and/or marketable securities as determined by the General
Partner in his sole discretion.
(ii) In the event of a proposed withdrawal of capital by one or
more General Partner or Affiliates pursuant to Section 21(a)(ii) of
this Agreement, as a result of which the aggregate of the Capital
Accounts of the General Partner and Affiliates will be less than
$50,000 (fifty thousand dollars), a Limited Partner shall have the
right to withdraw all or a portion of the amount of his or its Capital
Account, so long as the General Partner receives written notice of the
intended withdrawal not more than fifteen (15) days after the date of
the notice of withdrawal by such General Partner or General Partner or
Affiliate or Affiliates pursuant to said Section 21(a)(ii), stating
the amount to be withdrawn. In such event the withdrawal by such
Limited Partner shall be effective as of the effective date of the
withdrawal by the General Partner or General Partners pursuant to said
Section 21(a)(ii). The amount available for withdrawal shall be
calculated in the same manner as provided for in the last sentence of
paragraph (b) of Section 5 hereof.
(b) Any Limited Partner's interest in the Partnership may be
terminated by the Partnership as of the end of any Fiscal Year upon
prior written notice, so long as the General Partner determines the
termination to be in the best interest of the Partnership. In the
event that a Limited Partner's interest in the Partnership is
terminated pursuant to this Section 20, the Limited Partner shall
receive ninety percent (90%) of the value of his Capital Account
within ninety (90) days after written notice of termination is given
by the Partnership and the remaining ten percent (10%) within ten (10)
business days after receipt by the Partnership of financial statements
with respect to the Fiscal Year in which his or its interest in the
Partnership is terminated.
21. Withdrawals by the General Partners and Affiliates.
(a) (i) The General Partner shall have the right to withdraw any
amount of cash from his Capital Account as of the end of any Fiscal
Year, without prior notification to the Limited Partners, provided
that, after giving effect to such withdrawal, the aggregate Capital
accounts of the General Partner and his Affiliates are not less than
$50,000 (fifty thousand dollars).
(ii) Upon forty-five (45) days' prior notice to the Limited
Partners, a General Partner or an Affiliate may withdraw any amount
from his Capital Account contributed to the Partnership as a result of
which withdrawal the aggregate Capital Accounts of the General Partner
and their Affiliates would be reduced below $50,000. (fifty thousand
dollars).
(b) The General Partner may voluntarily resign or withdraw from
the Partnership as of the end of any Fiscal Year upon sixty (60) days'
written notice sent to all Partners.
22. Dissolution and Winding Up of the Partnership.
On dissolution of the Partnership, the General Partner or if
there is no General Partner, one or more persons approved by Limited
Partners holding a majority in interest of the Capital Accounts of the
Limited Partners) shall wind up the Partnership's affairs and shall
distribute the Partnership's assets in the following manner and order:
(a) in satisfaction of the claims of all creditors of the
Partnership, other than the General Partners;
(b) in satisfaction of the claims of the General Partners as
creditors of the Partnership; and
(c) any balance to the Partners in the relative proportions that
their respective Capital Accounts bear to each other, those Capital
Accounts to be determined as if the Fiscal Year ended on the date of
the dissolution.
23. Accounting and Reports.
(a) The records and books of account of the Partnership shall be
reviewed as of the end of each fiscal Year by independent certified
public accountants selected by the General Partner in his sole
discretion.
(b) As soon as practicable after the end of each Fiscal Year, the
General Partner shall cause to be delivered to each person who was a
Partner at any time during that Fiscal Year all information deemed
necessary by the General Partner in his sole discretion for the
preparation of the Partner's income tax returns, including a Form
1065/Schedule K-1 statement showing the Partner's share of Net Profit
or Net Loss, deductions and credits for the year Federal income tax
purposes, and the amount of any distributions made to or for the
account of the Partner pursuant to this Agreement.
(c) The independent certified public accounts selected by the
General Partner in accordance with subsection (a) of this Section 23
shall prepare and mail to each Partner, within ninety (90) days after
the end of each fiscal Year, an income statement for the Fiscal Year
and a balance sheet as of the end of the Fiscal Year.
(d) The Partnership shall cause to be prepared and mailed to each
Partner a report setting out as of the end of each fiscal quarter
information determined by the General Partner to be appropriate.
(e) The General Partner shall cause tax returns for the
Partnership to be prepared and timely filed with the appropriate
authorities.
24. Books and Records.
The General Partner shall keep at the Partnership's principal
office:
(a) books and records pertaining to the Partnership's business
showing all of its assets and liabilities, receipts and disbursements,
realized profits and losses, Partners' Capital Accounts and all
transactions enter into by the Partnership;
(b) a current list of the full name and last known home, business
or mailing address of each Partner set out in alphabetical order;
(c) a copy of the Certificate and all amendments to it, together
with executed copies of any powers of attorney pursuant to which the
Certificate and any amendments to it have been executed;
(d) copies of the Partnership's Federal, state and local income
tax returns and reports, if any, for the three (3) most recent years;
and
(e) copies of this Agreement as may be amended from time to time.
All books and records of the Partnership required to be kept
under this Section 24 shall be available for inspection by a Partner
of the Partnership at the offices of the Partnership during ordinary
business hours for any purpose reasonably related to the Partner's
interest as a Partner in the Partnership.
25. Indemnification.
(a) The Partnership shall indemnify each General Partner and any
of his Affiliates (each an "Indemnitee") to the fullest extent
permitted by law and will hold each harmless from and with respect to
(i) all fees, costs and expenses incurred in connection with, or
resulting from, any claim, action or demand against any indemnitee
that arises out of or in any way relates to the Partnership, its
properties, business or affairs, and (ii) any losses or damages
resulting from any such claim, action or demand, including amounts
paid in settlement or compromise of the claim, action or demand.
(b) No Indemnitee shall be indemnified by the Partnership with
respect to any action or failure to act that does not constitute good
faith, or that constitutes willful misfeasance.
(c) The Partnership may pay the expenses incurred by an
Indemnitee in defending a civil or criminal action, suit or proceeding
brought by a party against the Indemnitee that arises out of or is in
any way related to the Partnership, its properties, business or
affairs, upon receipt of an undertaking by the Indemnitee to repay the
amount advanced by the Partnership if an adjudication or determination
is subsequently made by a court of competent jurisdiction that the
Indemnitee is not entitled to indemnification as provided in this
Agreement.
(d) The right of indemnification provided in this Section 25
shall be in addition to any rights to which an Indemnitee may
otherwise be entitled and shall inure to the benefit of the executors,
administrators, personal representatives, successors or assigns of
each Indemnitee.
(e) The rights to indemnification and reimbursement provided for
in this Section 25 may be satisfied only out of the assets of the
Partnership. No Partner shall be personally liable for any claim for
indemnification or reimbursement under this Section 25.
26. Amendment of Partnership Agreement.
This Agreement may be amended, in whole or in part, by the
written consent of (a) the General Partner, and (b) Partners the value
of whose Capital Account constitute not less than fifty percent (50%)
of the total value of all Capital Accounts of the Partnership,
provided that no such amendment shall affect the allocation of Net
Profit or Net Loss to any Partner who has not consented to such
amendment. In addition, any provision of this Agreement, other than
Section 9, may be amended by the General Partner in any manner that
does not, in the sole discretion of the General Partner, adversely
affect any Limited Partner.
27. Notices.
Notices that may or are required to be given under this Agreement
by any part to another shall be in writing and deposited in the United
States mail, certified or registered, postage prepaid, addressed to
the respective parties at their addresses set out in Schedule A to
this Agreement or to any other addressee designated by any Partner by
notice addressed to the Partnership in the case of any Limited Partner
and to the General Partner in the case of the General Partners.
Notices shall be deemed to have been given when deposited in the
United States mail within the continental United States.
28. Agreement Binding Upon Successors and Assigns.
This Agreement shall inure to the benefit of and shall be binding
upon the heirs, executors, administrators or other representatives,
successors and assigns of the Partners.
29. Governing Law.
This Agreement, and the rights of the Partners under it, shall be
governed by and construed in accordance with the law of the State of
New Jersey.
30. Consents.
Any and all consents, agreements or approvals provided for or
permitted by this Agreement shall be in writing and signed copies of
them shall be filed and kept with the books of the Partnership.
31. Miscellaneous.
(a) This Agreement, including Schedule A appended to it,
constitutes the entire understanding and Agreement of the Partners as
to the operation of the Partnership.
(b) This agreement may be executed in counterparts, each of which
shall be deemed to be an original.
(c) Each provision of this Agreement is intended to be severable.
A determination that a particular provision of this Agreement is
illegal or invalid shall not affect the validity of the remainder of
the Agreement.
(d) Nothing contained in this Agreement shall be construed to
constitute any Partner the agent of another Partner, except as
specifically provided in this Agreement, or in any manner to limit the
partners in the carrying on of their own respective business or
activities.
(e) If there is a conflict between the terms and conditions of
the Partnership Agreement and Offering Memorandum, the Partnership
Agreement shall be controlling.
IN WITNESS WHEREOF, the Partners have executed this Agreement as
of the date first above written.
GENERAL PARTNER
VETERI PLACE CORPORATION
By: Xxxxxxxx X. Xxxxxxx, President
LIMITED PARTNERS:
All Limited Partners now and
hereafter admitted as Limited
Partners of the Partnership,
pursuant to Powers of Attorney
now and hereafter executed in
favor of, and delivered to the
General Partner.
XXXXXXXX X. XXXXXXX
Attorney-in-Fact
Xxxxxxxx X. Xxxxxxx
