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EXHIBIT 99.5
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AGREEMENT OF
LIMITED PARTNERSHIP
FOR THE
JAYTEE PROPERTIES LIMITED PARTNERSHIP
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85
JAYTEE PROPERTIES LIMITED PARTNERSHIP
TABLE OF CONTENTS
ARTICLE PAGE
1. ESTABLISHMENT OF PARTNERSHIP................................................................................1
1.1 Formation and Controlling Law...................................................................1
1.2 Name............................................................................................2
1.3 Purposes........................................................................................2
1.4 Powers..........................................................................................2
1.5 Principal Place of Business.....................................................................2
1.6 Term............................................................................................2
1.7 Registered Agent................................................................................2
1.8 Nature of Partners' Interests...................................................................2
2. CAPITAL CONTRIBUTIONS; WITHDRAWALS; AND CAPITAL ACCOUNTS....................................................2
2.1 Continuation of Capital Accounts................................................................2
2.2 Units of Ownership Interests....................................................................3
2.3 Required Subsequent Capital Contributions.......................................................3
2.4 Additional Capital Contributions................................................................3
2.5 Liability of Limited Partners...................................................................3
2.6 Capital Accounts................................................................................3
2.7 Additions to Capital Accounts...................................................................4
2.8 Subtractions to Capital Accounts................................................................4
2.9 Withdrawal of Capital...........................................................................4
2.10 Interest on Capital Accounts and Contributions..................................................4
2.11 Restriction on Registration of Interest.........................................................4
3. PROFIT AND LOSS.............................................................................................5
3.1 Definitions of Net Profit and Net Loss..........................................................5
3.2 Allocation of Profits and Losses................................................................5
3.3 Allocations in Event of Transfer, Admission of New Partner, Etc.................................6
3.4 Definitions: Adjustment Dates; Operations Period..............................................6
3.5 Retention of Distributable Income as Capital Reserves...........................................7
4. DISTRIBUTIONS...............................................................................................7
4.1 Distribution Other Than Upon Winding-Up.........................................................7
4.2 Property Distributions..........................................................................7
4.3 Distributions Upon Winding-Up...................................................................7
5. ACCOUNTING..................................................................................................8
5.1 Books and Records...............................................................................8
5.2 Fiscal Year.....................................................................................8
5.3 Reports.........................................................................................8
5.4 Federal Income Tax Status and Elections.........................................................8
6. MANAGEMENT..................................................................................................8
6.1 Management by General Partners..................................................................8
6.2 Appointment of Co-Managing General Partner......................................................9
6.3 Voting the Partnership's Republic Bancorp, Inc. Shares........................................10
6.4 Liabilities of the General Partners............................................................11
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6.5 Other Interests................................................................................11
6.6 Standard of Care of General Partners; Indemnification..........................................11
6.7 Limited Partners...............................................................................11
7. WITHDRAWAL.................................................................................................11
7.1 Restrictions on Withdrawal, Substitution and Transfer..........................................11
7.2 No Withdrawal by General Partners..............................................................12
7.3 Withdrawals by Limited Partners................................................................12
8. TRANSFERS; SUBSTITUTION; ADDITIONAL PARTNERS...............................................................12
8.1 Assignment of Limited Partner's Interest.......................................................12
8.2 Voluntary Transfers of Limited Partner's Interests.............................................12
8.3 Involuntary Transfers of Limited Partner Interests.............................................14
8.4 Determination of Value.........................................................................15
8.5 Payment of Purchase Price......................................................................16
8.6 Extension of Time for Payment of Purchase Price................................................16
8.7 Death or Incapacity of Limited Partner.........................................................16
8.8 Substitute Limited Partners....................................................................17
8.9 Transfers of General Partnership Interests.....................................................17
8.10 Incapacity of a General Partner................................................................18
8.11 Successor General Partner......................................................................18
8.12 Fiduciaries As Partners........................................................................18
8.12(a) FIDUCIARY CAPACITY.................................................................18
8.12(b) REVOCABLE TRUSTS...................................................................19
8.13 Additional Partners............................................................................19
9. FEDERAL INCOME TAX MATTERS.................................................................................19
9.1 Distributive Shares............................................................................19
9.2 Elections......................................................................................19
9.3 Tax Matters Partner............................................................................19
10. DISSOLUTION AND WINDING-UP................................................................................20
10.1 Events Occasioning Dissolution.................................................................20
10.2 Winding-Up.....................................................................................20
10.3 Events Not Occasioning Dissolution.............................................................20
11. MISCELLANEOUS.............................................................................................20
11.1 Non-Family Member Partner......................................................................20
11.2 Amendments.....................................................................................20
11.3 Notices........................................................................................20
11.4 No Delivery of Certificates....................................................................21
11.5 Governing Law..................................................................................21
11.6 Arbitration....................................................................................21
11.7 Power of Attorney..............................................................................22
11.8 Partition......................................................................................22
11.9 Waiver of Right to Court Decree of Dissolution.................................................22
11.10 Agreement Binding..............................................................................23
11.11 Invalid Provisions.............................................................................23
11.12 Waiver.........................................................................................23
11.13 Third Party Beneficiaries......................................................................23
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AGREEMENT OF
LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP is made and entered into by
those persons identified on Schedule A as General Partners and Limited Partners.
The General Partners and the Limited Partners hereinafter identified are
referred to as the "Partners."
The Partners desire to form a Limited Partnership (the "Partnership")
for the purposes set forth herein, and in consideration of their mutual
agreements, they agree as follows.
1. ESTABLISHMENT OF PARTNERSHIP
1.1 FORMATION AND CONTROLLING LAW.
1.1(a) This Limited Partnership is a continuation and conversion
of the general partnership which is being conducted by Xxxxxxx X. Xxxxxx and
Xxxx X. Xxxxxx under the terms of a written partnership agreement dated February
1, 1993, and known as Jaytee Properties. By executing this Agreement Xxxxxxx X.
Xxxxxx and Xxxx X. Xxxxxx amend and restate their Partnership Agreement, and
agree that this instrument governs their relationship in all matters conducted
by the Partnership, and constitutes the conversion of the Jaytee Properties
General Partnership into a Kentucky Limited Partnership.
1.1(b) Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxx, as general partners
of Jaytee Properties personally guaranteed certain debt of their general
partnership and they agree, by the execution of this instrument, to retain and
remain personally liable to and for such debt as nothing herein is intended to
change or alter their legal obligations heretofore assumed and guaranteed by
them.
1.1(c) In addition to the assets from the Jaytee Properties
Partnership, the parties executing this Agreement are contributing additional
assets in exchange for General and Limited Partnership Interests in this
Partnership as depicted on Schedule A.
1.1(d) Accordingly, the Partners do hereby convert their general
partnership into a Limited Partnership pursuant to the provisions of the
Kentucky Uniform Limited Partnership Act. The rights and duties of the Partners
are as provided in the Kentucky Uniform Limited Partnership Act except as
modified by this Agreement. The law of the State of Kentucky is to apply to all
questions and matters pertaining to this Agreement. The Partners will take all
actions necessary or appropriate to allow the Partnership to carry on its
business in accordance with the terms of this Agreement, and Kentucky law.
Further, for Federal tax law purposes, references are made to the Internal
Revenue Code of 1986, as amended, and such references are hereinafter to as the
"Code."
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1.2 NAME. The name of the Partnership is JAYTEE PROPERTIES LIMITED
PARTNERSHIP or such other name selected by the General Partners as may be
permitted by law. The Partnership will file such certificates of fictitious name
as may be required by law.
1.3 PURPOSES. The Partnership is formed for the following purposes: (a) to
manage the family's assets, (b) to create a more varied investment portfolio for
the family's assets, and (c) to create a convenient means to allow the Partners
to make gifts of Partnership interests to various members of their family.
1.4 POWERS. The Partnership will have the power to do all things necessary
or desirable in the conduct of its business to the fullest possible extent
permitted by law.
1.5 PRINCIPAL PLACE OF BUSINESS. The principal place of business for the
Partnership is Louisville, Kentucky and/or such other place or places as the
Partners may from time to time determine. The Managing or Co-Managing General
Partner will notify the Partners of the establishment of any office of the
Partnership in addition to, or replacement of, the principal office name herein
or any replacement thereof. The General Partners will maintain, at the
Partnership's principal office in Kentucky, those items referred to and required
by the Kentucky Uniform Limited Partnership Act ss. 362.409.
1.6 TERM. The term of the Partnership will commence on the filing of a
Certificate of Limited Partnership in the office of the Secretary of State of
Kentucky and will continue until dissolved in accordance with the terms of this
Agreement regarding Dissolution and Winding-Up.
1.7 REGISTERED AGENT. The name and address of the Partnership's registered
agent, and the address of Partnership's registered office in the State of
Kentucky, is as follows:
XXXXXXX X. XXXXXX
000 XXXXXXXXX XXXXX
Xxxxxxxxxx, Xxxxxxxx 00000
1.8 NATURE OF PARTNERS' INTERESTS. The interests of the Partners in the
Partnership will be personal property. All property owned by the Partnership,
whether real or personal, tangible or intangible, or mixed, will be deemed to be
owned by the Partnership as an entity, and no Partner, individually or
otherwise, will have any ownership interest in such property.
2. CAPITAL CONTRIBUTIONS; WITHDRAWALS; AND CAPITAL ACCOUNTS
2.1 CONTINUATION OF CAPITAL ACCOUNTS. The General Partners' capital
accounts will continue as established upon the Partnership's books and records;
however, upon the conversion of this Partnership from a General Partnership into
a Limited Partnership each Partner's ownership interests will be converted into
General Partner's Interests and Limited Partner's Interests as the Partners
agree, and as reflected on Schedule A.
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2.2 UNITS OF OWNERSHIP INTERESTS. A Partner's ownership interest may be
evidenced by Units of Ownership Interests as established and maintained on the
Partnership's books and records. Further, the transfer of a Partner's ownership
interest may be evidenced by the transfer of such Partner's Units of Ownership
Interests.
2.3 REQUIRED SUBSEQUENT CAPITAL CONTRIBUTIONS. Any General Partner whose
capital account has a deficit balance at the time of liquidation of such General
Partner's interest agrees to contribute to the capital of the Partnership an
amount of cash necessary to bring such General Partner's Capital Account up to
zero. Such amount will be paid to the Partnership by the later of the end of the
taxable year in question or 90 days after the date of the Partnership's
liquidation, and such amount will be available for payment to the Partnership's
creditors or for distribution to those Partners having positive Capital Account
balances.
2.4 ADDITIONAL CAPITAL CONTRIBUTIONS.
2.4(a) No Partner will be required to make any capital
contribution in addition to that hereinabove required. The General Partners will
be personally liable for all debts of the Partnership, other than nonrecourse
debt.
2.4(b) If additional contributions are necessary or appropriate,
then the Partners may make additional contributions in such amounts as necessary
in order for the Partners to maintain their proportionate percentage interest in
the Partnership. If not all of the Partners elect to make an additional
contribution, then the other Partners may make capital contributions for the
portion not contributed by those Partners who have elected not to make an
additional capital contribution.
2.5 LIABILITY OF LIMITED PARTNERS. Limited Partners will not have any
personal liability for Partnership debts, obligations or losses of the
Partnership in excess of the Limited Partner's obligation to make the
contribution to the Partnership as set forth in Schedule A of this Agreement.
2.6 CAPITAL ACCOUNTS.
2.6(a) A separate capital account ("Capital Account") will be
maintained for each General Partner and for each Limited Partner, and all
Capital Accounts will be maintained in accordance with the capital accounting
rules of Code Section 704(b), and the provisions of Treasury Department
Regulation Section 1.704-1(b)(2)(iv), and this Agreement will be so construed.
2.6(b) Each Partner's opening Capital Account balance will be
the amount of such Partner's initial capital contribution as set forth in
Schedule A and then will be increased and decreased in accordance with the
following provisions.
2.6(c) If a Partner transfers all or any part of such Partner's
interest in the Partnership, as provided and limited in this Agreement, then the
Capital Account of the transferor will become the Capital Account of the
transferee to the extent of the Partnership interest transferred.
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2.7 ADDITIONS TO CAPITAL ACCOUNTS. Subsequent to the opening Capital
Account, a Partner's Capital Account will be increased by the following items:
(a) Such Partner's cash contributions to the Partnership's capital; (b) The fair
market value, as agreed upon, of any property contributed to the capital of the
Partnership by a Partner (net of liability secured by such contributed property
that the Partnership is considered to assume or take subject to under Code
Section 752); (c) Such Partner's share of the Partnership realized and
unrealized profits and any gains (whether or not any such items are exempt from
tax); (d) Such Partner's share of income described in Code Section 705(a)(1)(B);
and (e) Such other amounts that are required for the Capital Account to be
determined and maintained in accordance with Treasury Regulations.
2.8 SUBTRACTIONS TO CAPITAL ACCOUNTS. Subsequent to the opening Capital
Account, a Partner's Capital Account will be reduced by the following items:
2.8(a) Such Partner's share of the Partnership's realized and
unrealized losses (including expenditures described in Code Section 705(a)(2)(B)
or treated as an expenditure by reason of Treasury Regulation Section
1.704-1(b)(2));
2.8(b) The amount of cash and the fair market value of property
distributed (net of any liabilities assumed by such Partner or to which the
distributed property is subject); and
2.8(c) Such other amounts that are required for the Capital
Account to be determined and maintained in accordance with Treasury Regulations.
2.9 WITHDRAWAL OF CAPITAL. No Partner will be entitled to withdraw any
part of their capital contribution to the Partnership, or receive any
distributions from the Partnership, except as provided in this Agreement. No
Partner will be entitled to demand or receive any property from the Partnership
other than cash, except as otherwise in this Agreement.
2.10 INTEREST ON CAPITAL ACCOUNTS AND CONTRIBUTIONS. No Partner will be
entitled to interest on any capital contribution or on such Partner's Capital
Account.
2.11 RESTRICTION ON REGISTRATION OF INTEREST. Registration will be
restricted to the extent required so that the Partnership is not deemed to be a
"publicly traded partnership" under the Code. Partnership interests will only be
registered in the name of the beneficial owner. The Partnership will not be
bound to recognize any equitable or other claim to such interest on the part of
any other person (such as a broker, dealer, bank, trust company or clearing
corporation) which is acting as a nominee, agent or in some other representative
capacity, whether or not the Partnership will have knowledge thereof, except for
the following: (a) Interests held by a guardian, custodian or conservator for
the benefit of a minor or incompetent; (b) Interests held by a trust for the
benefit of a Partner or Partner's spouse, parent, parent - in - law, issue,
brother, sister, brother - in - law, sister - in - law, niece, nephew, cousin,
grandchild or grandchild - in - law; and (c) Interests held by a fiduciary for
other like beneficiaries. An interest in the Partnership will only be traded in
accordance with the Department of the Treasury's rules and regulations then in
effect which set forth the parameters within which a partnership may act and not
be deemed to be a "publicly traded
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partnership" under the Code. In no event may an interest in the Partnership be
listed on an established securities exchange.
3. PROFIT AND LOSS
3.1 DEFINITIONS OF NET PROFIT AND NET LOSS. Profits and losses for any
Operations Period, as hereinafter defined, will be computed in the same manner
as the Partnership reports its income for Federal income tax purposes, except
that (i) income of the Partnership that is exempt from tax, and expenses that
are not deductible for tax purposes under the Code will be included in the
computation, and (ii) unrealized gain or loss will be taken into account as
provided herein. The principles of Treasury Regulation Section 1.704-1(b)(4)(i)
will be applied, when necessary, to prevent duplication or omission of Capital
Account adjustments, including, without limitation, those arising from deemed
sales as provided in this Agreement.
3.2 ALLOCATION OF PROFITS AND LOSSES.
3.2(a) Except as hereinafter provided, the Partnership's net
profits and losses for each Operations Period will be allocated to the Partners
on a pro rata basis based upon each Partner's ownership interests, as reflected
by such Partner's Capital Account, to the total of all Partners' ownership
interests as reflected by all Capital Accounts.
3.2(b) For income tax purposes only, depreciation (cost
recovery) deductions, depletion deductions and gain or loss with respect to
assets contributed by a Partner will be allocated among the Partners so as to
take into account the difference between the adjusted basis of the asset at the
time of its contribution and the agreed value of the asset. An asset will be
considered contributed by a Partner if it has a basis in the hands of the
Partnership which is determined, in whole or in part, by reference to the basis
of an asset actually contributed by a Partner (or previously deemed contributed
by a Partner pursuant hereto).
3.2(c) Net losses for any Operations Period which would
otherwise be allocated with respect to a Partnership interest owned by a Limited
Partner and which would cause such Limited Partner to have an Adjusted Capital
Account Deficit, will instead be allocated pro rata among the General Partners.
3.2(d) If any Limited Partner receives an adjustment,
allocation, or distribution, described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5), or (6), items of Partnership gross income will be
specifically allocated to such Limited Partner in an amount and manner
sufficient to eliminate any Adjusted Capital Account Deficit created by such
adjustments, allocation, or distributions as quickly as possible. These
provisions are intended to constitute a "qualified income offset" within the
meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and will be
interpreted and implemented as provided therein.
3.2(e) After satisfaction of any allocations hereinabove
required, if there have been any net losses allocated to the General Partners,
as hereinabove provided, then the Partnership's net
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profit for an Operations Period will be allocated pro rata among the General
Partners until the General Partners have received allocations of net profit
equal in the aggregate to any net losses previously allocated to them as
hereinabove provided.
3.2(f) An "Adjusted Capital Account Deficit" exists with respect
to a Limited Partner if the Limited Partner's Capital Account, determined for
this purpose by reducing the Capital Account by the items described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6) and by increasing the
Capital Account by the amount described in Treasury Regulation Section
1.704-1(b)(2)(ii)(c) that the Partner is obligated to restore, is a negative
amount.
3.2(g) If there is a net decrease in the Partnership's Minimum
Gain, as provided by Treasury Regulation Section 1.704-2(b)(2), or Partner
Nonrecourse Debt Minimum Gain, as provided by Treasury Regulation Section
1.704-2(i)(3), during an Operations Period, each Partner will be allocated,
before any other allocations, items of income and gain for such Operations
Period, and subsequent Periods if necessary, an amount equal to such Partner's
share of the net decrease in the Partnership's Minimum Gain or Partner
Nonrecourse Debt Minimum Gain, as applicable, for such Operations Period;
provided that no such allocation will be required if any of the exceptions set
forth in Treasury Regulation Section 1.704-2(f) apply. It is intended that this
provision constitute a "MINIMUM GAIN CHARGEBACK" within the meaning of Treasury
Regulation Section 1.704-2.
3.3 ALLOCATIONS IN EVENT OF TRANSFER, ADMISSION OF NEW PARTNER, ETC. In
the event of the transfer of all or any part of a Partner's Partnership
interest, as provided and limited by this Agreement, at any time other than the
end of a Fiscal Year, the admission of a new Partner or disproportionate capital
contributions, the transferring Partner's, new Partner's or continuing Partners'
shares of the Partnership's income, gain, loss, deductions and credits allocable
to such Partnership interest will be allocated between the transferor Partner
and the transferee Partner(s) in the same ratio as the number of days in such
Fiscal Year before and after the date of such event; provided that the General
Partners may treat the periods before and after such event as separate Fiscal
Years.
3.4 DEFINITIONS: ADJUSTMENT DATES; OPERATIONS PERIOD.
3.4(a) The "Adjustment Dates" of the Partnership will be the
date of dissolution of the Partnership and each date on which there is a
distribution in kind of property of the Partnership, a contribution of money or
other property (other than a DE MINIMIS amount) to the Partnership by a new or
existing Partner as consideration of an interest in the Partnership, or a
distribution of money (other than a DE MINIMIS amount) by the Partnership to a
retiring or continuing Partner as consideration for an interest in the
Partnership.
3.4(b) An "Operations Period" of the Partnership will be the
period beginning on the date hereof, the first day of a fiscal year or an
Adjustment Date (as the case may be) and ending on the earlier of the next
succeeding Adjustment Date or the last day of a fiscal year.
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3.5 RETENTION OF DISTRIBUTABLE INCOME AS CAPITAL RESERVES. The General
Partners may elect to retain from the distributions of available cash any
amounts which, in the General Partners' judgment, are needed to provide reserves
and working capital for anticipated investments and operating expenses.
4. DISTRIBUTIONS
4.1 DISTRIBUTION OTHER THAN UPON WINDING-UP. The Managing or Co-Managing
General Partner, or the General Partner(s), if there are no Managing General
Partners, will determine in their sole discretion, whether distributions will be
made to any particular General or Limited Partner (including the Partner(s)
authorizing the distribution) or whether the Partnership's income will be
reinvested; provided, however, that such distributions will be made to each
Partner pro rata based upon the proportion of each Partner's ownership interests
to the total of all Partners' interests, determined as of the date of the
distribution. Distributions may only be cash, and the amount of cash
distributions will only be such amount which exceeds the reasonable working
reserves needed for the Partnership's operations.
4.2 PROPERTY DISTRIBUTIONS. If property, other than cash, is distributed
to a Partner, the fair market value of such property will be used for purposes
of determining the amount of such distribution. The difference, if any, of such
fair market value over (or under) the value at which such property is carried on
the books of the Partnership will be credited or charged to the Capital Accounts
of the Partners in accordance with the ratio in which the partners share in the
gain and loss of the Partnership. The fair market value of the property will be
determined by the Managing or Co- Managing General Partners or the General
Partners if there are no Managing Partners.
4.3 DISTRIBUTIONS UPON WINDING-UP. Upon the dissolution and winding up of
the Partnership, the assets of the Partnership will be distributed in the
following order of priority: (a) To the payment of the debts and liabilities of
the Partnership and the expenses of winding-up, including the establishment of
any reserves to pay any anticipated and contingent liabilities or obligations
which the Managing or Co-Managing or General Partners, as the case may be, in
their sole discretion, deem appropriate. Any such reserves will be charged
against the Partners' Capital Accounts on a pro rata based upon the proportion
of each Partner's ownership interests to the total of all Partners' interests,
which reserve, prior to payment of such liabilities and obligations, will be
placed in the hands of an escrow agent for such period and upon such terms as
the General Partners will determine; (b) To repay any loans to the Partnership
by a Partner, including any deferred payment obligation to a Partner or a
Partner's personal representative as the result of a redemption by the
Partnership of such Partner's interest; (c) To the Partners in an amount equal
to any credit balance in their Capital Accounts (as a negative Capital Account
balance will be considered a loan from the Partnership to the Partner for the
purpose of determining distributions upon dissolution), so that the Capital
Account of each Partner will be brought back to zero; and (d) The balance, if
any, will be distributed to the Partners in an amount equal to each Partner's
percentage interest in the Partnership.
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5. ACCOUNTING
5.1 BOOKS AND RECORDS. The General Partners will maintain the general
accounts of the Partnership. The books of the Partnership will be kept on a
basis consistent with the provisions of this Agreement and determined in the
same manner as the Partnership computes its income (loss) for Federal income tax
purposes; provided, however, that the Partnership will not use the installment
method for book purposes. Such books and records, and the items referred to in
Kentucky Uniform Limited Partnership Act Section 362.409(1) will be open to the
inspection and examination of all Partners, in person or by their duly
authorized representatives, at reasonable times. The books of the Partnership
will be maintained using a method of accounting as determined by the General
Partners.
5.2 FISCAL YEAR. The fiscal year of the Partnership will be the calendar
year.
5.3 REPORTS. As soon as practicable after the close of each fiscal year
the Partnership will furnish each Partner with a copy of the Partnership's
financial statements for such year and with a statement of such Partner's
Capital Account, as reflected on the books of the Partnership. Each Partner will
also be supplied with all information with respect to the Partnership required
in connection with the preparation of such Partner's tax returns.
5.4 FEDERAL INCOME TAX STATUS AND ELECTIONS.
5.4(a) This Limited Partnership will constitute a Partnership
for Federal income tax purposes, and the General Partners will report all items
of income, gain, loss, deduction and credit as a Partnership and in accordance
with the Partnership taxation rules pursuant to the Internal Revenue Code and
Treasury Regulations.
5.4(b) All elections required or permitted to be made by the
Partnership under the Code will be made by the General Partners in such manner
as will, in their opinion, be most advantageous to a majority in interest of the
Limited Partners.
6. MANAGEMENT
6.1 MANAGEMENT BY GENERAL PARTNERS. The business affairs of the
Partnership will be managed by the General Partners. All decisions of the
General Partners, including but not limited to Partnership distributions, will
be made in accordance with the decision of the General Partner or General
Partners holding a majority of the General Partner interests. Deadlock between
the General Partners on any issue will be deemed a disputed issue for purposes
of this Agreement and will be resolved through arbitration as provided in this
Agreement. The General Partners will have all necessary powers to carry out the
purposes of the Partnership, and in addition to the authority given to the
General Partners by this Agreement and by law, the General Partners will have
the specific authority to take the following actions.
6.1(a) The General Partners will have the authority, at any
time, and from time-to-time, to sell, exchange, lease and/or transfer legal and
equitable title to the Partnership property upon such
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terms and conditions and for such considerations as the General Partners
consider reasonable. The execution of any document or conveyance or lease by a
General Partner will be sufficient to transfer complete legal and equitable
title to the interest conveyed without the xxxxxx, ratification, or consent of
the Partners. No Purchaser, tenant, transferee or obligor will have any
obligation whatever to see to the application of payments made to the General
Partners.
6.1(b) The General Partners will have the authority to retain,
without liability, any and all property in the form it is received, without
regard to its productivity or the proportion that any one asset or class of
assets may bear to the whole. The General Partners will not have liability or
responsibility for loss of income from or depreciation in the value of the
property that was retained in the form in which the General Partners received
it.
6.1(c) The General Partners will have the authority to employ
such consultants and professional help as the General Partners consider
necessary to assist in the prudent management, acquisition, leasing and transfer
of the Partnership property, and to obtain such policies of insurance as the
General Partners consider reasonably necessary to protect the Partnership
property from loss or liability.
6.1(d) The General Partners will be permitted to register or
take title to Partnership assets in the name of the Partnership or as trustee,
with or without disclosing the identity of the principal, or to permit the
registration of securities in "street name" under a custodial arrangement with
an established securities brokerage firm, trust department or other custodian.
6.1(e) Insofar as the law will permit, a General Partner who
succeeds another will be responsible only for the property and records delivered
by or otherwise acquired from the preceding General Partner, and may accept as
correct the accounting of the preceding General Partner without duty to audit
the accounting or to inquire further into the administration of the predecessor,
and without liability for a predecessor's errors and omissions.
6.1(f) No one serving as a General Partner will be required to
furnish a fiduciary bond or other security as a prerequisite to such Partner's
service.
6.2 APPOINTMENT OF CO-MANAGING GENERAL PARTNER. The General Partners, if
there is more than one General Partner, may appoint one or more of the General
Partners to serve as the Managing General Partner or Co-Managing General
Partner. As between the General Partners, either of the Co-Managing General
Partners will have the right to make all decisions, execute all documents, and
take all action on behalf of the Partnership.
6.2(a) The Co-Managing General Partners will be Xxxxxxx Xxxxxx
and Xxxxxx X. Xxxxxx. If either Xxxxxxx Xxxxxx or Xxxxxx X. Xxxxxx ceases to be
a General Partner, resigns as a Co- Managing General Partner, or becomes ill or
incapacitated, then the remaining Co-Managing General Partner will become the
sole Managing General Partner and will be authorized and empowered to act for
the Partnership and, in his name and place, take all actions and do all things
as deemed necessary and appropriate.
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6.2(b) Any person dealing with the Partnership may rely upon
the signed and certified affidavit of the Managing or Co-Managing General
Partner which states:
"On my oath, and under the penalties of perjury, I
swear that I am the duly elected and authorized Managing
(Co-Managing) General Partner of the
____________________________________(name of limited
partnership); I certify that I have not been removed as the
Managing (Co-Managing) General Partner and have the
authority to act for and bind _____________________________
(name of limited partnership) in the transaction of the
business which this affidavit is given as affirmation of my
authority."
6.2(c) The Co-Managing General Partners will be entitled to a
reasonable annual compensation for services rendered to the Partnership, this
compensation to be measured by the time required in the administration of the
Partnership, the value of property under administration, and the responsibility
assumed in discharge of the duties of office. A General Partner also will be
entitled to a reimbursement for all reasonable and necessary business expenses
incurred in the administration of the Partnership.
6.3 VOTING THE PARTNERSHIP'S REPUBLIC BANCORP, INC. SHARES.
6.3(a) If the Partnership owns any shares of Republic Bancorp,
Inc. ("Republic") stock, then the Managing or Co-Managing General Partner's
right to vote the Republic shares will be limited as herein provided. The right
to direct the voting of Republic stock will be vested in a committee composed of
at least three persons to be known as the "Voting Committee." The Voting
Committee will consist of at least one limited partner. The initial members of
the Voting Committee who will serve as such until their successors are appointed
and assume such position on the Committee will be Xxxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, and Xxxxx Xxxxxx. In the event any person who is then
serving as a member of the Voting Committee resigns or is otherwise unable to
continue to serve as such, then the remaining members of the Voting Committee
will appoint the successor Voting Committee member.
6.3(b) The Voting Committee's right to direct the Managing or
Co-Managing General Partner in voting Republic shares applies to each matter
which is brought before an annual or special meeting of the shareholders of
Republic stock. Before each such shareholders' meeting the Managing or
Co-Managing General Partner will provide the Voting Committee with copies of all
proxy solicitation materials pertaining to the exercise of such rights, and such
materials will contain all the information distributed to other Republic
shareholders. The Voting Committee will then determine, by majority vote, how to
direct the Managing or Co-Managing General Partner to vote the shares of
Republic stock.
6.3(c) The Voting Committee's decisions will be binding and
conclusive on the Managing and/or Co-Managing Partner, who will vote all shares
of Republic stock in accordance with the directions of the Voting Committee.
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6.4 LIABILITIES OF THE GENERAL PARTNERS. The General Partners and their
agents will not be liable, responsible or accountable in damages or otherwise,
to the Partnership or to any of the Partners for any acts performed or omitted
to be performed in good faith. Such good faith errors will mean mistakes of
judgment or losses due to such mistakes or to the negligence or bad faith of any
employee, broker, advisor or other agent or representative of the Partnership
(provided that such agent or representative was selected with reasonable care).
The General Partners may consult with legal counsel selected by the Co-Managing
General Partners and will have no liability for the consequences of any action
or omission resulting from good faith reliance on the advice of such counsel.
The exculpation provided in this section shall apply to the agents, employees
and other legal representatives of each General Partner.
6.5 OTHER INTERESTS. The General Partners and the Limited Partners may
engage in or possess interests in other business ventures of every nature and
description, whether or not competitive with the business of the Partnership,
independently or with others, and neither the Partnership nor any Partner will,
by virtue of this Agreement, have any rights in or to such other ventures or the
income or profits derived therefrom.
6.6 STANDARD OF CARE OF GENERAL PARTNERS; INDEMNIFICATION.
6.6(a) A General Partner will not be liable, responsible or
accountable in damages to any Partner, or the Partnership, for any act or
omission on behalf of the Partnership performed or omitted by such General
Partner in good faith and in a manner reasonably believed by such General
Partner to be within the scope of the authority granted to the General Partners
by this Agreement and in the best interests of the Partnership, unless such
General Partner has been guilty of gross negligence or willful misconduct with
respect to such acts or omissions.
6.6(b) The Partnership will indemnify the General Partners for,
and hold the General Partners harmless from, any loss or damage incurred by the
General Partners by reason of any act or omission so performed or omitted by the
General Partners (and not involving gross negligence or willful misconduct).
6.7 LIMITED PARTNERS. Except for the voting rights that may be held by a
Limited Partner who is also a member of the Voting Committee, as provided above,
no person in such person's capacity as a Limited Partner will have any voice in
or take part in the management of the business or affairs of the Partnership or
have the right or authority to act for or bind the Partnership. The Limited
Partners will not be liable for any of the losses, debts or liabilities of the
Partnership in excess of their respective Capital Contributions and any profits
allocated to their Capital Accounts, except as otherwise expressly provided by
law. General Partners may also be Limited Partners.
7. WITHDRAWAL.
7.1 RESTRICTIONS ON WITHDRAWAL, SUBSTITUTION AND TRANSFER. This Limited
Partnership was formed by a family, a closely-held group, and they know, depend
upon, and trust one another, and have either surrendered certain management
rights in exchange for limited liability (as in the case
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of Limited Partners) or assumed sole management responsibility and risk (as in
the case of a General Partner), based upon their relationship and trust.
Furthermore, as Capital is also material to the business and investment
objectives of the Partnership and its federal tax status, any unauthorized
substitution or transfer of a Partner's interest in the Partnership could create
a substantial hardship on the Partnership, jeopardize its Capital base, and
adversely affect its tax structure. These restrictions on substitution and
transfer are intended merely as a method to protect and preserve the existing
relationships based upon the trust of the Partners and the Partnership's capital
and its financial ability to continue.
7.2 NO WITHDRAWAL BY GENERAL PARTNERS.
7.2(a) No General Partner may withdraw from the Partnership
before its dissolution.
7.2(b) Any General Partner, who, notwithstanding the
prohibition on withdrawal as set forth above, gives written notice of such
Partner's intention to withdraw as provided in Section 362.463 of the Kentucky
Uniform Limited Partnership Act will be entitled to a distribution equal to the
lesser of the following:
7.2(b)(1) The General Partner's Capital Account as of
the close of the month following the date the other Partners receive
the withdrawing General Partner's notice of withdrawal ("Effective
Date"). Such Capital Account will be adjusted to reflect such General
Partner's share of the profit or loss of the Partnership through the
Effective Date and contributions by, and distributions to, such
General Partner since the close of the Partnership's last Fiscal Year
to the extent such adjustments have not already been reflected in the
Capital Account of such General Partner on the Partnership's books; or
7.2(b)(2) The fair market value of his General Partner
interest as determined hereinafter.
7.2(b)(3) Further, such distribution will be reduced
by any damages attributable to such Partner's breach of this
Agreement.
7.3 WITHDRAWALS BY LIMITED PARTNERS. No Limited Partner, including those
Limited Partners who are also General Partners, may withdraw from the
Partnership prior to its dissolution.
8. TRANSFERS; SUBSTITUTION; ADDITIONAL PARTNERS
8.1 ASSIGNMENT OF LIMITED PARTNER'S INTEREST. The Limited Partners may not
sell, assign, transfer, pledge, hypothecate, or otherwise dispose of all or any
portion of their Limited Partner interests, except as provided below. Any
purported assignment, transfer, etc. which is prohibited by this Agreement will
be null and void and of no force or effect.
8.2 VOLUNTARY TRANSFERS OF LIMITED PARTNER'S INTERESTS.
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8.2(a) If any Limited Partner ("TRANSFEROR L.P.") receives a
bona fide written offer that the Transferor L.P. desires to accept ("TRANSFEREE
OFFER") from any person ("TRANSFEREE") to purchase all, but not less than all,
of the Transferor L.P.'s Limited Partnership interests, then, before any
transfer of the Transferor L.P.'s Limited Partner interests ("TRANSFEROR
INTEREST"), the Transferor L.P. will give the other Partners and the Partnership
written notice ("TRANSFER NOTICE") containing the following:
8.2(a)(1) the proposed Transferee's identity;
8.2(a)(2) a true and complete copy of the
Transferee Offer; and
8.2(a)(3) the Transferor L.P.'s offer ("OFFER") to
sell the Transferor Interest to the other Partners or to the
Partnership, as the case may be, at the lower of the Transferor
Interests' fair market value as determined herein or the price in the
Transferee Offer and at the other terms and conditions set forth in
the Transferee Offer.
8.2(b) Each of the other Partners will have the first option to
purchase the Transferor Interest in accordance with their percentages of
Partnership Interests in the Partnership or such other percentages as they may
unanimously agree upon. If not all of the other Partners elect to purchase, then
those Partners electing to purchase will have the right to purchase the balance
of the Transferor Interest in accordance with their respective percentages of
Partnership Interests among themselves, or in such other percentages as they may
unanimously agree.
8.2(c) If the other Partners fail to purchase all of the
Transferor Interest, then the Partnership will have the right to purchase the
remaining balance of the Transferor Interest
8.2(d) The Offer will be and remain irrevocable for 60 days
following the date the Transfer Notice is properly delivered to the other
Partners and to the Partnership ("OFFER PERIOD"). At any time during the Offer
Period, the other Partners or the Partnership or both may accept the Offer by
notifying the Transferor L.P. in writing. If the Offer is accepted, then the
parties will fix a closing date for the purchase, which will not be earlier than
ten, nor more than 90, days after the expiration of the Offer Period.
8.2(e) If the Offer is accepted by any other Partners or the
Partnership or both, as the case may be, the purchasing Partners or Partnership
may elect to pay the purchase price either in accordance with the terms and
conditions set forth in the Offer or in accordance with the terms and conditions
of this Agreement.
8.2(f) If all of the Transferor Interest is not purchased by
either the other Partners or the Partnership, then the Transferor L.P. will be
free, for a period of 30 days after the expiration of the Offer Period ("FREE
TRANSFER PERIOD") to transfer the Transferor Interest to the Transferee for the
same or greater price and on the same terms and conditions as set forth in the
Transferee Offer. If the Transferor L.P. does not transfer the Transferor
Interest within the Free Transfer Period, the
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Transferor L.P.'s right to transfer the Transferor Interest pursuant to the
terms and conditions set forth herein will expire.
8.2(g) Any transfer by the Transferor L.P. after the last day
of the Free Transfer Period or without the strict compliance with the terms,
provisions, and conditions of this Agreement will be null and void and of no
force and effect whatsoever.
8.2(h) Notwithstanding anything in this Agreement to the
contrary, Limited Partners may make gifts of their Limited Partnership Interests
to Permitted Transferees. For purposes of this Agreement, "PERMITTED TRANSFEREE"
means (i) any other Partner; (ii) the Partner's estate, spouse, lineal
ancestors, descendants by birth or adoption, siblings; (iii) charitable
organizations; and (iv) trusts for the exclusive benefit of a Partner or trusts
for any of the other foregoing enitities or individuals. Upon compliance with
the requirements for admission as a substitute Limited Partner as set forth this
Agreement, the donee may become a Substitute Limited Partner with respect to the
Partnership Interests transferred.
8.3 INVOLUNTARY TRANSFERS OF LIMITED PARTNER INTERESTS.
8.3(a) If any Limited Partner's Partnership Interest is sought
to be transferred by any involuntary means (other than death or adjudication of
incompetency or insanity), including, but not limited to, attachment,
garnishment, execution, bankruptcy, insolvency, levy or seizure, then such
Limited Partner's Partnership Interest will be purchased as follows.
8.3(b) Each of the other Partners will have the first option
to purchase in accordance with their percentages of Partnership Interests in the
Partnership or such other percentages as they may unanimously agree upon. If not
all of the other Partners elect to purchase, then those Partners electing to
purchase will have the right to purchase the balance of the offered Partnership
Interest in accordance with their respective percentages of Partnership
Interests among themselves, or in such other percentages as they may unanimously
agree.
8.3(c) If the other Partners fail to purchase all of the
interest sought to be involuntarily transferred, then the Partnership will have
the right to purchase the remaining balance of such Partnership Interest.
8.3(d) The option to the other Partners and to the Partnership
to purchase the interest sought to be involuntarily transferred is hereinafter
referred to as the "INVOLUNTARY OPTION."
8.3(e) The Involuntary Option period of the other Partners and
the Partnership will commence upon their receipt of actual notice of the
attempted involuntary transfer and will terminate, if not exercised, 60 days
thereafter, unless sooner terminated by written refusal of the other Partners.
An election to exercise any Involuntary Option will be made in writing and
transmitted to the Limited Partner whose Partnership Interest is sought to be
involuntarily transferred.
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8.3(f) Upon the failure or neglect of the other Partners or the
Partnership to purchase, in accordance with this Section, all of the Partnership
Interest sought to be involuntarily transferred, the unpurchased Partnership
Interest may be involuntarily transferred, but such transferee may not become a
Substitute Limited Partner unless the requirements for becoming a Substitute
Limited Partner as set forth in this Agreement are satisfied. Nevertheless, such
transferee will be subject to this Agreement's terms and conditions.
8.3(g) If, notwithstanding the provisions of this Agreement,
any Partnership Interest is transferred by involuntary means without compliance
with the terms and conditions of this Agreement, then the Involuntary Option
will be to purchase such Partnership Interest from the transferee(s).
8.3(h) The purchase price for all of a Limited Partner's
Partnership Interests to be purchased pursuant to the exercise of the
Involuntary Option will be the Limited Partner's Capital Account as of the close
of the month following the exercise of the Involuntary Option ("EFFECTIVE
DATE"). Such Capital Account will be adjusted to reflect such Limited Partner's
share of the profit or loss of the Partnership through the Effective Date and
contributions by, and distributions to, such Limited Partner since the close of
the Partnership's last Fiscal Year to the extent such adjustments have not
already been reflected in the Capital Account of such Limited Partner on the
Partnership's books. The purchaser will pay the purchase price pursuant to the
terms of this Agreement.
8.3(i) The closing date will occur on or before 30 days following
the exercise of the Involuntary Option. At the closing, the selling Limited
Partner will execute such instruments of assignment as shall be required by the
purchasing Partner(s) or the Partnership, so as to transfer the Partnership
Interests being sold free and clear of all liens, claims, security interests,
and encumbrances whatsoever. If the selling Limited Partner fails to execute
such documents, then either the Managing or Co-Managing General Partner may do
so pursuant to the power of attorney granted them in this Agreement.
8.4 DETERMINATION OF VALUE.
8.4(a) The value of a Partner's Limited or General Partner
interest, will be such interest's Fair Market Value. "Fair Market Value" will be
determined by the General Partners. If the withdrawing or transferor Partner
objects to the General Partners' determination of Fair Market Value, then such
value will be determined by an appraiser jointly chosen by the withdrawing or
transferor Partner and the General Partners. If the parties cannot agree on the
choice of one appraiser, then the General Partners will appoint an appraiser,
and the withdrawing or transferor Partner will appoint another appraiser. Each
party will bear the cost of their own appraisal. If the resulting appraisal
values are different and the higher appraisal value is less than 110 percent of
the lower appraisal, then the two appraisals will be averaged, and the averaged
value will be the deemed fair market value for the purposes of this Agreement.
If the higher appraisal value is more than 110 percent of the lower appraisal
value, then the Partnership's certified public accountant will appoint a third
appraiser and submit copies of the independent appraisals to the appraiser
selected by the accountant. The third appraiser will review both appraisals and,
on the basis of a review of the
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appraisals, will select the ONE appraisal which, in the opinion of the third
appraiser, is most correct. The decision of the third appraiser will be final
and the costs of such will be borne by the Partnership and will be accrued as a
liability of the Partnership.
8.4(b) Adjustments to Fair Market Value will be made as follows:
8.4(b)(1) To reflect any distributions made in the
regular course of business, between the Termination Date and the date
the Partnership begins payments in redemption of the Partnership
interest;
8.4(b)(2) To reflect the effect of the redemption of
the Partnership interest on the withdrawing Partner's interest, the
value of the total Partnership interests outstanding and the Capital
Account balances represented by the Partnership interests not
redeemed; and
8.4(b)(3) For purposes of determining the Fair Market
Value of a General Partner's interests, to reflect an assumption,
for appraisal purposes, that the withdrawal rights afforded a General
Partner in this Agreement do not exist.
8.5 PAYMENT OF PURCHASE PRICE. The purchase price for a Partner's interest
will be paid by the purchaser(s) in 120 equal monthly principal installments (or
the remaining term of the Partnership if less than 120 months) plus interest on
the unpaid principal balance at a rate equal to the prime rate charged by the
bank where the Partnership conducts its banking business. The interest rate will
be adjusted every six months. The first monthly installment will be due and
payable 120 days after the determination of value for the Partner's interest.
The purchaser(s) may prepay the entire unpaid principal balance at any time. In
the event of non-payment of any installment, the withdrawing Partner or the
deceased Partner's personal representative, as the case may be, may declare the
remaining payments in default and thereby require the immediate payment of the
entire unpaid principal balance with all accrued interest.
8.6 EXTENSION OF TIME FOR PAYMENT OF PURCHASE PRICE. Notwithstanding the
above, neither the Partnership nor the Partners will be required to make
payments for the purchase of more than one terminated or deceased Partner's
interest at any one time. If during the period of time in which the Partners or
the Partnership are making payments to purchase a Partner's interest, an event
occurs which would require the Partners or the Partnership to purchase an
additional Partner's interest, then the payments for such Partner's interest
will become due and payable 30 days after the completion of payments for the
purchase of the previously withdrawing or transferring Partner's interests. The
purchasing party will issue a promissory note setting forth the delayed payment,
with interest accruing thereon in accordance with these provisions. These
provisions only alter the timing of payments for a Partner's interest and do not
affect the determination of the Termination Date, the amount of the Purchase
Price, and all other rights and obligations provided herein.
8.7 DEATH OR INCAPACITY OF LIMITED PARTNER. The death, adjudication or
incompetency, or insanity of a Limited Partner will not dissolve the
Partnership. In the event of such death, adjudication of incompetency, or
insanity, the legal representative or legal successor of the deceased
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or incompetent Limited Partner who has legal control of or inherits his Limited
Partner interests will be deemed the assignee of the entire Limited Partner
interests of the deceased or incompetent Limited Partner and may be admitted as
a Substitute Limited Partner if the requirements for becoming a Substitute
Limited Partner as set forth in this Agreement are satisfied. The estate of the
deceased or incompetent Limited Partner will be liable for any of his
liabilities and obligations to the Partnership and in his capacity as Limited
Partner.
8.8 SUBSTITUTE LIMITED PARTNERS. No assignee or transferee of a Limited
Partner's interest in the Partnership will have the right to become a substitute
Limited Partner unless all of the following conditions are satisfied:
8.8(a) The General Partners have received, in form and substance
satisfactory to them, a written instrument executed by the transferor, which
instrument transfers to the transferee all or part of the transferor's
Partnership interests;
8.8(b) The transferor and transferee execute and acknowledge such
other instruments as the General Partners may, in the General Partner's sole
discretion deem necessary or desirable to effect such admission, including the
transferee's written acceptance and adoption of this Agreement's terms and
conditions;
8.8(c) The assignee/transferee has paid or agreed to pay, as the
General Partners may determine, all reasonable expenses relating to such
admission; and
8.8(d) All of the General Partners have unanimously consented in
writing to the assignee's/transferee's admission as a substitute Limited
Partner.
8.9 TRANSFERS OF GENERAL PARTNERSHIP INTERESTS.
8.9(a) The General Partners may not sell, assign, transfer,
pledge, hypothecate, encumber, or otherwise dispose of their General Partner
interests, without the prior written consent of the other General Partner(s) and
a majority of the Limited Partners. Any purported assignment, transfer, etc. in
contravention of this Agreement will be null and void and of no force or effect.
8.9(b) Notwithstanding anything in this Agreement to the
contrary, in the event of the General Partner's death, the decedent's General
Partner interests will pass to the General Partner's estate (executor, personal
representative, administrator, trustee or assignee). However, the General
Partner's estate will only be a transferee of the General Partner interest and
may only become a substitute General Partner if the requirements for becoming a
Substitute General Partner, as set forth herein, are satisfied.
8.9(c) The transferee of a General Partner interest may not be
admitted as a substitute General Partner without the written consent of all the
General Partners. If there are no other General Partners, then such transferee
may be admitted only with the written consent of a majority of the Limited
Partnership interests.
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8.9(d) Further, the transferee must have approved and adopted
all of the provisions of this Agreement, as the same may have been amended,
which approval and adoption may be evidenced in such manner as is required by
the General Partners.
8.9(e) If the transferee does not receive the necessary consent
of the General or Limited Partners, as the case may be, but otherwise satisfies
the requirements of this Agreement, such General Partner interests will be
deemed Limited Partner interests in the hands of the transferee, and such
transferee will be deemed admitted only as a substitute Limited Partner with
respect thereto, and will not be deemed a General Partner for any purposes.
8.10 INCAPACITY OF A GENERAL PARTNER
8.10(a) At the commencement of this Partnership, there will be
two General Partners, Xxxxxxx Xxxxxx and Xxxxxx X. Xxxxxx, with both General
Partners being Co-Managing General Partners. In the event of a Co-Managing
General Partner's illness or incapacity, the remaining Co-Managing General
Partner will be authorized and empowered to act for the partnership as the
Managing General Partner, and in his name and place take all actions and do all
things as a Managing General Partner.
8.10(b) In the event a Co-Managing General Partner has ceased to
serve or is unable to serve, by reason of death, incapacity, or absence, the
other Managing General Partner will have the right and authority to execute an
amendment to the Certificate of Limited Partnership, as attorney-in-fact for the
withdrawing General Partner.
8.10(c) If any Partner is an individual person, then any person
acting under a durable power of attorney or Letters of Guardianship or Committee
may exercise all of the Partner's rights and voting authority for and on behalf
of his or her principal and will be entitled to receive any distributions from
the Partnership for and on behalf of the disabled Partner.
8.11 SUCCESSOR GENERAL PARTNER. Notwithstanding anything in this Agreement
to the contrary, upon the death or incapacity of Xxxxxxx Xxxxxx, Xxxx Xxxxxx
will become a General Partner by converting 1 percent of her then outstanding
Limited Partner interests into a 1 percent General Partner interest. If Xxxx
does not then own any Limited Partner interests, the Partnership will issue to
her a 1 percent General Partner interest under the terms and conditions of this
Agreement governing the issuance of Additional Partnership Interests. Xxxx will
execute this Agreement as a General Partner promptly after her admission as
such. Further, Xxxx will have no liability for debts and obligations of the
Partnership that were outstanding on the date when she becomes a General
Partner, except to the extent provided under the Kentucky Uniform Limited
Partnership Act.
8.12 FIDUCIARIES AS PARTNERS.
8.12(a) FIDUCIARY CAPACITY. A Partner may own one or more
interests in a fiduciary capacity, such as a trustee under a trust agreement, as
an executor or a personal representative of an estate, or as a custodian. Except
as hereinafter provided, such fiduciary will have no interest or
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obligation individually with respect to any such interests, but will be
considered as acting solely in such fiduciary capacity. If a Partner acting in a
fiduciary capacity ceases to act as such, the successor fiduciary shall be a
Partner in the same fiduciary capacity with the same rights and obligations as
the predecessor fiduciary. A person may be a Partner in an individual capacity
and a Partner in one or more fiduciary capacities.
8.12(b) REVOCABLE TRUSTS. An individual Partner that holds his
or her interests as trustee under a Revocable Trust that has not been admitted
as a Partner will be considered to have the same duties and responsibilities to
the Partnership that such individual would have if he or she held the interests
individually. The Trust shall be admitted as a Partner upon the approval of the
General Partners and upon approval and adoption of all of the provisions of this
Agreement, as the same may have been amended, which approval and adoption may be
evidenced in such manner as is required by the General Partners.
8.13 ADDITIONAL PARTNERS.
8.13(a) Additional Partnership interests may be issued and sold
by the General Partners to any person including, but not limited to, a natural
person, trust, corporation, partnership or other association, for fair market
value as determined by the General Partners using their reasonable business
judgment, and under such terms as deemed advisable by the General Partners.
Admission of any Partner will not be a cause of dissolution.
8.13(b) The Partnership will admit any New Partners upon their
approval and adoption of all of the provisions of this Agreement, as the same
may have been amended, which approval and adoption may be evidenced in such
manner as is required by the General Partners.
9. FEDERAL INCOME TAX MATTERS
9.1 DISTRIBUTIVE SHARES. For purposes of Subchapter K of the Internal
Revenue Code, the distributive shares of the Partners of each item of
Partnership taxable income, gains, losses, deductions or credits for any Fiscal
Year will be in the same proportions as their respective shares of the net
income or net loss of the Partnership allocated to them pursuant to the terms of
this Agreement. Notwithstanding the foregoing, to the extent not inconsistent
with the allocation of gain provided for herein, gain recognized by the
Partnership which represents ordinary income by reason of recapture of
depreciation or cost recovery deductions for Federal income tax purposes will be
allocated to the Partner (or the Partner's successor-in-interest) to whom such
depreciation or cost recovery deduction to which such recapture relates was
allocated.
9.2 ELECTIONS. The election permitted by Code Section 754, and any
other elections required or permitted to be made by the Partnership under the
Code, will be made by the Co-Managing General Partner in such Co-Managing
General Partner's sole and absolute discretion.
9.3 TAX MATTERS PARTNER. The General Partners will from time to time
designate a Tax Matters Partner pursuant to Code Section 6231(a)(7).
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10. DISSOLUTION AND WINDING-UP
10.1 EVENTS OCCASIONING DISSOLUTION. The Partnership will dissolve and
terminate upon the occurrence of any of the following events, whichever shall
first occur:
10.1(a) The occurrence of an event of withdrawal by a General
Partner under Section 362.445 of the Kentucky Uniform Limited Partnership Act;
provided, however, if there is a remaining General Partner such remaining
General Partner will be obligated to continue the Partnership. Further, in the
event there are no remaining General Partners, then within 90 days of such event
of withdrawal, the Limited Partners, if they own more than 50 percent of the
outstanding partnership interests (excluding any Limited Partnership interests
held by a General Partner(s) whose withdrawal gave rise to the dissolution) may,
by unanimous written consent, agree to the appointment of a succesor General
Partner, effective as of the date of withdrawal of a General Partner(s).
10.1(b) December 31, 2036;
10.1(c) The written consent of all the Partners to dissolve the
Partnership;
10.1(d) Subject to the Partners' waiver of the right to seek
judicial dissolution, an entry of a decree of judicial dissolution otherwise
occurring under the Kentucky Uniform Limited Partnership Act.
10.2 WINDING-UP. The Partnership will be allowed one year from the date of
any event occasioning dissolution for the winding-up of its affairs and shall be
allowed such additional time as may be reasonable for the orderly sale of the
Partnership properties.
10.3 EVENTS NOT OCCASIONING DISSOLUTION. The Partnership will not dissolve
upon the death, bankruptcy, adjudication of incompetency or insanity, withdrawal
or assignment of the Partnership Interest of a Limited Partner. In any such
event, the General Partners will have the right and duty to continue the
business of the Partnership under the terms of this Agreement.
11. MISCELLANEOUS
11.1 NON-FAMILY MEMBER PARTNER. This Partnership will always have at least
one "Non-Family Member Partner." A "Non-Family Member Partner" means a partner
who is not a member of the Xxxxxx family, as the word "family" is defined in
Section 2704(c) of the Internal Revenue Code of 1986, as amended.
11.2 AMENDMENTS. This Agreement may be amended from time to time upon the
written consent of all of the General Partners and of the Non-Family Member
Partner. However, this Agreement will not be amended to change any Partner's
share of the liabilities or distributions without the consent of such Partner.
11.3 NOTICES.
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11.3(a) All notices, requests, demands or other communications
required or permitted under this Agreement will be in writing and be personally
delivered against a written receipt, delivered to a reputable messenger service
(such as Federal Express, DHL Courier, United Parcel Service, etc.) for
overnight delivery, transmitted by confirmed telephonic facsimile (fax), or
transmitted by mail, registered, express or certified, return receipt requested,
postage prepaid, addressed as follows:
11.3(a)(1) If given to the Partnership, to the
Partnership at its principal office; or
11.3(a)(2) If given to a Partner, to the Partner
at the address set forth on the records of the Partnership.
11.3(b) All notices, demands and requests will be effective upon
being properly personally delivered, upon being delivered to a reputable
messenger service, upon transmission of a confirmed fax or upon being deposited
in the United States mail as herein provided. However, the time period in which
a response to any such notice, demand or request must be given will commence to
run from the date of personal delivery, the date of delivery by a reputable
messenger service, the date on the confirmation of a fax or the date on the
return receipt, as applicable.
11.4 NO DELIVERY OF CERTIFICATES. The General Partners are not required to
deliver copies of any Certificate of Limited Partnership or amendment or
cancellation to the Limited Partners.
11.5 GOVERNING LAW. This Agreement will be construed in accordance with
and governed by the laws of the State of Kentucky.
11.6 ARBITRATION. The parties will submit any and all disputed issues to
final and binding arbitration. A disputed issue means any disagreement in regard
to any of the terms and conditions of this Agreement and any dispute between the
parties concerning their relationships, including issues not directly covered by
this Agreement. Any such dispute will not be subject to appeal to any court
except to permit a party to seek court enforcement of any arbitration award
rendered hereunder. If the parties agree to the appointment of a single
arbitrator, then the single arbitrator will determine and decide any dispute
arising hereunder. If the parties cannot agree to the selection of a single
arbitrator, then each party will designate an attorney to serve as an
arbitrator, and the selected attorneys will select an arbitrator, who is a
certified public accountant, to be the third arbitrator. The arbitrator(s) will
establish rules for the conduct of the arbitration consistent. The arbitrator(s)
will be impartial with the rules of the American Arbitration Association, and
KRS 417.050 et seq. and will have no prior or present relationship with any of
the parties. The arbitration hearing and proceedings will take place in the
State of Kentucky, and will be enforceable in the State of Kentucky. The
arbitrator(s) will be empowered to hear, conclusively determine and resolve all
claims and disputes between the parties. Arbitration fees and expenses will be
shared equally by the parties to the arbitration. The parties agree that all
matters to be arbitrated and the arbitration award will be maintained on a
confidential basis. All issues and the results thereof will not be disclosed by
the parties or their representatives, and the parties and their representatives
will not report any of
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their proceedings to the public. These provisions will not prohibit any party
from securing witnesses, experts, or other advisors as is necessary in order for
the parties to present their case, etc.
11.7 POWER OF ATTORNEY.
11.7(a) Each Partner, in accepting this Agreement, makes,
constitutes and appoints the Co-Managing General Partners with full power of
substitution, as the Partner's attorney-in-fact and personal representative to
sign, execute, certify, acknowledge, file and record the Certificate of Limited
Partnership, and to sign, execute, certify, acknowledge, file and record all
appropriate instruments amending this Agreement, and the Certificate of Limited
Partnership on behalf of the Partner. In particular, the Co-Managing General
Partners, as attorney-in-fact, may sign, acknowledge, certify, and file and
record on the behalf of each Partner such instruments, agreements, and documents
that:
11.7(a)(1) Reflect the exercise by the Co-Managing
General Partner of any of the powers granted to him under this
Agreement;
11.7(a)(2) Reflect any amendments made to this
Agreement;
11.7(a)(3) Reflect the admission or withdrawal of a
General or Limited Partner; and
11.7(a)(4) May otherwise be required of the
Partnership or a Partner by Federal or State law, or the law of
any other applicable jurisdiction.
11.7(b) The power of attorney herein given by each Limited Partner
is a durable power and will survive the disability or incapacity of the
principal. Further, this power of attorney is irrevocable and a power coupled
with an interest; therefore, it will not be revoked by the death, dissolution or
termination of any Partner.
11.8 PARTITION. The Partners agree that no Partner, nor any successor in
interest to any Partner, will have the right, while this Agreement remains in
effect, to have any of the Partnership's property partitioned, or to file a
complaint or otherwise institute any suit, action, or proceeding at law or in
equity to have any of the Partnership's property partitioned. Further, each
Partner, on behalf of himself, his successors, heirs, and assigns hereby waives
any such right.
11.9 WAIVER OF RIGHT TO COURT DECREE OF DISSOLUTION. The parties agree that
irreparable damage would be done to the Partnership's good will and business
affairs if any Partner should bring an action in court to dissolve the
Partnership. Care has been taken in this Agreement to provide what the parties
feel is fair and just payment in liquidation of the Partnership interests of all
Partners. Accordingly, each party hereby waives and renounces his or her right
to a court decree of dissolution or to seek court appointment of a receiver
and/or liquidator for the Partnership, under any statutory, common law, or
regulatory rule, except as may be sought by the Partnership.
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11.10 AGREEMENT BINDING. This Agreement will be binding upon the next of
kin, heirs, executors, administrators, successors and assigns of the parties
hereto.
11.11 INVALID PROVISIONS. The invalidity or unenforceability of a particular
provision of this Agreement will not affect the other provisions hereof, and the
Agreement will be construed in all respects as if such invalid or unenforceable
provisions were omitted.
11.12 WAIVER. The failure to exercise any of the terms and conditions by the
parties will not be construed as a waiver of any other terms and conditions by
the parties, and, in addition, all terms and conditions hereof will be deemed to
be cumulative and the exercise of any term or condition by the parties will not
be deemed a waiver of any other right, and a failure to exercise any right will
not be deemed a waiver to exercise any other right at that time or at any other
time or times.
11.13 THIRD PARTY BENEFICIARIES. This Agreement does not create, and will
not be construed as creating, any rights enforceable by any person not a party
to this Agreement. In order to evidence their understanding of and agreement to
all the terms and conditions of this instrument, the parties have signed
multiple copies of this Agreement, each one of which, when signed by all the
parties, will be considered an original.
DATED: December 30, 1996.
GENERAL PARTNERS:
/S/ XXXXXXX X. XXXXXX /S/ XXXXXXX XXXXXX XXXXXX
XXXXXXX X. XXXXXX, XXXXXXX XXXXXX XXXXXX, LIMITED PARTNER
CO-MANAGING GENERAL PARTNER
/S/ XXXXXX X. XXXXXX /S/ XXXXX XXXXXX
XXXXXX X. XXXXXX, XXXXX XXXXXX, LIMITED PARTNER
CO-MANAGING GENERAL PARTNER
LIMITED PARTNERS: /S/ XXXXXXXX X. XXXXXXX VP&TD
PNC BANK KENTUCY, INC.
TRUSTEE OF THE XXXXXXX XXXXXX TRUST
/S/ XXXXXXX X. XXXXXX UNDER AGREEMENT
XXXXXXX X. XXXXXX, LIMITED PARTNER DATED DECEMBER 23, 1985, LIMITED
PARTNER
/S/ XXXX X. XXXXXX
XXXX X. XXXXXX, LIMITED PARTNER /S/ XXXXXX X. XXXXXX
XXXXXX X. XXXXXX,
TRUSTEE OF THE XXXXXX X. XXXXXX
/S/ XXXXXX X. XXXXXX REVOCABLE TRUST UNDER AGREEMENT,
XXXXXX X. XXXXXX, LIMITED PARTNER DATED APRIL 3, 1995, LIMITED PARTNER
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/S/ XXXXXXX X. XXXXXX /S/ XXXXXXX X. XXXXXX
XXXXXXX X. XXXXXX, XXXXXXX X. XXXXXX,
TRUSTEE OF THE XXXXXX XXXXXX TRUST, TRUSTEE OF THE XXXXX XXXXXX TRUST,
DATED DECEMBER 27, 1989, LIMITED DATED JANUARY 2, 1992, LIMITED PARTNER
PARTNER
/S/ XXXXXXX X. XXXXXX
/S/ XXXXXXX X. XXXXXX, XXXXXXX X. XXXXXX,
TRUSTEE OF THE XXXXXXX XXXXXX TRUST, TRUSTEE OF THE XXXXX XXXXXX TRUST,
DATED DECEMBER 27, 1989, LIMITED DATED JUNE 1, 1992 LIMITED PARTNER
PARTNER
/S/ XXXXXXX X. XXXXXX
XXXXXXX X. XXXXXX,
TRUSTEE OF THE XXXXX XXXXXX TRUST,
DATED DECEMBER 27, 1989, LIMITED
PARTNER
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AMENDMENT NO. 1
TO
AGREEMENT OF LIMITED PARTNERSHIP
FOR
THE JAYTEE PROPERTIES LIMITED PARTNERSHIP
Section 11.2 of The Agreement of Limited Partnership for The Jaytee
Properties Limited Partnership, effective December 30, 1996, (the "Partnership
Agreement") provides that the Partnership may be amended from time to time upon
the written consent of the General Partners and the "Non-Family Member Partner."
The General Partners and the Non-Family Member Partner now deem advisable
amendments to the Partnership Agreement as set forth herein, effective as of
February 6, 1998.
The following Section is added to the Partnership Agreement:
6.8 FIDUCIARY DUTY OF PARTNERS. Notwithstanding anything herein to the contrary,
each of the Partners shall have a fiduciary duty of good faith, loyalty, and
fair dealing towards the Partnership and the other Partners. Accordingly, each
Partner is required to refrain from any activity which is or may be detrimental
to each Partner's or the Partnership's best interests or which interferes with
the objectives for which the Partnership has been organized.
In all other respects, the Partnership Agreement, as initially adopted
effective December 30, 1996, shall remain in full force and effect.
IN TESTIMONY WHEREOF, this Amendment has been executed, in multiple
counterparts, any one of which may be considered an original, February 6, 1998.
/S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, General Partner
/S/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx, General Partner
/S/ XXXXX XXXXXX
Xxxxx Xxxxxx, Limited Partner ("Non-
Family Member Partner)
