THE ASPETONG PARTNERS, L.P.
LIMITED PARTNERSHIP AGREEMENT
A New York Limited Partnership
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This Limited Partnership Agreement, entered into and effective the
20th day of July, 1990, by and among XXXXXX X. XXXXXXX , hereinafter known as
the general partner and hereinafter referred to as "General Partner"
A-N-D
XXXXXXX XXXXXXX, XXXX XXXXXXXX AND XXXXXX XXXXXXX, TRUSTEE FOR XXXXXXX
XXXXXXX, as limited partners and hereinafter referred to individually and
collectively as "Limited Partners" and, together with the General Partner, as
"Partner" or collectively as "Partners."
The said Partners do hereby covenant and agree to the formation of
this Limited Partnership and do hereby covenant and agree to be bound by these
Articles, to-wit:
ARTICLE I
FORMATION OF LIMITED PARTNERSHIP,
NAME, PRINCIPAL PLACE OF BUSINESS
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Section 1.1. FORMATION. The Partners hereby form a Limited
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Partnership pursuant to the provisions of the New York Limited Partnership Act.
Section 1.2. NAME. The Partnership shall operate under the name
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ASPETONG PARTNERS, L.P.
Section 1.3. PRINCIPAL PLACE OF BUSINESS. The principal place of
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business shall be located at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx, or such other
places of business as may be designated by the General Partner from time to
time.
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Section 1.4. TERM OF EXISTENCE. Unless continued by a vote to do so
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by the Partners owning at least a seventy-five (75%) percent interest in the
Partnership, this Partnership shall terminate on December 31, 2030.
ARTICLE II
ACCOUNTING FOR THE PARTNERSHIP
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Section 2.1. METHOD OF ACCOUNTING. The Partnership shall keep its
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accounting records and shall report for income tax purposes on the cash basis.
The records shall be maintained in accordance with generally accepted accounting
principles.
Section 2.2. ANNUAL STATEMENTS. Financial statements may be prepared
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to the extent necessary in the opinion of the General Partners by an independent
public accountant and any copies of such statements shall be delivered to each
adult Partner or the guardian or Trustee for any minor Partner. Copies of all
income tax returns filed by the Partnership also shall be furnished to all
Partners.
Section 2.3. ANNUAL MEETING TO REVIEW FINANCIAL STATEMENTS. As soon
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as possible after completion of Partnership financial statements, if any, a
meeting shall be held of all Partners. All annual meetings shall be held at the
principal place of business of the Partnership on the second Monday in January
of each year unless otherwise provided pursuant to actual or constructive notice
to each Partner.
Section 2.4. INTERIM FINANCIAL STATEMENTS. On written request, any
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Limited Partner shall be entitled to copies of any interim financial statements
prepared for the General Partner.
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ARTICLE III
CAPITAL CONTRIBUTIONS
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Section 3.1. INITIAL CAPITAL CONTRIBUTIONS. The initial capital
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contributions shall be as follows:
GENERAL PARTNER:
Xxxxxx X. Xxxxxxx $ 1.00
LIMITED PARTNERS:
Xxxxxxx Xxxxxxx $33.00
Xxxx Xxxxxxxx $33.00
Xxxxxx Xxxxxxx, Trustee for
Xxxxxxx Xxxxxxx $33.00
Section 3.2. RESPECTIVE INTERESTS OF PARTNERS. The General Partner
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shall have a one (1%) percent interest in the Partnership. The interest of the
Limited Partners is as follows:
Xxxxxxx Xxxxxxx 33%
Xxxx Xxxxxxxx 33%
Xxxxxx Xxxxxxx, Trustee for
Xxxxxxx Xxxxxxx 33%
Section 3.3. RETURN OF CAPITAL CONTRIBUTIONS. No Limited Partner
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shall be entitled to withdraw or demand the return of any part of his capital
contribution except upon dissolution of the Partnership and as specifically
provided for in this Agreement.
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ARTICLE IV
CAPITAL ACCOUNTS: DRAWING ACCOUNTS
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Section 4.1. CAPITAL ACCOUNTS. An individual capital account shall
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be maintained for the General Partner and each Limited Partner. The capital
interest of the General Partner and each Limited Partner shall consist of his
original contribution increased by (a) his additional contributions to capital
and (b) his share of Partnership profits transferred to capital, and decreased
by (a) distributions to him in reduction of his Partnership capital and (b) his
share of Partnership losses if transferred from his drawing account.
Section 4.2. DRAWING ACCOUNTS. An individual drawing account may be
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maintained for the General and each Limited Partner to the extent deemed
necessary by the General Partner. All withdrawals other than the salary of the
General shall be charged to his drawing account. Each Partner's share of
profits and losses shall be credited or charged to his drawing account.
A credit balance of a Partner's drawing account shall constitute a
Partnership liability to that Partner; it shall not constitute a part of his
capital account or his interest in the capital of the Partnership. If, after
the net profit or the net loss of the Partnership for the fiscal year has been
determined, a Partner's drawing account shows a deficit (a debit balance),
whether occasioned by drawings in excess of his share of Partnership profits or
by charging him for his share of a Partnership loss, the deficit shall
constitute an obligation of that Partner to the Partnership to the extent of the
Partner's capital account, but in no event shall any Limited Partner be liable
for any amount beyond the balance in his capital account.
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Payment of any amount owing to the Partnership shall be made in a
manner and time determined by the General Partner. Such obligations shall not
be made payable on demand nor shall interest be charged thereon above the prime
interest rate plus one (1) percentage point. The Limited Partners may
determine, by vote of a majority in interest, to transfer any portion of their
respective profit or loss to their capital accounts at any time, provided the
transfers do not change the Partners' respective Partnership interests except by
written consent of all Partners.
ARTICLE V
PROFITS OR LOSSES
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Section 5.1. INTERESTS IN PROFITS OR LOSSES. The net profits or net
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losses of the Partnership shall be credited or charged to the Partners in
proportion to their Capital Accounts).
Section 5.2. LIMITATION ON LIABILITY FOR LOSSES CHARGEABLE TO LIMITED
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PARTNERS. No Limited Partner shall personally be liable for any of the losses
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of the Partnership beyond his capital interest in the Partnership.
Section 5.3. DISTRIBUTION OF PROFITS. The earnings of the
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Partnership may be retained by the Partnership and transferred to Partnership
capital for the reasonable needs of the business as determined in the sole
discretion of the General Partner.
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ARTICLE VI
ADMINISTRATIVE PROVISIONS
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Section 6.1. MANAGEMENT. The business of the Partnership shall be
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under the exclusive control of the General Partner. The Limited Partners shall
not participate in the management of the business of the Partnership.
Section 6.2. SUCCESSOR GENERAL PARTNER. The Limited Partners agree
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that in the event Xxxxxx X. Xxxxxxx dies or is declared legally incompetent
before his wife, Xxxxxx Xxxxxxx, is 60 years old, then Xxxxxx Xxxxxxx shall be
General Partner.
Section 6.3. TIME DEVOTED BY GENERAL PARTNER.. The General Partner
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shall devote such time to the business of the Partnership as is reasonable and
prudent.
Section 6.4. BANKING. All funds in the Partnership shall be
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deposited in its name in such bank account or accounts as shall be designated by
the General Partner.
All withdrawals therefrom shall be made upon checks signed by the
General Partner.
Section 6.5. VALIDITY. If any portions of this Agreement shall be
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held invalid or inoperative, then, insofar as it is reasonable and possible,
(a) the remainder of this Agreement shall be considered valid
and operative, and
(b) effect shall be given to the intent manifested by the
portion held invalid or inoperative.
Section 6.6. INDEMNIFICATION. The Partnership shall promptly
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indemnify the General Partner for payments reasonably made and personal
liabilities reasonably incurred by him in the ordinary conduct of Partnership
business, or for the preservation of its business or property.
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Section 6.7. POWERS OF THE GENERAL PARTNER. The General Partner
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shall conduct the business of the Limited Partnership with full and complete
power to do any and all things, including acting through a Managing General
Partner or through any duly authorized manager or other agent, except as
otherwise provided herein. The General Partner shall have and is hereby granted
the usual, proper and necessary authority and powers to manage, control,
operate, conduct and carry on the business of the Partnership; keep the books
and records thereof; employ, discharge and pay and compensate necessary
employees, clerks, and helpers; and have the authority to draw checks and drafts
on the Partnership bank accounts. The General Partner shall be under no
obligation to spend any of the capital of the Limited Partnership, but he may
use such portions thereof as he deems to be for the best interests of the
Partnership.
The General Partner may by agreement, grant, assign ,transfer, lease
or let any of the property of the Limited Partners, whether real or personal, in
furtherance of the business of the Partnership and, in connection therewith, to
execute in the Partnership's name, any and all deeds, documents, bills of sale,
and other papers pertaining to the business of the Partnership.
In order to conduct and carry on the general purposes for which this
Limited Partnership is organized, the General Partner may borrow money from time
to time for and on behalf of this Limited Partnership from any bank, trust
company, or other individuals or lending agencies; may renew and extend such
loans from time to time; may make, execute and deliver promissory notes,
endorsements and other obligations of this Partnership as evidence of any such
loans and the interest thereon by the pledge, conveyance, mortgage, or
assignment in trust of the whole or any part of the property of this Partnership
owned at the time or acquired thereafter.
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ARTICLE VII
SALARY OF GENERAL PARTNER
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Annually, the General Partner may receive a reasonable salary for
services rendered, which shall be in addition to his respective share of
Partnership profits. The salary received shall be determined by the General
Partner, but shall be reasonable compensation for services rendered by him to
the Partnership.
ARTICLE VIII
DURATION OF BUSINESS, DISSOLUTION, ARBITRATION
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Section 8.1. TERM. The Limited Partnership shall continue (a) until
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all of the interests in the property acquired by it have been sold or disposed
of, or have been abandoned; or (b) until dissolved and terminated as provided
for herein below; or (c) the expiration of the time period contained in Article
I.
Section 8.2. NON-INTERRUPTION OF PARTNERSHIP. The Limited
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Partnership shall not be terminated by the death, insanity, bankruptcy,
withdrawal or expulsion of any Limited Partner; by an assignment by any Limited
Partner; or admission of an additional or substitute General Partner. An
additional or substitute General Partner shall be admitted upon the written
consent of all Partners.
Section 8.3. DISSOLUTION OF THE PARTNERSHIP. The Limited Partnership
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shall be dissolved only upon the occurrence of any of the following events:
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A. In the event that the General Partner (or his successor, Xxxxxx
Xxxxxxx, under the provisions of Section 6.2 of this Limited Partnership
Agreement) shall cease to act by reason of incapacity or death, if the majority
of the Limited Partners shall fail to elect a successor to the General Partner
within thirty (30) days of the date upon which the General Partner shall cease
to act.
B. The disposition or sale of all interests in real estate and other
Partnership assets.
C. The expiration of the time period set forth in Article I.
D. Voluntary dissolution of the Partnership by agreement of all of the
Partners, both General and Limited.
E. The entry of a dissolution decree or judicial order by a court of
competent jurisdiction or by operation of law.
Section 8.4 WINDING UP. In the event of dissolution and final
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termination:
a. The General Partner shall wind up the affairs of the Limited
Partnership, shall sell all the Limited Partnership assets as promptly as is
consistent with obtaining, insofar as possible, the fair value thereof, and
after paying all liabilities, and including all costs of dissolution, and
subject to the right of the General Partner to set up cash reserves, to meet
short-term Partnership liabilities, other liabilities or obligations of the
Limited Partnership, shall distribute the remainder of the assets to the
Partners pursuant to the relevant provisions of this Agreement.
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ARTICLE IX
TRANSFER OF INTEREST OF A LIMITED PARTNER
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Section 9.1. NON-PERMITTED TRANSFERS. A Limited Partner may not,
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during his lifetime, endorse, sell, give, pledge, encumber, assign, transfer or
otherwise dispose of, voluntarily or involuntarily or by operation of law
("Transfer"), all or any part of his interest in the Partnership, unless a
majority of the other Partners consent to such Transfer and all of the other
provisions of this Article IX have been satisfied.
Section 9.2. PERMITTED TRANSFERS. Notwithstanding the restriction
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set forth in paragraph 9.1., a Limited Partner may Transfer all or part of his
Partnership interest by sale, gift, bequest or otherwise to or for the benefit
only of (i) any of the other Limited Partners, or (ii) any lineal descendant of
such transferring Limited Partner. The provisions of this section shall survive
dissolution and winding up of the Partnership, and any stock distributed to the
Limited Partners shall bear a legend limiting any Transfer in accordance with
the provisions of this section.
Section 9.3. SUBSTITUTED LIMITED PARTNER. No assignee or transferee
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of the whole or any portion of a Limited Partner's interest in the Limited
Partnership shall have the right to become a substituted Limited Partner in
place of his assignor unless all of the following conditions are satisfied:
A. The General Partner, in his sole and absolute discretion, has
consented in writing to the admission of the assignee as a substituted Limited
Partner;
B. The fully executed and acknowledged written instrument of
assignment which has been filed with the Limited Partnership sets forth the
intention of the assignor that the assignee become a substitute Limited Partner;
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C. The assignor and assignee execute and acknowledge such other
instruments as the General Partner may deem necessary or desirable to effect
such admission, including the written acceptance and adoption by the assignee of
the provisions of this Agreement and his execution, acknowledgment and delivery
to the General Partner of a Power of Attorney, the form and content of which
shall be provided by the General Partner;
D. The General Partner will be required to amend the Agreement of
Limited Partnership only quarterly to reflect the substitution of Limited
Partners. Until the Agreement of Limited Partnership is so amended, an assignee
shall not become a substituted Limited Partner.
E. Upon the death or legal incompetency of an individual Limited
Partner, only Qualified Fidicuaries as defined herein may act on behalf of a
Limited Partner. The term "Qualified Fidicuaries" is defined as other living or
legally competent Limited Partners or any lineal descendent of the deceased or
legally incompetent Limited Partner.
F. Upon the bankruptcy, insolvency, dissolution or other cessation to
exist as a legal entity of a Limited Partner not an individual, the authorized
representative of such entity shall have all the rights of a Limited Partner for
the purpose of effecting the orderly winding up and disposition of the business
of such entity and such power as such entity possessed to constitute a successor
or assignee of its interest in the Limited Partnership and to join with such
assignee in making application to substitute such assignee as a Limited Partner.
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G. Anything in this Agreement to the contrary notwithstanding, no
Limited Partner or other person who has become the holder of interests in this
Limited Partnership shall transfer, assign or encumber all or any portion of his
interests in the Limited Partnership during any fiscal year if such transfer,
assignment or encumbrance would, in the sole and unreviewable opinion of the
counsel for the Partnership, result in the termination of the Partnership for
purposes of the then-applicable provisions of the Internal Revenue Code.
H. In the event a vote of the Limited Partners shall be taken
pursuant to this Agreement for any reason, a Limited Partner shall, solely for
the purpose of determining the number of Partnership interests held by him in
weighing his vote, be deemed the holder or any Partnership interests assigned by
him in respect of which the assignee has not become a substituted Limited
Partner.
I. Anything in this Agreement to the contrary notwithstanding, no
Limited Partner or other person who has become the holder of interests in the
Partnership shall transfer, assign, or encumber all or any portion of his
interests in the Limited Partnership unless obtaining the prior written consent
of the Director of the Securities Commission, if required under the Commission's
rules and the opinion of counsel for the Partnership, so that the transfer will
not violate any federal or applicable state securities laws.
J. Except for a Transfer pursuant to Section 9.2 hereof, a Limited
Partner may not sell his Partnership interest or any part thereof unless he has
first offered it to the Partnership as follows:
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(1) The Limited Partner shall give written notice to the Partnership that
he desires to sell his interest. He shall attach to that notice the
written offer of a prospective purchaser to buy the interest. The
Limited Partner may not offer his interest in the Partnership to any
third party unless and until he has first offered it to the partners
in Wye Investments, a Pennsylvania limited partnership. This offer
shall be complete in all details of purchase price and terms of
payment. The Limited Partner shall certify that the offer is genuine
and in all respects what it purports to be, the bona fide purchaser
shall be financially capable of fulfilling the terms of the offer and
he has first offered it to the partners in Wye Investments.
(2) For 60 days from receipt of the written notice from the Limited
Partner, the Partnership shall have the option to retire the interest
of the Limited Partner at the price and on the terms contained in the
offer submitted by the Limited Partner.
(3) If the Partnership does not exercise the option to acquire his
interest, the Limited Partner shall be free to sell his Partnership
interest to the said prospective purchaser for the price, and on the
terms contained in the offer submitted by the Limited Partner,
providing he has met the other conditions of this Article IX.
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ARTICLE X
VOLUNTARY DISSOLUTION
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Section 10.1 WINDING UP THE PARTNERSHIP. On any voluntary dissolution,
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the Partnership shall immediately commence to wind up its affairs. The Partners
shall continue to share profits and losses during the period of liquidation in
the same proportions as before dissolution. The proceeds from liquidation of
Partnership assets shall be applied as follows:
A. Payment to creditors of the Partnership, other than Partners, in
the order of priority provided by the law.
B. Payment to the General Partner for unpaid salaries and
reimbursements.
C. Payment to the Partners of credit balances in their capital
accounts.
Section 10.2. GAINS OR LOSSES IN PROCESS OF LIQUIDATION. Any gain or loss
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on disposition of Partnership properties in liquidation shall be credited or
charged to the Partners in the proportions of their interest in profits or
losses as specified in Section 6.1. Any property distributed in kind as the
result of liquidation shall be valued and treated as though the property were
sold and the cash proceeds were distributed. The difference between the value
of property distributed in kind and its book value shall be treated as a gain or
loss on sale of property and shall be credited or charged to the Partners in the
proportions of their interests in profits and losses as specified in Section
6.1.
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ARTICLE XI
AMENDMENTS
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Except with respect to vested rights of the Partners, this Partnership
Agreement may be amended at any time by an eighty (80%) percent vote as measured
by the interest in the sharing of profits and losses and with the assent of the
General Partner. A copy of any amendment shall be promptly mailed or delivered
to each Partner at his or her last known address.
ARTICLE XII
POWER OF ATTORNEY
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Each Limited Partner makes, constitutes, and appoints the General Partner,
with full power of substitution, his true and lawful attorneys for him and in
his name, place and xxxxx and for his use and benefit, to sign, execute,
certify, acknowledge, file and record this Agreement, and to sign, execute,
certify, acknowledge, file and record all appropriate instruments or documents:
(i) to reflect the exercise by the General Partner of any of the powers granted
to them under this Agreement; (ii) to reflect any amendments duly made to the
Agreement; (iii) to reflect the admission to the Partnership of a substituted
Limited Partner or the withdrawal of any Partner, in the manner prescribed in
this Agreement; and (iv) which may be required of the Partnership or of any
Partner by the laws of our State or any other jurisdiction or governmental
agency. Each Limited Partner authorizes such attorney-in-fact to take any
further action which such attorney-in-fact shall consider necessary or advisable
to be done in and about the foregoing (including the power to consent to items
(i), (ii), (iii) and (iv) above as fully as such Limited Partner might or could
do if personally present) and hereby ratifies and confirms all that such
attorneys-in-fact shall lawfully do or cause to be done by virtue hereof.
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IN WITNESS WHEREOF the parties hereto set their hands and seals this 20th
day of July, 1990.
GENERAL PARTNER:
___________________________
Xxxxxx X. Xxxxxxx
LIMITED PARTNERS:
___________________________
Xxxxxxx Xxxxxxx
___________________________
Xxxx Xxxxxxxx
___________________________
Xxxxxx Xxxxxxx, Trustee for
Xxxxxxx Xxxxxxx
DC1DOCS10\18770\99999.101625
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