Exhibit 3.75
AGREEMENT OF LIMITED PARTNERSHIP
OF
PMWQ, LTD.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS..........................................................1
ARTICLE II
GENERAL..............................................................2
2.1 Formation...................................................2
2.2 Name........................................................3
2.3 Investment..................................................3
2.4 Merger or Consolidation.....................................3
ARTICLE III
COMMENCEMENT DATE; TERM OF PARTNERSHIP...............................3
ARTICLE IV
PURPOSES.............................................................3
ARTICLE V
GENERAL PARTNER AND PLACE OF BUSINESS................................4
ARTICLE VI
CAPITAL CONTRIBUTIONS................................................4
6.1 General Partner's Initial Contribution......................4
6.2 Limited Partner's Initial Contribution......................4
6.3 Limited Liability for Limited Partners......................4
6.4 Voluntary Contribution(s)...................................5
6.5 Readjustment of Percentage Interests........................5
ARTICLE VII
CAPITAL ACCOUNTS.....................................................5
7.1 Establishment of Capital Accounts...........................5
7.2 Credits and Debits..........................................5
7.3 Accounting for Partner's Loans..............................6
7.4 Return of Capital...........................................6
7.5 Partition...................................................6
ARTICLE VIII
CONTROL AND MANAGEMENT...............................................6
8.1 Role of General Partner.....................................6
8.2 General Partner's Authority.................................7
8.3 Limitations.................................................8
8.4 Liability of General Partner................................8
8.5 Indemnification of General Partner..........................8
8.6 Contracts with Affiliates...................................8
8.7 Tax Matters Partner.........................................9
8.8 Ownership of Partnership Property...........................9
ARTICLE IX
RIGHTS AND OBLIGATIONS OF LIMITED PARTNER............................9
9.1 Limited Liability...........................................9
9.2 Return of Distributions.....................................9
9.3 No Management Rights........................................9
9.4 No Authority to Bind Partnership...........................10
9.5 Rights Specified in the Act................................10
ARTICLE X
ACCOUNTING PRINCIPLES; PERCENTAGE INTERESTS;
ALLOCATIONS AND DISTRIBUTIONS.......................................10
10.1 Accounting Principles......................................10
10.2 Percentage Interests.......................................10
10.3 Allocations................................................11
10.4 Distributions..............................................11
10.5 Compliance with Treasury Regulations.......................11
ARTICLE XI
LOANS TO PARTNERSHIP................................................11
ARTICLE XII
TRANSFERS OF PARTNERSHIP INTERESTS..................................11
12.1 Restriction on Transfers by Limited Partner................11
12.2 General Partner as Limited Partner.........................11
12.3 Transfer by General Partner................................12
ARTICLE XIII
DISSOLUTION AND TERMINATION.........................................12
13.1 Events of Dissolution......................................12
13.2 Election of New General Partner............................13
13.3 No Release from Liabilities................................13
13.4 Distributions in Liquidation...............................13
13.5 Distributions in Kind......................................14
ARTICLE XIV
ACCOUNTING..........................................................14
14.1 Fiscal Year................................................14
14.2 Books and Records..........................................14
14.3 Inspection of Records......................................15
14.4 Tax Returns................................................15
ARTICLE XV
REPORTS AND STATEMENTS..............................................15
ARTICLE XVI
BANK ACCOUNTS.......................................................15
ARTICLE XVII
NOTICES.............................................................16
ARTICLE XVIII
POWER OF ATTORNEY...................................................16
ARTICLE XIX
AMENDMENT...........................................................17
ARTICLE XX
RELIANCE ON AUTHORITY...............................................17
ARTICLE XXI
MISCELLANEOUS.......................................................17
21.1 Applicable Laws............................................17
21.2 Cumulative Remedies........................................17
21.3 Counterparts...............................................18
21.4 Successors and Assign......................................18
21.5 Entire Agreement...........................................18
21.6 Personal Property..........................................18
21.7 Invalidity of Provisions...................................18
21.8 Signature Pages............................................18
21.9 Attorneys' Fees............................................19
Exhibit A General Partner's Contribution
Exhibit B Limited Partner's Contribution
AGREEMENT OF LIMITED PARTNERSHIP
OF
PMWQ, LTD.
THIS AGREEMENT OF LIMITED PARTNERSHIP is made and entered into
between PMWQ, Ltd., a Nevada corporation, its successors and assigns,
referred to in this Agreement as the "General Partner", and Dealership
Properties, Inc., a Nevada corporation, its successors and assigns,
referred to in this Agreement as the "Limited Partner".
ARTICLE I
DEFINITIONS
The following terms have the following meanings when used in this
Agreement:
"Act" means the Texas Revised Limited Partnership Act.
"Affiliate" means any person or entity that controls or is
controlled by the General Partner, or is controlled by the same person or
entity that controls the General Partner. In this definition, the term
"control" includes the ownership of more than fifty percent (50%) of the
beneficial interest in the person or entity.
"Agreement" or "Partnership Agreement" means this agreement of
limited partnership, including any amendments that may be made.
"Bankruptcy" means, as to any Partner, the Partner's taking, or
acquiescing in the taking, of any action seeking relief under, or advantage
of, any applicable debtor relief, liquidation, receivership,
conservatorship, bankruptcy, moratorium, rearrangement, insolvency,
reorganization or similar law affecting the rights or remedies of
creditors, generally, as in effect from time to time. For the purpose of
this definition, the term "acquiescing" shall include, without limitation,
the failure to file, within ten (10) days after its entry, a petition,
answer, or motion to vacate or to discharge any order, judgment, or decree
providing for any relief under any such law.
"Capital Contribution(s)" means the contribution(s) made to the
capital of the Partnership from time to time by a Partner in cash or
property.
"Certificate" means the certificate of limited partnership to be
filed by the General Partner with the Secretary of State of Texas in
accordance with this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Effective Date" means the date the Secretary of State of Texas
files the Certificate.
"Exhibits" means all exhibits which are attached hereto and
incorporated herein by reference for all purposes.
"Partners" mean both the General Partner and the Limited Partner
and any new or additional general partner or limited partner that becomes
party to this Agreement.
"Partnership" shall mean the limited partnership formed under this
Agreement, as constituted or amended.
"Percentage Interest" means the interest of a Partner in the
capital and profits and losses of the partnership as initially set forth in
paragraph 10.2 of this Agreement.
"Person" means an individual or a corporation, partnership, trust,
unincorporated organization, association, or other entity.
"Transfer" means the mortgage, pledge, hypothecation, transfer,
sale, assignment, or other disposition of any part or all of an interest in
the Partnership by any Partner, whether voluntarily, by operation of law or
otherwise.
ARTICLE II
GENERAL
2.1 Formation. By this Agreement, the General Partner and the
Limited Partner hereby agree to form and establish the Partnership pursuant
to the Act. Prior to conducting any business in any jurisdiction, the
General Partner shall promptly file the Certificate as required by the Act
and comply with all other legal requirements for the formation and
operation of the Partnership. Except as expressly provided in this
Agreement, the Act shall govern the rights and liabilities of the Partners.
2.2 Name. The name of the Partnership shall be PMWQ, Ltd. The
General Partner may change the name of the Partnership or adopt such trade
or fictitious names as it may determine appropriate.
2.3 Investment. The Limited Partner represents that it is
acquiring an interest in the Partnership for investment for its own
account, and not with a view to any sale or distribution of that interest.
2.4 Merger or Consolidation. The Partnership may merge or
consolidate with or into another limited partnership or other business
entity, or enter into an agreement to do so, only with the written consent
of the General Partner and Limited Partner.
ARTICLE III
COMMENCEMENT DATE; TERM OF PARTNERSHIP
The Partnership shall commence and be effective on the Effective
Date as set out in the certificate of limited partnership. The Partnership
shall continue in existence until it is terminated, liquidated or dissolved
in accordance with this Agreement or by operation of law.
ARTICLE IV
PURPOSES
The purposes of the Partnership shall be (a) to own all property
and employ personnel necessary to conduct the business of the Partnership;
(b) to do all other acts necessary to carry out the business of the
Partnership; and (c) to engage in all other activities that are permitted
under applicable laws and that are approved by the Partners.
ARTICLE V
GENERAL PARTNER AND PLACE OF BUSINESS
The General Partner of the Partnership is PMWQ, Inc. with offices
at 0000 X. Xxxxxx, Xxxxxxxx, Xxxxx 00000. The principal place of business
of the Partnership is the above-referenced address of the General Partner.
The General Partner may maintain other offices for the Partnership as it
may determine to be necessary or advisable from time to time. Any requests
for information concerning the Partnership shall be directed to the General
Partner at the principal place of business of the Partnership.
Xxxxxx X. Xxxx shall serve as the registered agent of the
Partnership. The address of the registered agent and the registered office
of the Partnership in the State of Texas shall be 0000 X. Xxxxxx, Xxxxxxxx,
Xxxxx 00000. The address and the name of the registered agent of the
Partnership maybe changed as the General Partner may designate by written
notice to the Limited Partner and by filing an amended Certificate with the
Secretary of State.
ARTICLE VI
CAPITAL CONTRIBUTIONS
6.1 General Partner's Initial Contribution. At the time of
execution of this Agreement, the General Partner shall contribute to the
capital of the Partnership pursuant to Exhibit A. In exchange for this
contribution, the General Partner will have the Percentage Interest in the
Partnership set forth in paragraph 10.2 of this Agreement.
6.2 Limited Partner's Initial Contribution. At the time of
execution of this Agreement, the Limited Partner shall contribute to the
capital of the Partnership pursuant to Exhibit B. In exchange for this
contribution, the Limited Partner will have the Percentage Interest in the
Partnership set forth in paragraph 10.2 of this Agreement.
6.3 Limited Liability for Limited Partners. The liability of the
Limited Partner to the Partnership is limited to the amount of its capital
contribution. Accordingly, the contributions called for in paragraph 6.2
are the only property the Limited Partner is required to furnish to the
Partnership, whether by way of contribution, loan, or otherwise.
6.4 Voluntary Contribution(s). At any time, the General Partner
may determine that additional contributions of cash or property to the
Partnership are desirable. Within ten (10) days following the receipt of
notice from the General Partner, the Limited Partner may contribute cash or
property to the Partnership as a "Voluntary Capital Contribution" on the
terms and subject to the conditions set forth in the notice from the
General Partner. All such additional voluntary capital contributions shall
be requested in proportion to the then Percentage Interests of the Partners
in the Partner ship.
6.5 Readjustment of Percentage Interests. If any Partner elects to
participate in a voluntary capital contribution as described in paragraph
6.4 in any amount less than that Partner's current, Percentage Interest, or
elects not to participate at all, then the Percentage Interest of the
Partners shall be readjusted based on the newly adjusted capital account
balance of each Partner. Nothing in this Agreement shall obligate any
Partner to make any additional contributions to the Partnership.
ARTICLE VII
CAPITAL ACCOUNTS
7.1 Establishment of Capital Accounts. Separate capital accounts
shall be established and maintained for each Partner in accordance with
Section 1.704-1(b)(2)(iv) of the Treasury Regulations, as amended from time
to time.
7.2 Credits and Debits. All Capital Contributions of a Partner,
its allocable share of Partnership income and loss, and cash or property
distributions made to such Partner shall be credited or charged to such
Partner's individual capital accounts as the case may be. To the extent an
allocation or adjustment is not specifically described by this provision of
this Agreement, that item shall be reflected in the Partner's capital
accounts in accordance with Section 1.704-(b)(2)(iv) of the Treasury Regula
tions, as amended from time to time.
The capital accounts shall not bear interest.
7.3 Accounting for Partner's Loans. Loans made by a Partner to the
Partnership shall not be considered capital contributions.
7.4 Return of Capital. No Partner has the right to demand the
return of all or a portion of its capital contribution other than in cash
and except as provided in this Agreement.
7.5 Partition. All interests in the property owned by the
Partnership shall be deemed owned by the Partnership as an entity. No
Partner, individually, shall have any ownership of such property or
interest except as a Partner in the Partnership. Each of the Partners
irrevocably waives, during the term of the Partnership and during any
period of its liquidation following any dissolution, any right that it may
have to maintain any action for partition with respect to any of the assets
of the Partnership.
ARTICLE VIII
CONTROL AND MANAGEMENT
8.1 Role of General Partner.
(a) The General Partner has full, exclusive, and complete
discretion in the management and control of the Partnership for any of the
purposes set forth in Article IV of this Agreement, and shall make all
decisions affecting the business of the Partnership and its operations,
unless specifically stated otherwise in this Agreement.
(b) The General Partner agrees to conduct the business
and operations of the Partnership contemplated under this Agreement in a
careful and prudent manner, and in accordance with good industry practice.
(c) The General Partner (or any successor to the General
Partner) agrees to serve as general partner of the Partnership until the
Partnership is terminated without reconstitution as provided below.
8.2 General Partner's Authority. Subject to any limitations
expressly set forth in this Agreement, the General Partner is expressly
authorized to perform any of the following acts on behalf of the
Partnership:
(a) Any and all acts necessary or appropriate to the
acquisition and management of the Partnership and interests in the
Partnership.
(b) Maintenance of all necessary Partnership books and
records.
(c) Commencement of litigation or defense of litigation,
including settlement of any litigation, involving the Partnership.
(d) Establishment of bank accounts in which all
Partnership funds shall be deposited and from which payments shall be made.
(e) Procuring and maintaining insurance with responsible
companies as may be available in such amounts and covering such risks as
are deemed appropriate by the General Partner.
(f) Taking and holding all real, personal, and mixed
property of the Partnership in the name of the Partnership.
(g) Executing and delivering, on behalf of and in the
name of the Partnership, contracts, agreements, and other documents.
(h) Coordinating all accounting and clerical functions of
the Partnership and employing accountants, lawyers, engineers and other
management or service personnel as may from time to time be required to
carry on the business of the Partnership.
(i) Filing tax returns and making elections on behalf of
the Partnership as provided under the Code.
(j) Establishing and maintaining the capital accounts of
the Partnership.
8.3 Limitations. Notwithstanding the generality of the General
Partner's authority, the General Partner is not empowered, without the
written consent of the Limited Partner, to:
(a) Do any act in contravention of this Partnership
Agreement.
(b) Do any act that would make it impossible to carry out
the ordinary business of the Partnership, except as specifically permitted
by the terms of this Agreement.
(c) Confess a judgment against the Partnership.
(d) Possess Partnership property or assign any rights in
specific Partnership property for other than a Partnership purpose.
(e) Require any Partner to make any contribution to the
capital of the Partnership not provided for in this Agreement.
(f) Amend this Partnership Agreement.
8.4 Liability of General Partner. The General Partner shall not be
liable, responsible, or accountable in damages or otherwise to the Limited
Partner or the Partnership for any act performed by the General Partner in
good faith and within the scope of this Agreement. The General Partner is
liable to the Limited Partner only for conduct that involves gross
negligence, bad faith, or fraud.
8.5 Indemnification of General Partner. The Partnership shall
indemnify and hold harmless the General Partner and its officers,
directors, sharehold ers, agents, and representatives from and against any
loss, damage, liability, cost or expense (including reasonable attorneys'
fees) arising out of any act or failure to act by the General Partner in
carrying out its duties under this Agreement, specifically including its
sole, partial, or concurrent negligence, to the greatest extent permitted
under the Act.
8.6 Contracts with Affiliates. Notwithstanding anything in this
Agreement to the contrary, it is understood and agreed that the Partnership
may employ any Partner and any person affiliated with any Partner to render
services on behalf of the Partnership and may compensate the person
rendering the services on customary terms and at competitive rates.
8.7 Tax Matters Partner. The General Partner is authorized and
required to represent the Partnership in connection with all examinations
of the Partnership affairs by tax authorities, including administrative and
judicial proceedings, and to expend Partnership funds for professional
services and costs in connection with such examinations. The General
Partner is the "Tax Matters Partner" for federal tax purposes and has
authority, in its sole and absolute discretion, to represent the
Partnership and the Partners in this regard. The Limited Partner agrees to
cooperate and to do or refrain from doing any and all things reasonably
required by the Tax Matters Partner to conduct these sorts of proceedings.
8.8 Ownership of Partnership Property. The General Partner is
specifically authorized, at its election, and in its sole discretion, to
hold the property of the Partnership in the name of the Partnership or in
the name of the General Partner.
ARTICLE IX
RIGHTS AND OBLIGATIONS OF LIMITED PARTNER
9.1 Limited Liability. Except as provided in the Act, the Limited
Partner, as such, shall have no liability whatsoever, whether to the
Partnership, the General Partner, or any creditor of the Partnership, for
any of the debts or losses of the Partnership beyond its Capital
Contribution to the Partnership.
9.2 Return of Distributions. Notwithstanding to the contrary in
paragraph 9.1, to the extent that the Partnership's liabilities to its
creditors are not discharged by the Partnership or by the General Partner,
the Limited Partner will be liable to return to the Partnership the
proportionate amount of any distribution made to the Limited Partner to the
extent required by the Act.
9.3 No Management Rights. The Limited Partner may not take part in
the management of the Partnership or transact any business for or on behalf
of the Partnership. All management responsibility is vested in the General
Partner, subject to the approval of the Limited Partner in those specific
instances described in this Agreement.
9.4 No Authority to Bind Partnership. The Limited Partner has no
power or authority to sign for or to bind the Partnership. All authority to
act on behalf of the Partnership is vested in the General Partner.
9.5 Rights Specified in the Act. The Limited Partner shall be
entitled to all rights of limited partners contained in the Act to the
extent that those rights have not been superseded by the provisions of this
Agreement in accordance with the Act and other applicable law.
ARTICLE X
ACCOUNTING PRINCIPLES; PERCENTAGE INTERESTS;
ALLOCATIONS AND DISTRIBUTIONS
10.1 Accounting Principles. The net income and net loss of the
Partnership (and each item of income, gain, loss, deduction, or credit
entering into the computation of net income and net loss) shall be
determined on an annual basis in accordance with the accounting methods
followed by the Partnership for federal income tax purposes and otherwise
in accordance with generally accepted accounting principles and procedures.
10.2 Percentage Interests.
(a) The phrase "Percentage Interest" of each Partner
means that particular Partner's interest in the capital, net income, net
loss, and distributions, of the Partnership as set forth in this paragraph
of this Agreement.
(b) The initial Percentage Interest of each Partner shall
be as set forth below:
Partner Percentage Interest
PMWQ, Inc. 1%
Dealership Properties, Inc. 99%
(c) The Percentage Interest of each Partner may be
adjusted from time to time by the methods and for the reasons described
elsewhere in this Agreement, including but not limited to the provisions of
paragraphs 6.4 and 6.5.
10.3 Allocations. All net income, net losses, and credits and
items of gain or loss of the Partnership shall be allocated to each Partner
in accordance with each Partner's Percentage Interest.
10.4 Distributions. All cash flow available for distribution to
the Partners, subject to the establishment of reserves in the General
Partner's reasonable determination, shall be distributed to the Partners in
accordance with their respective Percentage Interests.
10.5 Compliance with Treasury Regulations. It is intended that the
allocation and distribution provisions set forth in this Article X shall be
applied in a manner consistent with the provisions of Sections 704 and 706
of the Code, and the Treasury Regulations promulgated for those Sections.
The General Partner shall have reasonable discretion to apply the
allocation and distribution provisions set forth in this Article X in any
manner consistent with Sections 704 and 706 of the Code and such Treasury
Regulations.
ARTICLE XI
LOANS TO PARTNERSHIP
Any Partner may lend funds to the Partnership for Partnership
business. The amount of any loan or advance by the Partner shall bear
interest at the lesser of: (i) the applicable federal rates as defined in
Section 1274 of the Code x 130% plus 50 basis points; or (ii) the maximum
permissible interest rate allowable under applicable usury laws. Loans made
under this provision of this Agreement shall be deemed an obligation of
indebtedness from the Partnership to the Partner, payable prior to any
distributions to the Partners.
ARTICLE XII
TRANSFERS OF PARTNERSHIP INTERESTS
12.1 Restriction on Transfers by Limited Partner. Any transfer by
the Limited Partner of any or all of its interest in the Partnership shall
be null and void.
12.2 General Partner as Limited Partner. The General Partner and
any Affiliate of the General Partner may acquire an interest as a limited
partner from the Partnership or by assignment from a limited partner in the
same manner as someone not the General Partner or an Affiliate of the
General Partner. If the General Partner (or an Affiliate) should acquire an
interest as a Limited Partner, the General Partner (or an Affiliate) shall,
with respect to such interest, enjoy all the rights and be subject to all
the obligations and duties of a Limited Partner to the extent of such
interest.
12.3 Transfer by General Partner. The General Partner may not
transfer any or all of its interest in the Partnership without the prior
written consent of the Limited Partner. If a transfer is approved, the
General Partner may not transfer any or all of its interest in the
Partnership unless the transferee agrees in writing to assume all of the
obligations of the General Partner upon such transfer, and, thereafter, the
General Partner shall be relieved of all further obligations and
responsibilities. If a transfer of the General Partner's interest is
approved, the transfer will not cause the dissolution of the Partnership,
which may continue with the transferee as the General Partner the same as
if the transferee had been the initial General Partner.
The restrictions on the transfer of the General Partner's interest
in the partnership do not apply to a transfer by the General Partner to an
Affiliate of the General Partner.
ARTICLE XIII
DISSOLUTION AND TERMINATION
13.1 Events of Dissolution. The Partnership shall be dissolved and
its business wound up on the earliest occurrence of any one of the
following events:
(a) The expiration of the term of the Partnership as set
forth in Article III.
(b) The written consent of all Partners to the
dissolution.
(c) The dissolution, withdrawal, or bankruptcy of the
General Partner, unless the Partnership is reconstituted in the manner
prescribed in paragraph 13.2 of this Agreement. The dissolution,
withdrawal, or bankruptcy of the General Partner will not result in the
dissolution of the Partnership so long as the successor to the General
Partner's interest in the Partnership, in accordance with paragraph 13.2,
assumes all of the General Partner's obligations under this Agreement.
13.2 Election of New General Partner. If the General Partner
ceases to be the General Partner, including at the time of the withdrawal,
dissolution, or bankruptcy of the General Partner, the business of the
Partnership shall be continued on the terms and subject to the conditions
of this Agreement if, within ninety (90) days after such event, the Limited
Partner elects that the business of the Partnership should be continued
and, in such election, designate one or more persons to be substituted as
general partner (each a "New General Partner"). Such person shall not
become a New General Partner unless (a) such person is elected by written
consent of all Partners and (b) such person has consented in writing to be
bound in the manner that the General Partner is bound by the terms of this
Agreement and the Certificate. If such proposed New General Partner is not
elected, the Limited Partner may as soon as practicable thereafter nominate
another New General Partner until a New General Partner is elected or the
Partnership has been dissolved. New General Partner(s) elected by this
procedure will succeed to all of the powers, privileges, and obligations of
the then-existing General Partner. The interest in the Partnership of the
General Partner who is succeeded by New General Partner(s) will become a
limited partner's interest in the Partnership. If the General Partner
ceases to be the General Partner, including in the event of the
dissolution, withdrawal, or bankruptcy of the General Partner and the
failure of the Limited Partner to elect to continue the business of the
Partnership, the Partnership shall be terminated forthwith.
13.3 No Release from Liabilities. It is understood and agreed that
no dissolution of the Partnership releases or relieves any of the parties
to this Agreement of their contractual obligations under this Agreement.
13.4 Distributions in Liquidation. If the business of the
Partnership is not continued, the General Partner or any New General
Partner shall, if possible, act as liquidator. If the General Partner has
itself dissolved, withdrawn from the Partnership, or declared or suffered a
bankruptcy, and if the Partnership is not reconstituted with a New General
Partner as provided in this Agreement, the Limited Partner or its successor
as a limited partner shall act as liquidator. The liquidator shall
liquidate the assets of the Partnership, make appropriate adjustments made
to the capital accounts of the Partners, and distribute the proceeds in the
following order or priorities, so far as the proceeds will go:
(a) To the payment of debts of the Partnership (other
than loans made from the Partners to the Partnership), including the
expenses of liquidation.
(b) To the repayment of any loans that have been made by
the Partners to the Partnership, but if the amount available for such
repayment is insufficient, then pro rata up to the amounts available.
(c) To any Partner or former Partner in satisfaction of
the Partnership's liability for any distributions owed to such Partner
pursuant to paragraph 10.4.
(d) To all Partners pro rata in accordance with their
respective capital account balances, as adjusted, up to the amounts of
those capital accounts.
(e) To all Partners pro rata according to their
respective Percentage Interests in the partnership.
13.5 Distributions in Kind. In the event any or all of the assets
of the Partnership cannot be liquidated, those assets are to be distributed
in kind according to the priorities set forth in paragraph 13.4. Assets of
the Partnership distributed to the Partners shall be held and owned by the
Partners as tenants in common. In the event of the distribution of
Partnership properties in kind, the fair market value of such assets shall
be determined by agreement of the Partners. The amount of gain or loss
which would have been realized by the Partnership for federal income tax
purposes if the assets had been sold at such fair market value rather than
distributed in kind shall be treated as gain or loss from a disposition of
the assets of the Partnership, and allocated among the Partners in
accordance with Article X, such allocations then being reflected in the
Partners' respective capital accounts.
ARTICLE XIV
ACCOUNTING
14.1 Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
14.2 Books and Records. The General Partner shall keep, or cause
to be kept, all records which the Act requires the Partnership to keep, at
the principal place of business of the Partnership as provided in Article
V, including full and accurate records of all transactions of the
Partnership in accordance with principles and practices generally accepted
for the cash or accrual method of accounting.
14.3 Inspection of Records. Any Partner may, for any proper
purpose during regular business hours, inspect and copy any of the
Partnership books and records at the principal place of business of the
Partnership as provided in Article V, or make other reasonable inquiries as
to Partnership affairs. Cost of reproducing or copying Partnership books
and records shall be at the expense of the Partnership.
14.4 Tax Returns. The General Partner shall prepare, or cause to
be prepared, state and federal income tax returns for the Partnership and,
in connection with those tax returns, make any available or necessary
elections. Copies of all income tax returns of the Partnership proposed to
be filed for any year shall be furnished to each Partner prior to filing
the returns.
ARTICLE XV
REPORTS AND STATEMENTS
The General Partner will deliver to the Limited Partner, at the
Partnership's expense, financial statements setting forth, as of the end
and for that fiscal year, the following:
(a) A profit and loss statement and balance sheet of the
Partnership.
(b) The balance in the capital account of each Partner.
(c) Any other information that, in the judgment of the
General Partner, is reasonably necessary for the Limited Partner to be
advised of the results of operations of the Partnership.
ARTICLE XVI
BANK ACCOUNTS
The General Partner shall open and maintain a special bank account
or accounts in which all funds of the Partnership shall be deposited.
Withdrawals from this account or accounts may be made on the signature or
signatures of those persons designated by the General Partner.
The General Partner may not commingle the assets of the
Partnership with the assets of any other entity or person. However, the
revenues and other receipts of the Partnership may be deposited in a
central account in the name of the General Partner or an Affiliate, so long
as separate entries are made on the books and records of the Partnership
and on the books and records of the Affiliate reflecting deposits in the
bank account of the Affiliate with respect to amounts received from the
Partnership and withdrawals from the bank accounts made for the purpose of
disbursing funds to the Partnership or for the purpose of paying
liabilities of the Partnership.
ARTICLE XVII
NOTICES
Whenever any notice is required or permitted to be given under
this Agreement, the notice must be in writing and signed by or behalf of
the person giving the notice. The notice will be deemed to have been given
when received or when deposited in the United States mail, postage prepaid,
certified mail, return receipt requested, properly addressed to the persons
who must receive notice at the address listed in this Agreement or as
changed by written notice given according to this provision of this
Agreement.
ARTICLE XVIII
POWER OF ATTORNEY
The Limited Partner irrevocably appoints the General Partner, its
successors and assigns, as its respective true and lawful attorney-in-fact,
with full power and authority, on its behalf and in its respective name, to
execute, acknowledge, swear to, deliver and, if appropriate, file in such
offices and places as may be required by law (i) any amendment to this
Agreement that may be required by a change in the name of the Partnership,
change in registered agent, or similar matter, and (ii) any amendment to
this Agreement made in compliance with Article IX. The power of attomey
granted by the Limited Partner to the General Partner is a special power
coupled with an interest and is irrevocable, and may be exercised by any
party who, at the time of exercise, is a General Partner of the
Partnership. The power of attorney shall survive any transfer or
abandonment of the Limited Partner's Partnership interest, or the Limited
Partner's withdrawal from the Partnership.
ARTICLE XIX
AMENDMENT
This Agreement may be amended or modified only by written
instrument executed by both the General Partner and the Limited Partner.
ARTICLE XX
RELIANCE ON AUTHORITY
Any person dealing with the General Partner as the representative
of the Partnership may rely on the authority of the General Partner.
Persons dealing with the General Partner have no obligation to ascertain
the General Partner's compliance with the terms of this Agreement. Every
contract, agreement, deed, mortgage, note, or other document or instrument
executed by the General Partner with respect to any property of the
Partnership shall be conclusive evidence in favor of any and every person
relying on the signature of the General Partner that (i) at the time of the
execution or delivery of the document, this Agreement was in full force and
effect, (ii) the instrument or document was duly executed in accordance
with the terms and provisions of this Agreement and is binding on the
Partnership and all Partners, and (iii) the General Partner was duly
authorized and empowered to execute and deliver any and every such
instrument or document on behalf of the Partnership.
ARTICLE XXI
MISCELLANEOUS
21.1 Applicable Laws. This Agreement, and its application or
interpretation, shall be governed exclusively by its terms and construed in
accordance with the substantive federal laws of the United States and by
the laws of the State of Texas, including the Texas conflicts of laws
rules.
21.2 Cumulative Remedies. Each party to this Agreement is entitled
to all remedies provided by this Agreement or in law or equity. All
remedies in this Agreement and in law or equity are cumulative, and the use
of one right or remedy by any party does not preclude or waive the right to
use any or all other remedies.
21.3 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all parties had all signed the same
document. All counterparts shall be construed together and shall constitute
one agreement.
21.4 Successors and Assign. The terms, provisions, and agreements
contained in this Agreement are binding on and inure to the benefit of the
parties and, to the extent permitted by this Agreement, their respective
successors and assigns.
21.5 Entire Agreement. This Agreement shall constitute the entire
contract between the parties. There are no other or further agreements
outstanding not specifically mentioned in this Agreement. However, the
parties may amend and supplement this Agreement, in writing, from time to
time, in a manner and to the extent provided by the terms of this
Agreement, including but not limited to the terms set out in Article XIX.
21.6 Personal Property. The interests owned by the Partners in
this Partnership are personal property.
21.7 Invalidity of Provisions. In case any one or more of the
provisions contained in this Agreement are subsequently determined to be
invalid, illegal, or unenforceable in any respect, that invalidity or
unenforceability does not destroy the basis of the bargain among the
Partners as expressed in this Agreement. The validity, legality, and
enforceability of the remaining provisions contained in this Agreement
shall not be affected or impaired in any way by the determination that some
portion or portions are invalid, illegal or unenforceable.
21.8 Signature Pages. Each Partner authorizes the General Partner
to attach an executed signature page to this Agreement.
21.9 Attorneys' Fees. If any litigation is initiated by any
Partner against another Partner relating to this Agreement or its subject
matter, the Partner prevailing in such litigation shall be entitled to
recover, in addition to all damages allowed by law and other relief, all
court costs and reasonable attorney's fees incurred in connection with the
litigation.
